IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16051 of 2007 1. Birendra Chaudhary son of Late-Triveni Chaudhary, resident of village- Hasauli, P.S.-Kusheswar Asthan, in the district of Darbhanga. 2. Omshankar Jha, son of Jata Shankar Khan, resident of village- Bangaaon P.S.-Bangaon in the district of Saharsa. …….Petitioners. Versus 1. State Of Bihar 2. Ram Suresh Roy, son of Brij Bihari Roy, resident of Chakia, P.S.- Boriganj, District-Saran, presently posted as Constable, Account Section, Bihar, Police, P.S.-Sachivalaya, District-Patna. …….Opposite Parties. ----------- 07. 04.05.2009 Heard learned counsel for the petitioners, learned counsel for the informant and learned A.P.P. for the State. Petitioners seek quashing of the order dated 23.02.2007 passed by the Judicial Magistrate, Ist Class in Gardanibag P.S. Case No. 287 of 2003 wherein and whereunder an application filed on behalf of the petitioners under Section 239 of the Cr. P.C. has been rejected by the Court Below. Litigation in question has a long history that started sometime in the year 1991-95. Petitioners were said to be Office bearers at least for some period of the time span. On an audit, many instances of financial irregularities came to be noticed against the petitioners. The Audit report crystallizes the objections. Since prima facie materials had emerged 2 about misuse and defalcation of the amounts, the present case came to be filed as a way of complaint which on the order of the Chief Judicial Magistrate was sent for enquiry and the same came to be registered as an F.I.R. Learned counsel for the petitioners submits that these are all matters of accounting. In addition to that there is an award pending for adjudication which will decide the liability or the culpability of these two petitioners with regard to the so called misuse of money of the Society and these are matters which can not be decided or adjudicated upon in a trial. Learned counsel representing Opposite parties submits that recovery or proceeding for recovery of the amount under the Co-operative Act is another aspect of the matter. Since materials have emerged and the Audit certifies that it is a case where criminal liability also emerges, the mere surcharge proceeding for recovery may not come in the way of the Criminal Court to decide the issue. The Court has gone through the records and is not satisfied after reading the impugned order that petitioners can be discharged from their liabilities. There are issues which require to be looked into and the same can only emerge after proper trial in the case. 3 With these observations and directions the quashing petition is dismissed. Shageer (Ajay Kumar Tripathi, J)