JUDGMENT - HALBE A.A., J.:—The important question about the scope of Government of Maharashtra Circular issued in Rural Development Department being No. VPF 1575/3275/XXIII, dated 6th May, 1976 has been raised in this application. Whereas according to the learned advocate for the petitioner, the scope of this Circular is not limited to specific amounts of misappropriation, the learned Additional Public Prosecutor has contended that the scope of this Circular is confined only to misappropriation of small amounts and offences of technical nature. 2. The peculiar facts of the prosecution case have given rise to this controversy. The respondent Naib Tahsildar, Newasa lodged a complaint dated 30th August, 1988 in relation to misappropriation of Rs. 45,269-05 Ps. by the present petitioner-Natha Shankar Kutharwade, working as Talathi of Khedle Permanand and Shiregaon villages. He had collected Rs. 36,894-55 Ps. as Education Cess and Employment Guarantee Scheme Tax between 26-5-1987 to 15-5-1988. Those amounts were collected from Permanand Khedle village under various receipts. Further he collected Rs. 8,374-50Ps. under the same heads from village Shiregaon between 29-12-1987 to 25-1-1988. He misappropriated these amounts which came to light and for which the necessary books were examined on 2-7-1988 and 3-7-1988. The notice in this regard was issued on 5-7-1988 and the same was received by the petitioner on 6- 7-1988 and it is claimed by the petitioner that he deposited the entire amount above mentioned on 7-7-1988 under various Challans. Despite this fact the prosecution was lodged against him under section 409, Indian Penal Code being Criminal Case No. 184/1990 in the Court of Chief Judicial Magistrate. Ahmednagar. Before the learned trial Judge, the petitioner made an application dated 12-3-1990 praying for dismissal of the case on the ground that the petitioner had deposited the amount in less than 15 days of the notice about misappropriation and this act on the part of the petitioner was in complete compliance with the conditions laid down in the Circular. He, therefore, prayed to the Court that the prosecution should be withdrawn in terms of Clause (a) of Part 2 of the above Circular. The learned Judge, by his order dated 23-3-1990. was pleased to reject that request and the present situation is that the prosecution is pending against the petitioner. 3. He, therefore, prayed to the Court that the prosecution should be withdrawn in terms of Clause (a) of Part 2 of the above Circular. The learned Judge, by his order dated 23-3-1990. was pleased to reject that request and the present situation is that the prosecution is pending against the petitioner. 3. The petitioner has, therefore, preferred this application inter alia contending that it was the bounden duty of the prosecution to have withdrawn the prosecution in terms of the above Circular and despite this, the same has not been done and this Court should, therefore, quash the prosecution. Reliance is placed on the judgment of this Court reported in 1983(2) Bom.C.R. 424 in the case of (Dagadu Shamrao Deshmukh v. State of Maharashtra)1. Help is also sought from the judgment of this Court in (State of Maharashtra v. Narharrao)2, Cri.A. No. 76/1983, 27-6-1988. 4. The learned Advocate for the petitioner has contended that if the Circular is viewed in its correct perspective and also in the light of the ratio laid down by this Court in the above rulings, his case clearly comes within the scope of the Circular and hence he is entitled to the benefit of withdrawal of the prosecution, as is agreed by this Court in the cases noted above. He has further contended that in Para 2, although there is indirect reference to the cases of misappropriation of small amounts and the offences of technical nature, still that cannot limit the scope of the Circular. The above rulings clearly do not envisage any limitation on the question of amounts or on the question of technical nature of misappropriation. Although, therefore, the amount alleged to have been misappropriated is to the tune of Rs. 45,269-05 Ps., the fact remains that the entire amount had been paid on the next day of the issue of notice. It also cannot be taken into consideration, he has contended, that although the amounts alleged to have been misappropriated from the month of May, 1987 and repaid in July 1988, the benefit of the Circular cannot be denied to him in this background as well. It also cannot be taken into consideration, he has contended, that although the amounts alleged to have been misappropriated from the month of May, 1987 and repaid in July 1988, the benefit of the Circular cannot be denied to him in this background as well. He, therefore, squarely relies on the above Circular and has seriously urged that this Court should not dwell on the distinction between small amounts and large amounts or offences of technical nature but should feel bound by the view of this Court reported in the case of Dagadu Shamrao (supra). 5. Apparently the argument may sound very plausible but if the Circular is interpreted in its correct perspective, the said argument would appear to be hollow and devoid of substance. The question of misappropriation of the village funds has been haunting the Government right from 1970 or therebefore. The Government found that the prosecution of the delinquents for small amounts was not at all beneficial nor physically possible. There were instances of large number of cases of misappropriation of small amounts and the Government felt that the prosecution of the delinquents for small amounts would not only engage the Government machinery for a non-beneficial cause but it may occupy the public time of the courts for meagre benefits that may ultimately flow. 6. Various circulars have been referred in this Circular and they can be significantly noted in respect of the years of