IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12739 of 2010 BINDESHWAR NAYAK Versus STATE OF BIHAR THRU.VIG. For the petitioner: Shri Y.V.Giri,Sr. Adv, Shri Awadhesh Kumar Mishra,Adv. For the State(Vigilance) : Shri Arbind Kumar, S.C.(Spl.Vig.) - - - - 2. 6.7.2010 Learned counsel for the petitioner has filed the certified copy of the charge sheet. Let it be placed on record. Heard. This petition has been filed for seeking an order quashing the proceedings of Special Case No.1 of 2008 in which an order of cognizance and summoning was passed on 4.2.2010 by the learned Special Judge( Vigilance)-I, Patna. The F.I.R. is annexure-1 to the present petition and the gist of the allegation is that without being authorized to act as the Examination Controller for conducting examinations of Pharmacy Institute, initially not being authorised and if he was so authorized, the petitioner committed misappropriation of an amount of Rs. 30,000/- by withdrawing the amount in instalments of Rs. 10,000/- each by three 2 cheques dated 3.4.2004, 12.4.2004 and 7.5.2004. The account from which the amount was withdrawn was standing in the name of Deputy Director-cum-Examination Controller (Pharmacy), Health Services, Bihar, Patna and it was to be operated by such an authority. It was alleged that on the three dates on which the withdrawals were made by three cheques are mentioned in the F.I.R., the petitioner was not the Examination Controller of Pharmacy examinations and, as such, he could not have withdrawn the amount and it was an embezzlement of the Government money. In order to substantiating the above allegation that the petitioner was not notified to be the Examination Controller of Pharmacy examinations, three different correspondences were entered with different persons as may appear from the allegations which are under the heading ‘as to who was the Examination Controller of Pharmacy examinations’ and it was alleged that on different three dates, i.e.,. 3.4.2004, 12.4.2004 and 7.5.2004, the petitioner was not the 3 Controller of Examinations rather it was Dr. (Captain) N.P.Yadav who was the Examination Controller and, as such, the withdrawals were tantamount to misappropriation of the amount. After investigating the case the vigilance Cell of the Government of Bihar submitted the charge sheet dated 6.1.2009 and it enlisted the allegations upon which the case was framed. The above allegation appears also detailed in the charge sheet. Besides, it was stated in the charge sheet that the petitioner in spite of having the sanctioned amount of Rs. 3,52,000/- for purchasing different articles with the approval of the Purchase Committee for the financial year 2006-07, had exceeded the limits thereof and had purchased articles of the value of Rs. 25,12,000/- and those articles were lying scattered in the institute. It was further alleged that the Committee of three Professors of the institute had submitted a report indicating as if the petitioner had indulged into the above illegal and excess purchase of the articles as indicated 4 above. However, while concluding the above allegation it was pointed out by the investigating agency in the charge sheet that in fact there was no evidence of misappropriating any amount by the petitioner, but his act of withdrawing and spending Government money was impinging upon the financial irregularity which appears from the Audit Report and the report of the investigating agency also. This is the opinion expressed by the Investigating Officer at serial no. 8 of the charge sheet. The whole allegation hinges upon the controversy which has been created regarding the status of the petitioner on three dates on which he issued three cheques to withdraw Rs. 10,000/- by each of the cheques. The allegation, as I have just pointed out, was that the petitioner was not notified to be the Examination Controller of Pharmacy Examinations, rather, it was someone else. In order to controverting the above allegation, the attention of the 5 Court has been drawn to the statements in the F.I.R. itself which reads that the Govt. of Bihar through its department of Health( Medical Education and Family Planning) by administrative order no. 912(5) dated 30.10.1998 had notified the petitioner as the Deputy Director(Pharmacy), Health Services, Govt. of Bihar as the Examination Controller of Pharmacy examinations. This statement is made at page 2 of the F.I.R. itself. Besides, the copy of the notification noted above has also been annexed as an annexure to the F.I.R. Thus, it becomes admitted that the petitioner was a notified Examination Controller of Pharmacy examination. So far as the fact that Dr. (Capt.) N.P.Yadav was the actual Controller is concerned, the same stands controverted by the statements in the F.I.R. itself at page 3 which indicates that Dr. Yadav was the acting Examination Controller of Health Services, Govt. of Bihar and he was not the Examination Controller of Pharmacy examinations. There is no material placed 6 by the investigating agency even by making any reference in the charge sheet that the notification bearing no.912(5) dated 30.10.1998 issued by the Health Department, Govt. of Bihar by which the petitioner was authorized to act as the Examination Controller of Pharmacy examinations had been cancelled or withdrawn. It leaves the matter at it that the notification was in vogue and the petitioner was acting in the capacity in which he was notified to act. In the above view of the matter, what the Court finds is that the cheques which were said to be without authorization by which the petitioner withdrew the total amount of Rs. 30,000/- in instalments of Rs. 10,000/- each on three occasions cannot be said to be unauthorised or illegal withdrwals. As regards the expenditure of the amount by the petitioner in discharge of his official duties as Examination Controller of Pharmacy examinations, the whole allegation appears negated by the admitted fact of the Vigilance department in item no. 8 of the charge sheet that 7 there was absolute lack of evidence which could make out a case of misappropriation or embezzlement on the part of the petitioner. There might be some comments by some agencies, like, the Audit or there might be some report but no material appears placed or collected by the Vigilance Cell so as to substantiating the charge that financial irregularities which were found by any of the agencies were impinging upon the acts of misappropriation or breach of trust or even falsification of account. That being so, the order taking cognizance dated 4.2.2010 and the whole prosecution on that account in Special Case No. 1 of 2008 appears without any basis and, as such, the complete abuse of the process of the court. In the result, the petition is allowed and prosecution against the petitioner is quashed. Kanth ( Dharnidhar Jha, J.)