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Rameshwar Prasad v. State Of U.P. & Another - APPLICATION U/s 482 No. 2134 of 2007  RD-AH 2479 (14 February 2007)
(Court No. 48)
Criminal Misc. Application No. 2134 of 2007
Rameshwar Prasad son of Budh Singh,
Resident of Village Chosana,
Police Station Jhingiyana,
District Muzaffar Nagar. .......... ... Accused- Applicant.
1. State of U.P.
2. Mr. M.L. Gautam,
Addl. District Cooperative Officer,Tehsil Kairana
District Muzaffar Nagar. ....... Complainant -Opp. parties
Hon'ble Barkat Ali Zaidi, J.
1. The applicant is a Secretary Sadhan Sahkari Samiti Ltd. Balla Majra, District Muzaffar Nagar. On 29.8.2003 after a physical inspection of the Stocks of the Fertilizers by the Branch Manager, District Cooperative Bank Ltd. Muzaffar Nagar, it was found that there was shortage of 7242 bags of Urea and 106 bags D.A.P. costing Rs. 20,46,710/-. Thereafter, the District Registrar Cooperative Societies ordered the enquiry against him and an Addl. District Cooperative Officer after enquiry lodged a first information report in Case Crime No. 57 of 2004 under Section 409 I.P.C. against him. Thereafter, charge-sheet was submitted against the applicant under Sections 409,467,468,471 and 420 I.P.C.
2. The only arguments at the bar by the counsel for the applicant has been that the applicant has deposited the entire amount said to have been embezzled by him prior to lodging of the aforesaid first information report and he cannot, therefore, be liable for the embezzlement and the delay in depositing the amount was caused due to his illness . It was, therefore, argued that it was a case of a delayed deposit and no charge of embezzlement could be sustained against him.
3. Reliance on this argument was placed by the counsel for the applicant of the case of Narendra Ptatap Narain Singh and another Vs. State of U.P. , A.I.R.1991 S.C. 1394 and it was argued on the basis thereof that it has been held in this case that if the amount sought to be embezzled has been deposited prior to investigation, the charge of misappropriation or embezzlement could not be sustained.
4. This argument seems to have been advanced by the learned counsel on the basis of the head note given in the report of the case (Supra) but the head note does not give a full and correct picture of the statement of law contained in the case.
5. This case is one where it was held that the amount was not deposited because the sale of the items concerned was made on credit and the amount was not realized in time. It was, on the basis of the finding that the sales for which the amount was not deposited, were made on credit that it was held by the Supreme Court that no charge under Section 409 I.P.C. could be sustained.
6. The following observations made in this case will make this clear, "We, in the above circumstances, feel that the applicant's could not be mulcted with criminality of breach of trust for following the established practice of credit sale through VLWs."
7. However, in this case, the position is not one of credit of sale nor is there any such allegation. The contention of the applicant is that he could not deposit the amount within time due to his sickness which fact has been stated in paragraph no.13 of the affidavit filed in support of this application. The aforesaid pronouncement of the Supreme court relied upon by the learned counsel for applicant will not be, therefore, applicable to the facts of the present case. It may also be noted that though the applicant has said that he has deposited the entire amount as mentioned in paragraph No.21 of the affidavit, yet in paragraph No.12 of the affidavit, it has been mentioned that the Additional District Cooperative Officer and the Assistant Development Officer have sent a report that Rs. 22.41 lacs out of Rs. 32.49 lacs have been deposited by the applicant. There is some confusion on this aspect also. However, as mentioned above, even if the full amount has been deposited by the applicant, he cannot be entitled to a discharge on the basis of the aforementioned pronouncement of the Supreme court.
8. There is also a statement in the affidavit in paragraph no.10 that Section 409 I.P.C. will not be applicable because the applicant is not a public servant but the question whether Section 409 I.P.C. will not be applicable or Section 405 and 406 I.P.C. will be applicable is a matter to be decided by the Trial Court at the time of framing charge.
9. In view of what has been said above, the application fails and is dismissed.
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