their issue. The first Circular is of November, 1970 whereas the other is of November, 1973. The third one is of 11th July, 1975 whereas the last which has been referred is of October, 1975. Those were related to the various orders dealing with the cases of misappropriation of village funds and the procedure for dealing with such cases. However despite so many Circulars, there was confusion in the matter of procedure to be followed in respect of misappropriation of amounts involving more than Rs. 200/- and less than Rs. 200/-. The Government found that the procedure did not make any difference or distinction between two types of cases indicated above. On the other hand, the Government found that common procedure was prescribed for all these cases. Even in the case of misappropriation of small amounts, being paid subsequently, the police investigation was not stopped or the cases were not withdrawn. The Government found that the procedure did not make any difference or distinction between two types of cases indicated above. On the other hand, the Government found that common procedure was prescribed for all these cases. Even in the case of misappropriation of small amounts, being paid subsequently, the police investigation was not stopped or the cases were not withdrawn. In order to clear off these confusions, the Government in para 2 of the Circular referred to a sort of preamble in passing Clauses (a), (b) and (c) of the said Circular. The Circular reads as follows :— Village Panchayats Misappropriation of funds of— Procedure for dealing with the cases of .... GOVERNMENT OF MAHARASHTRA Rural Development Department Circular No. VPC 1575/3275/XXIII Sachivalaya, Bombay 400 032, dated the 6th May, 1976. CIRCULAR Government has, from time to time, issued various orders for dealing with the cases of misappropriation of the village funds and the procedure for dealing with such cases was last revised under Government Resolution, Rural Development Department, No. VPF 1570/21116/E, dated 3rd November, 1970 read with Government Letter No. VPF 1572/31064/E dated 15th November, 1978 and Government Letters No. VPF 1574/C-2161 /E dated 11th July, 1975 and No. VPF 1575/3115/XXIV, dated 10th October 1975. The procedure as it exists today does not make any distinction between the cases involving amounts of more than Rs. 200/- or those involving lesser amounts as in the case of Talathis but there has been a common procedure for dealing with all the cases. Further it has been clarified, that even where the amounts misappropriated have either been received or made good by the delinquents the police investigation should not be stopped and where complaints have not been lodged and the misappropriated amounts made good, even then the complaints should be lodged subsequently. 2. It has now come to the notice of Government that in cases of misappropriation of very small amounts and offences of a technical nature the delinquents are being prosecuted by the Chief Executive Officer of the Zilla Parishads and proposals have been made to Government that prosecution should not be launched in such cases. Government has, therefore, again examined this aspect of the matter and is pleased to direct in modifications of the previous orders as follows... Government has, therefore, again examined this aspect of the matter and is pleased to direct in modifications of the previous orders as follows... (a) Where the amounts misappropriated have been fully recovered or paid by the delinquents within one month from the date of misappropriation being noticed, no prosecution should be launched and cases of this category already filed in the Court should be withdrawn. However this will not preclude the action against the Sarpanch/Upa-sarpanch or a member under section 39 of the Bombay Village Panchayats Act, 1958. (b) Where the offences involved in the misappropriation cases are merely technical in nature involving no financial or material implication, no prosecution need be launched. (c) Where the amount involved does not exceed Rs. 200/-. no prosecution should be launched against the delinquent Gram Sevaks subject to the condition that the amount misappropriated is recovered within one month from the date of misappropriation being noticed provided that the Gram Sevak concerned is involved in such instance only for the first time. The repeated irregularities of this kind by the same Gram Sevak should be dealt with appropriately. By order and in the name of the Governor of Maharashtra. sd/- I. D. Jadhav, Dy. Secretary to Government. 7. In the Preamble itself, the Government is shown anxious about the delinquents in respect of small amounts and technical faults being put to trial with no perspective or any tangible reasons. It is stated in Para 2 that it had come to the notice of Government that in cases of misappropriation of very small amounts and offences which are of technical nature, the delinquents were being prosecuted by the Chief Executive Officer of the Zilla Parishad and proposals have been made to the Government that prosecution should not be launched in such cases. This would, therefore, mean that the Government felt that when the misappropriation was of very small amounts or that the so called mis-appropriations were of technical nature, it was desirable that the Government servants should not be put to trial or that the prosecution should not be launched. The Government, therefore, directed in Clauses (a), (b) and (c) as follows. This would, therefore, mean that the Government felt that when the misappropriation was of very small amounts or that the so called mis-appropriations were of technical nature, it was desirable that the Government servants should not be put to trial or that the prosecution should not be launched. The Government, therefore, directed in Clauses (a), (b) and (c) as follows. Clause (a) provides that where the amounts misappropriated have been fully recovered or paid by the delinquents within one month from the date of misappropriation being noticed, no prosecution should be launched and in case the prosecutions were launched, the same should be withdrawn.. The only exception is in regard to prosecutions of Sarpanch and Upa-Sarpanch or member under Section 39 of the Bombay Village Panchayats Act, 1958. The meaning that can be deduced is that in case the delinquent repaid the amount within one month of the misappropriation coming to the notice of the Department, the Department should not file any prosecution. In case the prosecution is launched before the Circular coming into force, the same should be withdrawn. 