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2011 DIGILAW 2158 (RAJ)

Chhattargarh Kriya Vikraya Sahkari Samiti Ltd. Chhatargarh, Bikaner v. Kailash Chand Sangar

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - The aforesaid miscellaneous petition has been filed by one Ramdhan Yadav claiming himself to be the Manager of Chhattargarh Kriya Vikraya Sahkari Samiti, Chhattargarh, Bikaner (for short, "the Samiti"). The allegations, as set-up in the petition, are that respondent No. 1 Kailash Chand Sangar, by making forged entries in the cash book of the Samiti, made defalcation of a large sum of money and thus committed the offences under Sections 420, 467, 468, 471, 120-B and 409 I.P.C. 2. A complaint with the aforesaid allegations was filed by the petitioner in the Court of the Additional Chief Judicial Magistrate No. 2, Bikaner and the same was forwarded for investigation to the police under Section 156(3) Cr.P.C. Under the directions of the Court below, an F.I.R. No. 182/2000 was registered at the Police Station, Chhattargarh, District Bikaner and the investigation commenced. The police investigated the matter thoroughly and came to the conclusion that no prima facie case was made out against the respondent No. 1 Kailash Chand Sangar and the defalcation as well as the forged entry as alleged in the complaint were not found to have been committed. 3. The learned Magistrate issued notice to the complainant-petitioner but he did not appear before the Magistrate and accordingly the learned Magistrate agreeing with the findings of the police for arriving at a conclusion that no case was made out, proceeded to accept the final report by order dated 1.4.2005. Being aggrieved of the order accepting the final report, the petitioner filed a revision petition and the revisional Court too has refused to interfere in the order of the trial Court accepting the final report. The petitioner, who is the complainant in the matter, has approached this Court for setting aside the order of the learned Magistrate accepting the final report and seeking a direction directing to initiate a proceeding against the respondent No. 2 for the offences as alleged above. 4. Assailing the impugned orders, the learned counsel for the petitioner submits that the impugned orders are per se. 5. Illegal and an abuse of process of the Court; the material collected by the police was sufficient for the purpose of proceeding against the accused; there was an embezzlement committed by the accused by making interpolations in the record of the Samiti and thus, prima facie the ingredients of the offences were made out. 5. Illegal and an abuse of process of the Court; the material collected by the police was sufficient for the purpose of proceeding against the accused; there was an embezzlement committed by the accused by making interpolations in the record of the Samiti and thus, prima facie the ingredients of the offences were made out. He further submitted that the Audit Report clearly disclosed the it the respondent had committed embezzlement of a sum of Rs. 15,644/- and, there ore, the final report filed by the police was not worthy of acceptance. It has been submitted that the police has given the final report merely because of the facie that the proceedings under Section 72 of the Rajasthan Co-operative Societies Act was pending against the respondent, that by itself could not be a ground for not proceeding on the allegations which, as per the counsel for the petitioner, ex facie disclosed commission of offences by the respondent Kailash Chandra Sangar. 6. Per contra, Mr. Rajesh Joshi, counsel for the respondent, has submitted that in this case the finding of the police was that the owner of Maheshwari Brothers Enterprises did not corroborate the factum of deposit of money to tie time of Rs. 15,644/- and as such when the money was not given by the 2 person to the petitioner then there was no question of entry thereof being nude in the accounts of the Samiti. It has further been submitted that in the inquiry report under Section 72 of the Rajasthan Co-operative Societies Act, the respondent has not been found to be liable to make payment of Rs. 15,644/- and instead, the party, i.e. Maheshwari Brothers Enterprises has been found to be in dues of the aforesaid amount. 7. I have considered the arguments advanced at the Bar. Carefully perused the impugned orders as well as the final report and the corresponding record collected by the police in the matter. 8. 15,644/- and instead, the party, i.e. Maheshwari Brothers Enterprises has been found to be in dues of the aforesaid amount. 7. I have considered the arguments advanced at the Bar. Carefully perused the impugned orders as well as the final report and the corresponding record collected by the police in the matter. 8. In the opinion of this Court, there is ample evidence and material on record by way of the detailed final report of the police supported by evidence, as per which the respondent was found not to have committed the embezzlement which was alleged in the F.I.R. The finding of the police has found favour with the two Courts below, as such the petition filed by the petitioner, after having availed the remedy of revision and having failed in the same, cannot be entertained. Once the finding of police regarding respondent not having committed the offence of defalcation/embezzlement, was accepted by the learned Magistrate on the basis of positive material available on record of the investigation file and the same finding has also been accepted by the revisional Court, the power under Section 482 Cr.P.C. cannot be exercised for directing the prosecution of the respondent and that too when the allegations I, on the basis of which the prosecution was sought to be initiated, have been found to be unsubstantiated. The powers under Section 482 Cr.P.C. are to be exercised sparingly and in exceptional circumstances. When two Courts below have given concurrent findings based on the appreciation of facts, normally this Court would be loath to interfere in such findings of facts in exercise of powers under Section 482 Cr.P.C. No case of abuse of process of Court has been committed by the Courts below in concurring with the opinion of the Investigation Agency in the detailed final report. 9. Accordingly, the miscellaneous petition, being bereft of force, is hereby dismissed. The stay petition also stands. dismissed. Record of the trial Court be sent back forthwith.Petition dismissed. *******