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TMI Blog2023 (8) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2016 registered with Dehgam Police Station for the offences punishable under Sections 409 and 114 of the IPC and the further proceedings arising out thereof are quashed and set aside - Petition allowed. - Mr. Justice J.C. Doshi For the Applicant No. 1 : Mr Hriday Buch(2372). For the Respondent No. 2 : DS Aff.not filed (R). For the Respondent No. 1, 2 : Notice not recd back. For the Respondent No. 1 : Mr Ronak Raval App. For the Respondent No. 2 : Rule served by DS. ORAL JUDGMENT The present petition seeks quashment of the FIR being I CR No. 80 of 2016 registered with Dehgam Police Station for the offences punishable under Sections 409 and 114 of the IPC which came to be registered by the respondent No. 2 org. complainant. 2. Briefly stated; the case of the petitioner is that the petitioner was serving as Deputy Manager (Accounts) in the State Bank of India, Dehgam Branch; while one Mr.Harishbhai Maganbhai Parmar who was shown accused No. 1 was serving Head Cash Officer in the said Branch and it is their joint responsibility to tally accounts (currency) in the Bank. That on 19/12/2006, a surprise checking was conducted by the Nodal Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in case of M/s. Videocon Industries Ltd. vs. State of Maharashtra [AIR 2016 SC 2843], more particularly, paragraph 18 thereof, he would submit that in case of exoneration on merits, independent proceeding where the allegations are unfounded on the set of evidence, the criminal prosecution on the same set of facts cannot be allowed to continue. 5.2 Mainly on above submissions, learned Advocate for the petitioner submits to allow the present petition as the petitioner got retired and has not misappropriated the money of the Bank; else it would seriously and adversely hamper the life of the petitioner. 5.3 In light of these submissions, learned Advocate Mr.Buch for the petitioner seeks adjudication of this petition in favour of the petitioner. 6. Vehemently, learned APP Mr.Ronak Raval for respondent State would submit that at earlier point of time vide letter dated 20/04/2007 Vide O/W No. DEH/NISC-2007-08-26, a written complaint was forwarded to the concerned Police Station; but the Police Station has not taken into consideration the said written complaint. He would further submit that looking to this aspect, it appears that the information was lodged as soon as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s / Small Coin balances while taking over permanent charge as Branch Accountant on 21.07.2006, due to improper storage of the coins bags in the strong room. (iv) No monetary loss has occurred to the Bank as the entire amount of cash storage has been recovered equally from the Cash officer and the Charge-sheeted officer. The Chargesheeted officer has accepted, in his submission dated 08/10/2008 on the IA s Report, the recovery of Rs. 2,26,250/- from his as penalty to him. (v) As per the investigation report, Shri H.M. Parmar, Deputy Manager (Cash) did not perform his duty as Cash Officer with due diligence and sincerely. Certain act on the part of Shri Parmar mentioned under para 8 of the investigation officer which has resulted into this shortage of cash in the Currency Chest and Small Coins Depot balances. Keeping in mind the whole matter in totality, I am of the considered view that the ends of justice would be adequately meet by imposing the following penalty of Shri G. A. Rathod. Reduction by one stage in the time scale of pay for one year, with further direction that the officer will not earn increments to pay during the period of such reduction and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusted with the property which he is duly bound to account for and that he committed criminal breach of trust [see: Sadhupati Nageswara Rao vs State Of Andhra Pradesh [2012 8 SCC 547]. 13. The finding in the departmental proceeding indicates that the petitioner was not entrusted the property. Thus, the basic ingredients of offence punishable under Section 409 of the IPC is lacking. In addition thereof, there is ten years of yawning and unexplained gap for registration of the FIR. 14. No doubt, while exercising the powers under Section 482 of the Cr.PC the complaint / FIR has to be read as a whole. However, if reading of the FIR as a whole does not constitute the elements of alleged offence, the Court owes the duty to scuttle such vexatious proceedings. In the recent decision of the Hon ble Apex Court in the case of Mahmood Ali Ors vs. State of UP Ors rendered in Criminal Appeal No. 2341 OF 2023 (Arising out of S.L.P. (Criminal) No. 12459 of 2022) in paragraph 12 it has been held and observed as under: 12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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