IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12245 of 2011 Gunakar Mishra Versus The State Of Bihar ----------- 2/ 19/10/2011 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner happens to be one of the accused of Raghopur P.S. case No. 50/2010 registered under Section 409 of the IPC, has prayed for quashing of the criminal prosecution. Block Education Officer of Pratapganj, Supaul filed a written report alleging inter alia that Sri Ankaj Kumar Singh had misappropriated Rs.1,54,531/- in a capacity of Headmaster of Primary School, Babu Asthan while petitioner, Gunakar Mishra had misappropriated Rs. 6,55,259/- as they have failed to furnish bills against the aforesaid withdrawal. Simple submission raised on behalf of the petitioner happens to be that petitioner cannot be held responsible for lapses whatever is visualizing in light of “Bihar Rajya Siksha Samity Adhiniam, 2000” whereunder the Siksha Samiti has been vested with power to make proper expenditure for upliftment of the school. Further referring its rule-12, it has been submitted that Headmaster happens to be simply custodian in whose name account stands and further, as per direction of 2 Contd. 19.10.2011 Shiksha Samiti through the resolution, the Headmaster is expected to issue cheque only. Therefore non submission of bills against the amount whatever been withdrawn lies upon Siksha Samiti and not upon the petitioner, as a Headmaster, and so the prosecution since its inception smells mala fide, arbitrariness. Not only this, it has further been submitted that none of the members of Shiksha Samiti has been added as an accused therefore instant criminal prosecution, if allowed to proceed will serve no purpose and so in the interest of justice is fit to be quashed. On the other hand, learned APP opposes and submitted that it is the investigation whereunder it would be traceable whether the petitioner is responsible for misdeeds or not. Also submitted that the investigation appears to be at primary stage and so it should not be quashed. How the matter of criminal breach of trust is to be taken up, for that I would like to refer 2006 Cr.L.J. 1258 wherein at para-17 it has been held:- “ In a case under Section 406 the question of trust must be fully inquired into. For this purpose it is essential that the whole prosecution evidence should be recorded. It is impossible to guess at an interim stage, what will be the result of the inquiry. Consequently, when only a few of the prosecution witnesses have been examined, it is too premature to decline to examine any more witnesses for the prosecution and discharge the accused on the ground that the case is of civil nature” 3 Contd. 19.10.2011 That means to say the entrustment has to be fully established and under that event of entrustment getting it used for own benefit against the wish is another ingredient to attract the provision. At this juncture Sub- Clause-4 of Rule-12 cannot be ignored which reads as:- “Khata ka prachalan Pradhan Adhyapak/Pradhan Shikchak Evam Sachiv dwara sanyukta roop se kiya jayega”. There is no pleading nay the learned counsel for the petitioner argued that the bank account was opened in joint name of Headmaster(petitioner) along with Secretary of the School and it was jointly operated upon. Therefore, mala fide intention is visualizing at a first glance. The detailed discussion is forbidden as it will certainly jeopardize the interest of the petitioner. In the aforesaid background, I do not any see merit in this case, hence it is accordingly, rejected. perwez (Aditya Kumar Trivedi,J.) 4