crpil 40-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL PUBLIC INTEREST LITIGATION NO. 40 OF 2011 Ramdas Narayan Nevase .. Petitioner Vs State of Maharashtra & Ors .. Respondents Mr. Rahul Kadam for the Petitioner Mr. M.R. Tidke, APP for the State Mr. U.P. Warunjikar for Respondent Nos. 3 and 4 CORAM : S.A. BOBDE & SMT. V.K. TAHILRAMANI, JJ Reserved on : 16th NOVEMBER, 2011. Pronounced on : 28th NOVEMBER, 2011. P.C.: [ Per Smt. V.K. Tahilramani, J. ] 1. Heard Mr. Kadam, learned counsel for the petitioner, learned APP for Respondent Nos. 1, 2 and 5 and Mr. Warunjikar for respondent nos. 3 and 4. None appears for respondent nos. 6 and 7. 2. The petitioner has filed this petition praying that direction be given to the State Authorities to register criminal offence against respondent nos. 6 and 7 who are Sarpanch and Upsarpanch of Village Padegaon as they have misappropriated 1 crpil 40-11.doc part of the money which was allocated for Bharat Nirman Pani Purawatha Yojna of Village Padegaon. 3. Mr. Kadam, the learned counsel for the petitioner has submitted that the documents received by the petitioner under the Right to Information Act, prima facie indicate that respondent nos. 6 and 7 could have misappropriated part of the money which was allocated to Bharat Nirman Pani Purawatha Yojna. He further submitted that this fact is also prima facie supported by the fact that misappropriated amount has been paid by respondent nos. 6 and 7. Learned counsel for the petitioner submitted that even if respondent nos. 6 and 7 have paid back the money along with interest, this fact would not absolve them of their criminal liability. 4. Mr. Kadam has submitted that even temporary misappropriation is an offence. In support thereof, he placed reliance on the decision of the Supreme Court in Shabbir Ahmed Sherkhan Vs State of Maharashtra reported in (2009) 5 Supreme Court Cases 22, wherein it is observed that even temporary misappropriation amounts to a criminal offence under Section 406 of I.P.C. As far as this contention is concerned, there cannot be any controversy on the point that temporary misappropriation would also amount to an offence. Mr. Kadam further submitted that once the crime has taken 2 crpil 40-11.doc place, the person who commits the offence is required to be prosecuted. 5. According to the petitioner, he sent a complaint to the Lonand Police Station regarding misappropriation of funds on 13th May, 2010. The grievance of the petitioner is that however, no action has been taken by the concerned Police Station pursuant to his complaint. Thus, the prayer of the petitioner is that direction may be given to the respondent State Authorities to register criminal offence against respondent nos. 6 and 7 and other persons involved in the offence of misappropriation of funds allocated for Bharat Nirman Pani Purawatha Yojna of Village Padegaon. His further prayer is that action may be taken against erring police officials who did not register the FIR . 6. The Supreme Court in the case of Aleque Padamsee and Ors Vs. Union of India reported in (2007) 6 SCC 171, has held that if information is given to the police regarding commission of cognizable offence and no action is taken by the police, then proper remedy is to file a complaint before the concerned Magistrate. The Hon'ble Supreme Court has specifically observed that in such a case, a Writ Petition is not to be entertained as there is a remedy available of filing a complaint before the Magistrate. The Supreme Court disposed of the Writ Petition with the following direction: 3 crpil 40-11.doc "If any person is aggrieved by the inaction of the police officials in registering the FIR, the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed." In view of the decision of the Supreme Court, it would be open to the petitioner to file complaint before the concerned Magistrate. As far as the second prayer of the petitioner is concerned, after a private complaint is filed by the petitioner, the petitioner may file separate proceedings if so advised in relation to the said prayer. 7. Writ Petition is disposed of in above terms. [ SMT. V.K. TAHILRAMANI, J ] [ S.A. BOBDE, J ] 4