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2015 DIGILAW 571 (GUJ)

Haresh A. Patel v. State of Gujarat

2015-05-08

R.D.KOTHARI

body2015
Judgment R.D. Kothari, J. 1. The question, namely, what is cheating and breach of trust that is raised most often in the Courts, is once again raised in the present case. In a sense, context in the present case is somewhat novel as the question herein raised by the petitioner who at the relevant time was an auditor and was asked to carry out audit of the account of respondent No. 2 - co-operative society. The petitioner is one of the accused in criminal complaint lodged before Kevadiya Colony Police Station. Liability of auditor in the facts of the case, is in issue. 2. The relevant facts may be referred to; 2.1 The complainant is, "Senapati" in respondent No. 2 - society. It is registered co-operative society. It is alleged that duty of 'Senapati' is akin to a welfare officer. The said cooperative society is known as "The Police Karmachari Employees' Credit Society - SRP Group14, Kevadiya Colony." There are five different co-operative societies of this SRP Group. They are known as; A, B, C, D and Head Quarters Company Society. The period in question herein is 1.4.2008 to 31.3.2009. The petitioner was appointed as an auditor by the Registrar. The petitioner has carried out the audit for the year in question also. The audit report for the said period is at Annexure-D. The complaint is filed against three. Principal accused in the opinion of complainant is one Bhavarsinh. He was cashier at the relevant time. The other accused is one Guravnan, who was honorary Secretary at the relevant time and was also holding charge of additional Senapati for some time. The third accused is the present petitioner. The grievance of the complainant is, one Bhavarsinh, who, at the relevant time, was cashier in the cooperative society, has siphoned off Rs. 6,34,238/- from the account of respondent No. 2 - cooperative society and said Bhavarsinh has pocketed the said amount. That accused Guravnan has aided and abetted some of the deeds of Bhavarsinh. It is the say of the complainant that petitioner has failed to report in his audit report about malpractice committed by the cashier Bhavarsinh and thereby, he too has committed the offence of cheating and breach of trust. The complaint is fairly exhaustive. In order to appreciate properly the case of the parties, specific instances given by the complainant qua misappropriation may be mentioned. The complaint is fairly exhaustive. In order to appreciate properly the case of the parties, specific instances given by the complainant qua misappropriation may be mentioned. One of the modes alleged to have resorted is, via different entries, the amount of the society was transferred to the provision store. Said transfer is on the ground that provision store is in need of the amount. Instances of irregularity via this mode are as under: Sr. No. Mode Entry No. Amount Nature of irregularity 1 Transferring the amount to the provision store 267 1,00,000/- Through this amount is credited in day book of Provision Store, however, this amount is not mentioned in the opening stock of relevant date i.e. 12.1.2009. 2 ” 268 ” By not crediting the said amount in day book of the provision store. 3 ” 274 ” ” 4 ” 288 ” ” 5 ” 289 ” ” 6 ” 298 90,000/- ” 2.2 The main grievance of complainant is, making of irregular entries in the above-referred manner or, rather failure to make entries as stated in above table. The other grievance is, in the day book of cooperative society, entry of Rs. 22,737/- is made to the effect that said amount is deposited in bank account of the society. While, in fact, said amount is not deposited in the bank and only paper entry is made. It is alleged that cashier has committed misappropriation by that mode. Similarly, on verifying the day book of the society on 8.4.2009, it would appear that the voucher is of Rs. 2,20,000/-, while entry in the bank's pass-book shows that Rs. 2,00,000/-only deposited in the bank. Thus, by making false entry and making interpolation in the day book of the society, Rs. 20,000/- was misappropriated. The last instance of misappropriation is, thus; In one of the societies, one Bharwad had an account, viz., Account No. 29. He had taken loan twice. First is on 11.4.2008 of Rs. 5000/- and second loan was on 25.10.2008 of Rs. 10,000/-. From the second loan taken by him, he had cleared and had paid up the first loan and what had remained thereafter with Mr. Bharwad is - claims complainant - Rs. 1500/-. Presumably, first loan of Rs. 5000/- was paid with interest on it. It is the say of Mr. Bharwad - says complainant - that he had handed over the cash of Rs. Bharwad is - claims complainant - Rs. 1500/-. Presumably, first loan of Rs. 5000/- was paid with interest on it. It is the say of Mr. Bharwad - says complainant - that he had handed over the cash of Rs. 1500/- to the cashier Mr. Bhavarsinh, however, said cashier had not given any receipt for the same and that is how, cashier had misappropriated Rs. 15,00/-. The complainant also alleges that concerned P.I. had also examined the day book of the society from 13.3.2009 to 23.3.2009 and had found that incorrect entry of Rs. 90,000/- had been made in the day book of the society and thereby, Bhavarsinh had made misappropriation. 