IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56569 of 2006 Shambhu Nath Keshri, Son of Late Vishwanath Kishari, resident Of Village-Itarahi, P.O. Itarahi, P.S. Itarahi, District-Buxar, presently Senior Audit Officer, Office of District Audit Officer, Co-operative Society , Chaibasa,District-West Singhbhum in the State of Jharkhand ------------------ Petitioner Versus 1. THE STATE OF BIHAR 2. Rozi Alam Ansari S/O Late A.Karim Ansari, Manager, Agriculture Co-operative Society, Laxmipur, Packs, P.S. Raxaul, District- East Champaran ( Motihari), resident of Village- Sripur Bhawwalia, P.S.Sugauli, District- East Champaran ----- Opp.Parties. ----------- For the petitioner :M/S Siyaram Sahi, and Umesh Kumar Singh For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None ------------ O R D E R The sole accused of Complaint Case no.2122 of 2005 has prayed for the quashing of the order dated 14.9.2006 passed therein by the learned Sub Divisional Judicial Magistrate, West Champaran at Motihari , whereby he has taken cognizance against the petitioner of offence under Section 420 I.P.C. and had summoned him accordingly. The complainant Rozi Alam Ansarai, impleaded herein as Opp.Party no.2 filed the aforesaid complaint inter alia alleging commission of offences under Sections 420, 468, 409, 389, 201 I.P.C. at the hands of the sole accused in between 1999 to 31.3.2004 and from 15.9.2004 to the filing of the complaint. It is said that the complainant is the Manager of Primary Agriculture Co-operative Society, Laxmipur Pax and of Phulwariya Pax falling within Sugauli Police Station. The allegation against the sole accused is that he was - 2 - irregular in his duty as an auditor and used to hold the audit irregularly at interval of 2-3 years. It is further alleged that in 1999 having completed audit work the accused demanded Rs.40,000/- from the complainant and in the event the same was paid, he would manoeuvre the record to show that no dues of the society was outstanding and when the complainant refused to oblige as all registers had been properly filled in with all details, the accused allegedly took away all documents and registers of the society in respect of loans given out and recovery made and submitted a false report showing Rs.51118/- as remaining in the hands of the society. The said report having been sent to the Managing Director of Motihari Co-operative Bank , the complainant was removed from service, the function of the Co-operative Society was closed and an enquiry was ordered to be conducted by Saryug Bhagat, Block Co- operative Officer. The said enquiry disclosed that a sum of Rs.16445.75 was in the account of the Society, and as such, the removal order of the complainant was revoked and the functioning of the Co-operative Society was resumed. Then again, it is alleged that the same auditor audited the accounts of Phulwariya Branch of the Society and demanded Rs.40,000/- to submit a report in favour of the complainant and when he refused to oblige as all the entries made in the register were correct , he again went away with all documents and registers and submitted a receipt and also got the complainant to sign on a blank paper on the understanding that the same was to be handed back, once the register and document taken - 3 - away by the auditor was returned to the society. Thereafter, the said auditor became traceless and it was learnt that he was transferred to Jharkhand without submitting the audit report or returning the registers. It is further alleged that on 15.9.2005 the complainant came to know that a report had been submitted on 31.3.2004 which indicated that a sum of Rs.176526.66 was shown in the accounts of the Society which had not been deposited in the account of the Co- erative Society. On enquiry, the complainant learnt that neither the registers nor the blank paper bearing his signature had been returned by the Audit Officer. It appears that after holding due enquiry under Section 202 Cr.P.C. the learned Magistrate found a prima facie case only under Section 420 I.P.C. to have been made out against the petitioner and accordingly summoned him. In assailing the impugned order of the learned Magistrate, it has been submitted by the learned counsel for the petitioner that he has been implicated falsely due to grudge, brooked by the complainant as the allegations levelled in the complaint petition were false and fabricated. In this context, it was submitted in between period 1999 to 2004. the petitioner had been allotted work of auditing the accounts of the Society of three Blocks and in pursuance thereof audit had been done on the basis of the records available and the last balance accounts. The reason for submission of delayed audit report has been attributed to the non-availability of records and non-production of last balance account by the Chairman. Reliance has been placed on letter - 4 - dated 27.9.2003 issued by the Registrar, Co-operative Society, Bihar, wherein directions/suggestions had been given for making the records available for auditing . A copy of the said letter has been appended with the application as Annexure-2. It was further submitted that the audit work for the period 1997 to 1999 was done between the period 7.3.2005 and 12.3.2006 and the demand of Rs.40, 000/- as illegal gratification has been denied as being false and absurd. It has further been submitted that the audit report had been prepared on the basis of the materials placed before him and he had no hand in engineering false accounts. It was apparent that the complainant had not deposited the amount in Central Co-operative Bank, Raxaul and retained the amount himself violating the provisions of paragraph-35 of the laws of the Society. It was further submitted that the audit report submitted by him was never challenged before any competent authority i.e. the District Audit Officer or Registrar of the Co-operative Society nor had it been re-audited by any expert. The allegation of documents and registers not being returned has also been denied as the same had been handed over to the Manager, Central Co-operative Bank, Raxaul and receipt thereof was obtained. It is also submitted that although the petitioner had been transferred to Jharkhand after bifurcation of the State of Bihar but was given permission to complete the auditing work and was eventually relieved on 16.5.2005 under orders of the District Audit Officer, Motihari contained in letter dated 16.5.2005 . The further submission on behalf of petitioner is that he has clean service record and has without any demeanor discharged his official - 5 - duty and instead of being appreciated he faces prosecution at the hands of the complainant on false and frivolous allegations attributed to him only with the ulterior motive of saving his own skin. It has been asserted that it was the complainant who had misappropriated funds of the Co-operative Society and thrown the blame on him. The complainant-opp.party no.2 was duly noticed to appear and show cause and in pursuance thereof he appeared through Vakalatnama. However, at the hearing of the case at the admission stage, the complainant-Opp.Party no.2 as also his learned counsel were conspicuous by their absent. The show cause also has not been filed. As such, the submissions advanced by the learned counsel for the petitioner remains unrebutted. Even otherwise, the entire allegations made in the complaint petition which were sought to be buttressed by evidence of complainant’s witnesses at the enquiry under Section 202 Cr.P.C. relates to accounting pursuant to audit work purported to have been done by the petitioner and of outstanding balance remaining in the hands of the complainant, which had not been deposited in the Central Co-operative Bank, Raxaul . Obviously, the same appears to be an exercise which could not invite criminal liability of the petitioner and the alleged demand made by the petitioner to fabricate and maneuver accounts does not satisfy the ingredients of the offence of Section 420 I.P.C. Admittedly, there is no question of cheating on the part of the petitioner and there has been neither any delivery nor any destruction of any property or alteration or destruction of valuable security - 6 - resulting from the acts of the sole accused which compelled the complainant to part with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outside. In this connection, reference may be made for the gainful purpose of decision; A. Jayram Vrs. State of Andhra Pradesh reported in (1995) Suppl.3 SCC 333. Having given my anxious thought to the materials available on the record and submissions advanced by the learned counsel for the petitioner I am of the opinion that the prosecution of the petitioner in the face of the allegation made against him is an abuse of the process of the court which is neither warranted nor is tenable in law. Accordingly, the impugned order taking cognizance is hereby quashed and the application is allowed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 15th May,2009 Nawal Kishore Singh/ A.F.R.