IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.27 of 1998 1. DR. INDU DHAN W/o A.K. Dhan, Station Road, Ranchi, District- Ranchi. 2. Dr. R.K.Mahto, son of Shri Ram Pratap Mahto, Resident of Mohalla-Patel Nagar, P.O. & P.S.- Shashtri Nagar, Patna. 3. Dr. B.N. Pandey s/o Shri Jagat Narayan Pandey, resident of A/6 Magadh University Campus, P.O. and P.S.- Magadh University, Bodh Gaya. 4. Dr. A.K. Shrivastava son of Dr. R.S. shrivastava, resident of Mohalla- Nagratoli, Ranchi. 5. Shri K.B. Sahay son of Late Jaduvansh Sahay, resident of Mohalla- Nai Godown, Gaya. 6. Dr. Shiva Prakash Lal Son of Shri Vijay Prakash Lal, resident of Parmanand Path, Gaya. 7. Shri Radha Raman Prasad son of Late Banke Bihari Prasad, resident of Jail Press, Gaya. . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Magadh University, Bodh Gaya through its Vice-Chancellor, 3. Naresh Sharma son of Late Chandrika Sharma, resident of Mohalla- Garhpar, P.S.- Bihar, District- Nalanda, at present Lecturer in Physics, Nalanda College, Biharsharif, District- Nalanda. 4. The Officer-in-charge, Bihar police station, Bihar Sharif, District- Nalanda. . . . . . . Respondents. with CR. WJC No.760 of 1997 1. DR. MAHENDRA PRASAD SINGH son of Late Bal Keshwar Singh, Principal, Nalanda College, Bihar Sharif, Dist. Nalanda. 2. Porf. Lalit Kumar Singh Mauar son of late Rajeshwar Prasad Singh Mauar, Mohalla- Garh Par, Biharsharif, P.S. Bihar, Dist. Nalana. 3. Prof. Haridwar Singh son of late Ram Khelawan Singh, the then Principal, Nalanda College, Biharsharif, at present Principal, K.L.S. College, Nawada, P.S. and Dist. Nawada. . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Magadh University, Bodh Gaya through its Vice-Chancellor 3. Naresh Sharma son of Late Chandrika Sharma, resident of Mohalla- Garhpar, P.S.- Bihar, District- Nalanda, at present Lecturer in Physics, Nalanda College, Biharsharif, District- Nalanda 4. The Officer-in-charge, Bihar police station, Bihar Sharif, District- Nalanda. . . . . . . Respondents ----------- 8/ 09.09.2010 Both Cr.W.J.C. no. 27 of 1998 and Cr.W.J.C. No. 760 of 1997 are taken up together for hearing. At the out set learned counsel submits that the petitioner no.5, Shri K.B. Sahay and petitioner no. 6 Dr. shiva 2 Prakash Lal (petitioners of Cr. W.J.C. No. 27 of 1998) are dead. He further submits that petitioner nos.1 and 2 were over 85 years of age and cannot say with certainty whether they are alive or not. There are seven petitioners in Cr.W.J.C. No. 27 of 1998. Petitioner no.1, Dr. Indu Dhan, was the Vice-chancellor in the year 1990. Petitioner no.2 Dr. R.K. Mahto was also Vice- chancellor in year 1992-93, petitioner no.3 was acting Registrar in 1989, petitioner no.4 was Registrar in the year 1991 and petitioner no.7 was the Finance Officer in the University. There are three petitioners in Cr.W.J.C. No. 760 of 1997. Petitioner nos.1 and 3 were Principals of Nalanda College, Bihar Sharif and petitioner no.2 was Professor in the aforesaid college. One Naresh Sharma, a Lecturer in the Department of Physics, Nalanda College, Bihar Sharif and who was also the Secretary, Teacher’s Association filed complaint case bearing Complaint case no. 322 C of 1994 giving rise to Bihar P.S. case no. 274 of 1994 under Sections 120B, 406 and 409 of the Indian Penal Code In short, the allegation was that the Provident Fund deposited by the employees of the College was utilized towards payment of salary and as such the provident fund so deposited was misappropriated. The police after investigation submitted final form finding the matter to be a civil dispute. However, differing with the police report, the learned Magistrate took cognizance 3 under Sections 409, 406 and 120 B of the Indian Penal Code and issued summons against the petitioners to face trial. Mr. A.B.Ojha, learned counsel, appearing for the petitioners submits that there was no misappropriation. He further submits that during the relevant time, the University did not receive full salary grant from the Government, for which there was hue and cry from both teaching and non-teaching staff, as such to tide over the matter, money deposited in the provident fund after due information to the depositors were utilized for payment of salary. He further submits that there is no allegation that subsequently the employees did not receive the provident fund money. Learned counsel submits that it would appear from the counter affidavit filed on behalf of the University that at times the grant from Government was not received in time. On various occasions, only after directions from this Court, grants were received for making payment to the teachers and for being deposited in Provident Fund from which money was drawn earlier for paying salary. Learned counsel submits that in one similar case, the Hon’ble Apex Court directed that it is for the provident fund commissioner to see whether the provident fund amount has been misappropriated or not. No one appears on behalf of opposite party despite valid service of notice. It appears that police after investigation submitted 4 final form stating the case to be mistake of fact. In course of investigation, no misappropriation or embezzlement of fund was found. The matter related to transfer of money from one fund to other fund for payment of salary. In view of the fact that in course of investigation no case of misappropriation or embezzlement was found, I quash the order taking cognizance and summoning the accused/petitioners to face trial. However, it will be open for the Provident Fund Commissioner to look into the matter, if the issue still survives. With the aforesaid observation, these applications are allowed. Uday/ (Samarendra Pratap Singh, J.)