2.3 Accused - Bhavarsinh, in an inquiry carried out by society prior to lodging of the complaint, while admitting the guilt, had said that by mistake, entry was not made or it is made incorrectly. It is also the say of the complainant that pursuant to the admission of guilt by him, he has deposited Rs. 1 lac in the society on 7.1.2009. The complainant claims that Rs. 5,01,500/- was misappropriated by cashier Bhavarsinh and that Guravnan has aided and abetted cashier Bhavarsinh. In other words, it is alleged that they have acted in collusion and had committed misappropriation. Secondly, during the period from 23.3.2009 to 22.5.2009, by making false entries in the day book of the society and in other day books of the society, Bhavarsinh has misappropriated Rs. 32,738/-. Thus, claim of complainant is Bhavarsinh and Guravnan have misappropriated Rs. 6,34,238/-. 3. Heard learned advocates appearing on behalf of the respective parties. Learned advocate Mr. Dhval D. Vyas for the petitioner, after briefly referring the facts of the case, has drawn attention to relevant material on record. Learned advocate has submitted that there is not even prima facie case so far as present petitioner is concerned. Mr. Vyas has drawn attention to audit report submitted by petitioner and correspondence exchanged between the complainant and the present petitioner (Annexure-F) prior to lodging of the complaint. Relying on the said correspondence, it was submitted that continuation of criminal proceedings against the present petitioner is abuse of process of law. Learned advocate has also drawn attention to relevant case laws on the point. 4. Complainant, though served, has remained absent. 5. Relying on the said correspondence, it was submitted that continuation of criminal proceedings against the present petitioner is abuse of process of law. Learned advocate has also drawn attention to relevant case laws on the point. 4. Complainant, though served, has remained absent. 5. Learned APP at the time of hearing has mainly placed reliance on the contents of the detailed complaint and has pointed out that allegations are made by setting out the grievance in detail and such factual assertion, in the circumstances of the case, should be left to the trial court for adjudication. 6. In essence and substance, the say of the complainant is, petitioner has shown negligence in discharge of his duties. The sole petitioner before this Court at the relevant time was working as an Auditor. The question of deviation from duty by the petitioner may be considered by applying the test of 'reasonable man' and secondly, by asking the question, namely, what in general is expected from the auditor. Taking second aspect first, brief reference may be made to the recent English case law on the point. 6.1 In Galoo Limited's case - 1995 (1) All ER 15, plaintiff had purchased substantial shares from second plaintiff i.e. Limited Company. Second plaintiff owned all the shares of 3rd plaintiff. As it turned out that second and third plaintiffs were insolvent, plaintiff initiated action in tort against the auditor alleging that there was substantial inaccuracy in auditing the account and auditors were failed to discover and report the inaccuracy. Claim was substantially dismissed. It was held that occurrence of loss to the plaintiff is not possible to co-relate with the transaction in question, hence, no cause of action against the auditor. It also held that the fact that the potential bidder or lender might rely on the audited account of the company that by itself is not sufficient to impose duty of care owed by the auditor towards bidder or lender. Recently, in Mehjoo's case - 2014 (4) All ER 806, claimant was holding Iranian domicile. He studied at U.K. and was staying in U.K. Dispute arose as running business in which the claimant had substantial share, was sold. Main grievance of claimant was, Chartered Accountant failed to give advise to the claimant to avail a scheme, namely, Bearer warrant scheme, by which the claimant could have avoided capital gain tax. He studied at U.K. and was staying in U.K. Dispute arose as running business in which the claimant had substantial share, was sold. Main grievance of claimant was, Chartered Accountant failed to give advise to the claimant to avail a scheme, namely, Bearer warrant scheme, by which the claimant could have avoided capital gain tax. One of the Judges in separate and concurrent order relying on 1978 (3) All ER 571 (583) has held, thus; "There is no such thing as a general retainer in that sense. The expression "my solicitor" is as meaningless as the expression "my tailor" or "my bookmaker" in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends on the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do. Now no doubt the duties owed by a solicitor to this client are high, in the sense that he holds himself out as practicing a highly skilled and exacting profession, but I think that the court must beware of imposing on solicitors, or on professional men in other spheres, duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interests, take it on himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the rest. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases such as Duchess of Argyll v. Beuselinck [(1972) 2 Lloyd's Rep 172], Griffiths v. Evans [(1953) 2 All ER 1364, [1953 1 WLR 1424] and Hall v. Meyrick [[1957] 2 All ER 722, [1957] 2 QB 455 demonstrate that the duty is directly related to the confines of the retainer." 