8. The learned Advocate for the petitioner has heavily relied on this clause and has contended that nowhere in this clause there is reference to the small amounts being misappropriated. To this aspect, I shall come later. 9. Clause (b) relates to the misappropriation of technical nature involving no financial or material implication. It is in respect of technical defaults committed by the delinquents. By way of illustration, it can be stated that if the amount is misappropriated for a short period in breach of rules but deposited by the delinquent, that would tantamount to technical breach and thus technical misappropriation. The Government desired that no prosecution should be launched in such cases where ultimately there is no loss to the Government. The misappropriation is of temporary nature and it is difficult to infer that the delinquent wanted to misappropriate the amount permanently. 10. So far as Clause (c) is concerned, it is specifically laid down that where the amount involving does not exceed Rs. 200/-, no prosecution should be launched against the delinquent Gram Sewak subject to the condition that the amount misappropriated is recovered within one month from the date of misappropriation being noticed, provided that the Gram Sewak concerned is involved in such instance only for the first time. 200/-, no prosecution should be launched against the delinquent Gram Sewak subject to the condition that the amount misappropriated is recovered within one month from the date of misappropriation being noticed, provided that the Gram Sewak concerned is involved in such instance only for the first time. However in case such irregularity is committed by the Gram Sewak again, he should be appropriately dealt with. Clause (c), therefore speaks of only delinquent Gram Sewaks and no other and further the amount should not exceed Rs. 200/-. The other condition is that this should be the first instance of misappropriation on the part of-the said Gram Sewak. If these conditions are satisfied, Gram Sewak should be saved from prosecution. Clause (c), therefore, speaks only of Gram Sewaks and no others and the stipulations which can be invoked by the Gram Sewaks are as indicated above i.e. this is his first instance and that the amount is small i.e. Rs. 200/-. This can be the import of all the clauses. 11. The learned Advocate for the petitioner has contended that this Court in 1982 Mh.L.J. 559 in the case of Dagadu Shamrao Deshmukh v. State of Maharashtra, laid down the universal Rule that if the delinquent pays the amount within the stipulated period mentioned in the above Circular, prosecution is enjoined upon to withdraw prosecution and in the event of failure to withdraw prosecution, the proceeding should be quashed. The learned Advocate has taken me through the entire judgment and has contended that nowhere the Court has laid down the criterion of small amount and hence this ratio of this Court should be adopted. In this case the amount has been paid practically on the next day of the notice given by way of show cause notice and hence the petitioner is entitled to the full benefit of this Circular. However on going through the above ruling, it is clearly seen that the amount involved was Rs. 1,104.71 Ps. alleged to have been misappropriated by the delinquent within a period of six months between 1973 to 1974. However the delinquent had deposited the amount within the stipulated period after the same being noticed by the department. As indicated, the amount was of Rs. 1,104.71 Ps. Patently, therefore, this was a small amount and nowhere it was urged that the question of quantum of amount is relevant. However the delinquent had deposited the amount within the stipulated period after the same being noticed by the department. As indicated, the amount was of Rs. 1,104.71 Ps. Patently, therefore, this was a small amount and nowhere it was urged that the question of quantum of amount is relevant. The Court had not looked elsewhere to determine the extent of misappropriation. Undisputedly the this appropriation was of small amount and this Court was, therefore, not called upon to go into the question of quantum of the amount. Had this Court been required to decide that question, some relevant observations would have been found in the judgment. But as the size of the amount was small, this Court did not think it proper or even did not feel it necessary to refer to that aspect of the Circular. The Court felt that the delinquent could very well press into service the above Circular as the amount was not large. 12. Reverting back to the above preamble, it would be manifest that what was in the mind of the Government was the misappropriation of small amounts and by no means the misappropriation of large amounts. The Government knew that prosecuting the delinquent for small amount was not to bring in any tangible benefit. However that cannot be said about the large amounts defalcated by the delinquents. The Court in the above ruling has questioned the constitutional validity of this Circular but did not feel it necessary to go into the same because it was not called upon by either party to adjudicate upon it. But if this Circular is to be utilised for misappropriation of large amounts, per se this Circular would be struck down under Article 14 of the Constitution. The Government can well be said to have been aware of this constitutional infirmity and, therefore, could not have envisaged the misappropriation of large amounts. It is not comprehensible that the Government would relieve those delinquents who have committed defalcations of large amounts by following ingenious methods. 