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2013 DIGILAW 2630 (BOM)

Nitin Manikrao Gawande v. State of Maharashtra

2013-12-19

A.B.CHAUDHARI, Z.A.HAQ

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JUDGMENT A.B. CHAUDHARI, J. Rule. Rule is made returnable forthwith. Learned Addl. Public Prosecutor Mr. T.A. Mirza waives service on behalf of respondent no. 1, and learned Adv. Mr. Chetan Deshpande, for respondent no.2. 2. This is an application for quashment of First Information Report dated 27th May, 2013 in Crime No. 377/13 registered with City Police Station, Yavatmal, for offence under Section 409, Indian Penal Code, which was lodged by respondent no. 2 on behalf of Maharashtra State Seeds Corporation Ltd., Akola, Yavatmal District Office, Yavatmal, against the applicant, on the allegation of misappropriation of amount of Rs. 18,188-00 by the applicant. It is on that information, the First Information came to be registered against the applicant who is working as a Junior Clerk with the Corporation. 3. Learned counsel for the respondent no.2 vehemently opposed the application, and argued that even though the payment of said amount was made by the applicant later on, the offence of misappropriation and to be precise, of temporary misappropriation is certainly made out and, therefore, this is not a fit case for quashment of First Information Report. 4. Learned counsel for the applicant argued that there was a mistake when the applicant was handling the cash box. But then the mistake cannot be converted into an intention in order to register offence against the applicant under Section 409 of Indian Penal Code. He, therefore, submitted that it is for that reason, the applicant, realizing the mistake, paid back the money to the employer. 5. On perusal of the pleadings in the application and reading of the First Information Report and the reply, we are satisfied that the applicant had made a mistake in respect of handling the cash of Rs. 18,188/-. There is nothing to show an element of mens rea at this stage also to nail the applicant as the offender for committing the offence under Section 409 of Indian Penal Code. The case of temporary misappropriation projected by the learned counsel for the respondent no. 2 does not appeal to us, since the amount was deposited within a very short time to the Corporation, namely on 6th June, 2013 after realizing the mistake, when the amount is said to have been misappropriated on 27th May, 2013, thus, in a gap of nine days. 6. 2 does not appeal to us, since the amount was deposited within a very short time to the Corporation, namely on 6th June, 2013 after realizing the mistake, when the amount is said to have been misappropriated on 27th May, 2013, thus, in a gap of nine days. 6. In the above factual background and in the wake of the fact that no criminal antecedents have been reported against the applicant, we are of the opinion that this is a fit case to exercise power under Section 482, Criminal Procedure Code and grant relief to the applicant. Hence we make the following order: ORDER The Rule is made absolute in terms of Prayer Clauses [a] of the application, which reads thus: "[a] Quash and set aside the First Information report dated 27.05.2013 lodged by the Non-applicant No. 2 with the non-applicant no. 1 Police Station, Yavatmal City by which offences are registered against the applicant vide Crime No. 377/2013 for offence under Section 409 of the Indian Penal Code at AnnexureP-1. Application allowed.