6.2 It is interesting to make quick reference to early cases on the point. In Re Kingston Cotton Mill Co.'s case - (1896) 2 Ch 279, it was held that auditor has to work as watchdog and not as a "bloodhound". In later case i.e. Re City Equitable Fire Insurance Co. In Re Kingston Cotton Mill Co.'s case - (1896) 2 Ch 279, it was held that auditor has to work as watchdog and not as a "bloodhound". In later case i.e. Re City Equitable Fire Insurance Co. Ltd.'s case - (1925) 1 Ch 407, 'watchdog' principle was reiterated, however, in that case it was found that auditor was not negligent in discharge of his duty. Then, in Formento (Sterling Area) Limited' case 1958 (1) All ER at Page-23, test of 'inquiring mind' in examining the conduct of auditor was introduced. This test of 'inquiring mind' was reiterated in Re Thomas Gerrard & Son Ltd.'s case - 1967 (2) All ER 525. 7. Having taken note of English Law on professional negligence, now reference may be made to test of 'reasonable man'. 7.1 In Mahadev Prasad Kaushik's case - (2008) 14 SCC 479, it was held in Para.26 as under : "26. Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do." 7.2 Similarly, M.S. Grewal's case - (2001) 8 SCC 151 is relevant and important. It was the case under Fatal Accident Act. The school management had organized a picnic at the river bank. On account of rash and negligent act of the teachers, 14 students were drowned in the river as students were allowed to play in the danger zone of the water. It was found that caution and warning was not given. It was held in Para.14 as under : "14. Negligence in common parlance mean and imply 'failure to exercise due care, expected of a reasonable prudent person'. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by with the negligent party is unaware of the results which may follow from his act. negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word 'inadvertence' stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions - whereas inadvertence is a milder form of negligence, 'negligence' by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk and Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below : "(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable; (2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law; (3) a casual connection between the defendant's careless conduct and the damage; (4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote." 8. Now, case of petitioner may be considered applying the above principle. Before that, two aspects may be borne in mind; one, there is no specific statutory provision in the Act laying down the 'duties of the auditor' and secondly, proceedings are at nascent stage and I have no benefit of evidence on record, therefore, embarking on detailed discussion on duties of auditor etc., would not be fair and proper. 9. In the present case, audit report is at Annexure-D. The report is in detail. It is in printed form wherein against each of the printed column in the form, there is a brief hand written comment offered by the auditor/petitioner. Beside that, at the end of the report, auditor has also offered comment under the heading of 'suggestions and deficiencies'. In the present case, audit report is at Annexure-D. The report is in detail. It is in printed form wherein against each of the printed column in the form, there is a brief hand written comment offered by the auditor/petitioner. Beside that, at the end of the report, auditor has also offered comment under the heading of 'suggestions and deficiencies'. If we peruse the audit report, prima facie it does not appear that comment offered by the auditor is only formal in nature or that they are evasive. Further, learned advocate Shri Vyas, upon instructions from his client, submits that this printed form is supplied by office of Registrar itself. Reference may be made to the query made by the Court. The Court had made query about compliance to Section 84(2) - and precisely how verification of the cash and securities may be gathered from the report, in response to that, the learned advocate draws attention to Column Nos. 11 and 12 in the printed form, and had submitted that comments offered therein by the petitioner may be read along with the suggestion and deficiency offered by the auditor at the end of the report. In this regard, attention was drawn to Item Nos. 10 and 11. Reference to the report and to the comment are relevant. Under heading of suggestion and deficiency, the petitioner has identified 17 deficiencies and suggestions. Strong reliance was placed on Item No. 15, which reads as under:-- XXX XXX XXXX XXXX 9.1. At the time of hearing, it was also pointed out that prior to lodging of the complaint, complainant had addressed a letter on 19.1.2010 on behalf of the society. It was addressed to the petitioner. Opinion of the petitioner was sought on the deficiencies that were noticed and referred to in that letter, -the petitioner had replied the same on 15.2.2010. It is at Annexure-F. petitioner's reply is fairly exhaustive and specific. Therein, against most of the deficiencies identified and referred to in the letter, - this letter and reply are prior to lodging of the complaint - petitioner has recommended initiation of criminal proceedings against the Bhawarlal. Prima facie, the handwritten comment offered by the auditor does not appear to suffer from non-application of mind. 10. Therein, against most of the deficiencies identified and referred to in the letter, - this letter and reply are prior to lodging of the complaint - petitioner has recommended initiation of criminal proceedings against the Bhawarlal. Prima facie, the handwritten comment offered by the auditor does not appear to suffer from non-application of mind. 10. Weighing the material on record with the above-referred test laid down, can it be said that petitioner has shown no regard for his duty or can it be said that care and attention that petitioner expected to show, was not shown by him or can it be said that the petitioner has omitted to do something