13. In this case, we find that the misappropriation has taken place in respect of Education Cess, Employment Guarantee Scheme Tax spread over the period of about one and half years at villages Khedle Permanand and Shiregaon. By no stretch of imagination, it can be said that this was either the misappropriation of small amount or that the misappropriation was of technical nature. By no stretch of imagination, it can be said that this was either the misappropriation of small amount or that the misappropriation was of technical nature. It is only when the show cause notice that was given, that the petitioner thought that he had no escape and that is why he immediately deposited the amount. He has utilised the amount of Rs. 45,000/- and odd for at least over a period of one year. He had, therefore, derived unlawful gain and has caused unlawful loss to the Government. Such case would not be covered under the above Circular and as stated above, this is very manifest from the preamble which applies only to misappropriation of small amounts and misappropriations of technical nature. 14. The learned Advocate for the petitioner has drawn my attention to the decision dated 8-4-1989 of this Court in Criminal Application No. 282/1988 in the case of (Anant Laxamanrao Dharme v. State of Maharashtra)3. In that case the misappropriation is said to be of Rs. 16,000/- and odd amount and still this Court was of the view that the same was covered under the above Circular. The learned Advocate has, therefore, contended that if this be the case, the same view should be adopted in the present case. However if the facts of that case are studied, they clearly reveal that there was in fact no misappropriation at all. The delinquent had received the salary to be disbursed amongst the employees on 4-2-1986. He disbursed about Rs. 3,449.50 Ps. on that date and the balance of Rs. 16,000/- and odd amount remained with the petitioner. The petitioner was taken ill possibly from 5-2-1986 upto 11-2-1986, the date on which he resumed his duties. The petitioner immediately applied to the Medical Officer for permission to deposit the amount but the same was not given. On the other hand, the petitioner in that case was prosecuted. 15. Now the facts of the above case would clearly show that there was no dishonest intent on the part of the delinquent. He could not deposit the amount because he was taken ill. But as soon as he resumed his duties, he expressed his readiness to deposit the amount but he was not allowed to do so. In the background of these facts it cannot be said that the petitioner in that case had committed even a temporary misappropriation. He could not deposit the amount because he was taken ill. But as soon as he resumed his duties, he expressed his readiness to deposit the amount but he was not allowed to do so. In the background of these facts it cannot be said that the petitioner in that case had committed even a temporary misappropriation. The observations in that judgment also reveal that there were no good reasons to disbelieve the petitioner's story of his illness. On merits, therefore, the Court felt that the conviction under section 409, Indian Penal Code was not warranted. In view of these facts, at best it could be said that there was technical defalcation on the part of the delinquent. The Court felt that the delinquent was entitled to the benefit of that Circular if withholding the amount for reasons beyond the control of the delinquent could be construed as misappropriation. 16. It is felt that the facts in this case are far more serious. The intention to commit misappropriation is established from the actions of the petitioner. He recovered taxes, retained them for long and deposited them only when the defalcation came to light. Again the amount was pretty large. Hence the view expressed in the above Criminal Application cannot assist the case of the present petitioner. The petitioner has also drawn my attention to Criminal Appeal No. 76/1983 in the case of State of Maharashtra v. Narharrao, decided on 27th June, 1988. On going through the judgment, I find that, judgment has really no bearing on the facts of this case. On the other hand, the learned Advocate for the petitioner has tendered the say of the petitioner before the concerned authority. In that statement, he has clearly averred that he did not deposit the amount within stipulated time and that there was delay in depositing the amount. He has then tried to suggest that his mother was ill and that he was under mental pressure and that is why he could not deposit the amount. No medical evidence is on record and hence such explanation really appears to be false and afterthought and cannot be countenanced under any pretext. 17. Coming back to the scope of the Circular, I think that the said Circular can not govern the cases of misappropriation of large amounts and the cases of well designed misappropriations. No medical evidence is on record and hence such explanation really appears to be false and afterthought and cannot be countenanced under any pretext. 17. Coming back to the scope of the Circular, I think that the said Circular can not govern the cases of misappropriation of large amounts and the cases of well designed misappropriations. I, therefore, see no merit in this application and pass the following order. 18. The Criminal Application is dismissed. Application dismissed. -----