IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4381 of 2007 RAM PRASAD JHA 'RAMAN', SON OF LATE KAPILESHWAR JHA, RESIDENT OF VILLAGE AND P.O. GONOUN, P.S. GHANSHYAMPUR, DISTRICT DARBHANGA, AT PRESENT WORKING AS AN ASSISTANT, IN THE OFFICE OF THE DISTRICT GENERAL SECTION, COLLECTRIATE, DARBHANGA. Versus 1. THE STATE OF BIHAR, THROUGH ITS CHIEF SECRETARY, BIHAR, PATNA. 2. THE SECRETARY CUM COMMISSIOINER, RELIEF AND REHABILITATION DEPARTMENT, BIHAR, PATNA. 3. THE COLLECTOR CUM DISTRICT OFFICER, DARBHANGA. 4. THE SUB DIVISIONAL OFFICER, BIROUL, SUB-DIVISION, DARBHANGA. 5. THE BLOCK DEVELOPMENT OFFICER, KIRATPUR BLOCK, DARBHANGA. 6. THE DISTRICT WELFARE OFFICER, DARBHANGA CUM DEPARTMENTAL ENQUIRY OFFICER, DARBHANGA. 7. THE DISTRICT CERTIFICATE OFFICER, DARBHANGA. ---------------------------------- 02. 30.09.2011 None appears for the petitioner. Heard counsel for the State. 2. Petitioner at the relevant time served as Nazir of Kiratpur block in Biroul Sub-division of Darbhanga district. He is found to have misappropriated a sum of Rs.2,26,068-67/- under audit report No.97/2004-05. He has filed this writ petition for quashing Certificate Case No.15 of 2002-03, Annexure-10 as also for quashing Memo No.636 dated 31.03.2003, Annexure-7 whereunder proceeding has been initiated against the petitioner for recovery of a sum of Rs.40,760/-. Further prayer has been made in the writ petition to quash audit report No.97/2004-05 dated 13.5.2005 submitted in connection with Kiratpur 2 block for the years 1997-98 till 2002-03 in which petitioner has been found to have misappropriated a sum of Rs.2,26,068-67/- and direction has been made under letter nos. 5(MU) dated 31.08.2005 Annexure- 14, 219 dated 26.04.2006 Annexure-17 and Memo No.1785 dated 15.09.2006, Annexure-19 for recovery of the aforesaid amount which the petitioner deposited under receipt no.514405 dated 5.9.2006. 3. A counter affidavit on behalf of respondent nos.3 to 7 has been filed in the matter duly affirmed by the Executive Magistrate, Sadar Sub- Division, Darbhanga cum Incharge Deputy Collector, District Legal Cell, Darbhanga. From the said counter affidavit it, however, does not appear that any finding either in a departmental or judicial proceeding has been recorded against the petitioner that he has misappropriated the amount of Rs.40,760/-, 2,26,068- 67/-, as such, until any finding is recorded that petitioner has misappropriated the aforesaid amount, such amount could not be recovered from him. Petitioner in compliance of the directions of the superior authorities to deposit part of the said amount has deposited the said amount under Nazir Receipt 3 No.514405 dated 5.9.2006. 4. As the deposit has already been made by the petitioner such deposit shall remain with the authorities and if petitioner is exonerated of the charge of defalcation of the aforesaid amount the amount shall be refunded to the petitioner with interest @ 18 % per annum. So far validity of the certificate case No.15 of 2002-03, Annexure-10 is concerned, it is observed that petitioner may file objection in the said certificate proceeding that the same should not proceed until a finding is recorded against him either in departmental or judicial proceeding that he has misappropriated a sum of Rs.40,760/-, the said amount cannot be recovered from him. It may be observed here that audit report only contain statement of facts but the facts stated therein are required to be proved either in a departmental or judicial proceeding initiated against the person against whom facts have been stated in the report with reference to materials. In the instant case, ledger etc. 5. Application stands disposed of. Rajesh/ ( V. N. Sinha, J.)