which reasonable man would not omit to do or the petitioner has done something that any reasonable or prudent man would not do. 11. The Court, in the present case, is called upon to consider initiation of criminal proceeding against petitioner. Grievance of complainant, in a sense, is "negligence" shown by the applicant, as referred above. I have also made a reference that allegation of negligence may be appreciated by applying the test of the reasonable man and by resorting to the other test, as stated above. It may be borne in mind that aggrieved party has option either to take civil action or to file criminal complaint. It is obvious that considerations for the Court in examining the case under civil and criminal jurisdiction would be different. In Kedarnath's case - AIR 1965 Allahabad 233, meaning of 'negligence' in tort action and in criminal action is considered. It is held as under: "'Negligence' is a term of art but has distinct meanings in different jurisdictions. In torts, damage is an essential ingredient, but that element is not necessary in the law of master and servant. In the law of crimes, there is a series of offence, based on negligence, in which loss or injury is not material. It is enough, if the act is likely to cause injury or endanger life. Sections 279, 285, 287 and 290 of the Indian Penal Code 1860 are illustrative examples. For criminal breach of trust under Section 405 Indian Penal Code 1860 dishonesty, that is, wrongful loss or gain, has to be established." 12. In oft-quoted Jacob Mathew's case - (2005) 6 SCC 1 , the Court had occasion to consider the issue of negligence. Sections 279, 285, 287 and 290 of the Indian Penal Code 1860 are illustrative examples. For criminal breach of trust under Section 405 Indian Penal Code 1860 dishonesty, that is, wrongful loss or gain, has to be established." 12. In oft-quoted Jacob Mathew's case - (2005) 6 SCC 1 , the Court had occasion to consider the issue of negligence. In that case, the Court was concerned with medical negligence. The Court, quashing the criminal complaint against the doctor, has pointed out how the concept of negligence defers in civil and criminal law. It was held (p.736); "1. xxx xxx xxx 2. xxx xxx xxx 3. xxx xxx xxx 4. xxx xxx xxx 5. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of means rea must be shown to exist. For an act of amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution...." 6. xxx xxx xxx 7. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. 8. xxx xxx xxx" [In this regard, See : Post Graduate Institute of Medical Education's case - (2009) 7 SCC 330 , Para.16] also. 13. The complainant complains about commission of breach of trust (Sections 405 and 409) and commission of cheating (Section 420). It may be noted that offences and penalties under the Co-operative Societies Act (Chapter-XII) are not in issue. The complaint is not about offence under the Societies Act. The complaint is under the IPC. Factual assertions made by the complainant are referred herein-above. First, case of breach of trust may be considered. 14. It may be noted that offences and penalties under the Co-operative Societies Act (Chapter-XII) are not in issue. The complaint is not about offence under the Societies Act. The complaint is under the IPC. Factual assertions made by the complainant are referred herein-above. First, case of breach of trust may be considered. 14. It takes place by any one of these four acts by the accused - they are - either misappropriation or conversion or user or disposal of property. In Sardar Singh's case - AIR 1977 SC 1766 , appellant at the relevant time was Patwari. He was suspended. He was directed to hand over the charge to the authority, however, he did not hand over the charge and consequently, charge was forcibly taken from him by breaking open the lock. Thereafter, a criminal case was filed against the appellant. One of the charge was, Patwari had received Rs. 26.50 ps. for issuance of certified copy. However, he had failed to give satisfactory account for that. The other charge was failure to return the receipt book. The Magistrate found that former charge is not proved. But the appellant came to be convicted for later charge as it was established that receipt book was entrusted to the appellant and when charge was forcibly taken from the appellant, receipt book was not found. Hence, the Magistrate was pleased to convict the appellant for offence of breach of trust. The Sessions Court dismissed the appeal and Revision came to be dismissed by the High Court. The Supreme Court allowing the appeal had held that; "2.... But from this it does not necessarily follow that the appellant committed criminal breach of trust in respect of the receipt-book. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust......." 14.1 It concluded, thus; "..What the section requires is something much more than mere failure or omission to return the receipt-book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under S. 409" 15. Thus, one of the facets of criminal breach of trust is entrustment of property or, that person should have domain over it. The other facet is, failure to give account of the property so entrusted or giving of an explanation that is untrue. It is not possible to relate act of petitioner with requirement of former facet. As to later facet, in this regard, reference may be made to Jaikrishnadas Manohardas Desai's case - AIR 1960 SC 889 . Head Note-A reads, thus; "(A) Penal Code (45 of 1860), S.409 - BREACH OF TRUST - Proof - Failure to account for property entrusted - Dishonest misappropriation or conversion when may be inferred. To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure, in breach of an obligation, to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily he made." (See also : Krishna Kumar's case - AIR 1959 SC 1390 ). That act is not intentional but, it was on account of accidental loss is for accused to bring on record. 15.1 Essentials, therefore, that attracts offence of breach of trust, are not possible to infer so far as case of applicant is concerned. 16. Now, about cheating. In this regard, reference may be made to a decision of the Supreme Court in case of. G.V. Rao v. L.H.V. Prasad and others, AIR 2000 SC 2474 . In Para.7, it is held; "As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complaint to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 : 1956 Cri LJ 1116 : 1956 SCR 483 a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea." on the part of that person, must be established. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea." on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of West Bengal, AIR 1954 SC 724 : 1954 Cri LJ 1806 that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. 16.1 In short, definition of 'cheating' is in two parts. Both the parts speak of inducement. In former part, inducement should be 'dishonest' and 'fraudulent' and in the later part, it should be 'intentional'. As to the inducement in the preceding paragraph in the said judgment i.e. in Para.6, it is said, '...Such inducement should have led the person deceived or induced to do or omitted to do anything which he would not have done or omitted to do, if he were was not deceived.' 16.2 No case of cheating by the applicant in the facts of the case. 17. Lastly, taking the say of the complainant as it is and if one considers irregularity in respect of Day Book, it hardly takes the case of complainant any further. The say of the complainant is that the petitioner in Audit Report has not referred or has not drawn attention of the Society that there is no corresponding entry of withdrawal of amount in the Day Book of the provision store. What is Day Book? It is defined as a tradesmen/merchants account book. In Black's Law Dictionary it is explained as "..... Book in which all the occurrence of the day are set down. It is usually a book of original entries...". It would appear from this that entry in Day Book is for limited and for transitory period. At the end of day - so as to say - entries from the Day Book is to be carried into ledger or other such permanent register. There is nothing on record and not even the allegations in the complaint that the failure to make the entry in the Day Book as alleged corresponds with or it has culminated into none making of entry in the main ledger or such other accounting book. There is nothing on record and not even the allegations in the complaint that the failure to make the entry in the Day Book as alleged corresponds with or it has culminated into none making of entry in the main ledger or such other accounting book. Further, the grievance of the complainant about the 'Day Book' is to be appreciated in the background of the fact that for the audit work, the Form of the Audit Report - Printed Form is supplied by the office of the Registrar itself and in the present case, besides filling this printed form, the applicant has also appended numerous suggestions and deficiencies at the end of the printed form. It may be stated that proceed to consider such technical and formal accounting discrepancy, in the circumstances of the case, in exercise of criminal jurisdiction may raise a question of legality and propriety. The grievance of the complainant about the Day Book is a mere technical, formal and academic. The claim that the applicant has committed breach of trust and/or cheating, as he had failed to draw attention to the above referred accounting irregularity is reduced to academic or technical grievance also because the main accused as per the say of the complainant himself in the complaint has admitted the guilt. Had it been the case that Bhanvarlal - the main accused had disown the allegations and on the other hand the Audit Report on record is such that the Auditor had routinely and mechanically - without offering the comments - had certified the account as 'O.K.,' and further still, the main accused had taken shelter to that Audit Report - then the matter would have been different - no such case herein. 17.1. At the time of hearing, the learned advocate for the applicant upon instructions has also submitted that the Registrar has not initiated any action etc., pursuant to the present complaint filed against the applicant. On the contrary, it was submitted that the present applicant was continued as Auditor for subsequent period also. 18. In view of above discussion, submission of Mr. Dhaval Vyas, learned advocate for the applicant is accepted. There is no case on record so far as present applicant is concerned. 19. Accordingly, application is allowed. On the contrary, it was submitted that the present applicant was continued as Auditor for subsequent period also. 18. In view of above discussion, submission of Mr. Dhaval Vyas, learned advocate for the applicant is accepted. There is no case on record so far as present applicant is concerned. 19. Accordingly, application is allowed. The complaint registered as C.R. No. I-9 of 2010 at Kevadia Police Station, District Narmada is hereby quashed and set aside so far as present applicant is concerned. It is hereby clarified that criminal case against the other accused may be proceeded in accordance with law. Rule is made absolute. Application Allowed.