BOJAN Vs. STATE BY INSPECTOR OF POLICE

JUDGEMENT

(1.) This is a revision by the accused. The case of the prosecution is summarily as follows:

(2.) THERE are in the Nilgiris the Anikorai Co -operative Agricultural Credit Society and also the Nilgiris Co -operative Marketing Society. The Nilgiris Agricultural Credit Society gets loan from the Nilgiris District Cooperative Bank and lends money to its members. The member sells his products to the marketing society and instead of money, the marketing Society would give a receipt called "Pattiyal", which he will bring to the Agricultural Credit Society and the corresponding amount will be credited in favour of the concerned member and set off against his loan. The marketing society sent a Pattiyal, Ex. P 19 in respect of P. W. 1 for a sum of Rs. 190.54 p. to the agricultural society, so as to enable the agricultural society to adjust the above said amount towards the 10a[1 No. 48)6 of P.W. 1. The Pattiyal was received by the accused, who is the Secretary of the agricultural credit society. In this case, instead of making credit entry in the ledger folio, Ex. P. 2 towards the loan due from P.W. 1, the accused made an entry in Ex P. 21, dated 12.11.1973 in the suspense due register, Ex. P. 20 in the name of P.W. 1. On 23.11.1973, the accused forged the voucher number 269, Ex. P. 11, as if it was given by P. W. 1 and using that voucher as a genuine voucher he made a debit entry in Ex. P. 21, as if Rs. 190.54 p. was paid in case to P. W. 1. The appellant made also a corresponding entry in Ex. P. 23 in the Day Book, Ex. P. 22. The amount shown to have been paid to P.W. 1 was not in fact paid to him. The accused mis -appropriated the said sum to his own use. Therefore, the case of the prosecution is that the appellant committed criminal breach of trust in respect of the said amount and falsified the records of the Society with a view to scream his dis -honest act. Further, he has forged the voucher, Ex. P. 11 and used it as a genuine one, knowing it to be a forged one. After the payment of the above said amount of Rs. 190.54 p., the entire loan No. 4826 taken by the P.W. 1 was to be extinguished; on the belief that it was so in the registers of the agricultural society. P.W. 1 asked for a 'no due certificate', presumably to apply for a fresh loan, but the same was refused by the accused. It is how P.W. 1 happened to know that the loan amount of Rs. 190.54 p. was not adjusted towards his loan. When, he enquired P.W. 1, he gave an evasive answer and hence, P.W. 1 was cons. trained to send a report to the Nilgiris District Central Agricultural Co -operative Society. Ex. P. 8 is the copy of that report. The accused was suspended on 7.11.1973 with effect from

(3.) I shall now deal with the contentions raised by the learned counsel for the revision petitioner. When an employee has committed an act, which would amount to an offence under law and also a mis conduct under the relevant standing orders, the management have at their disposal, two kinds of actions. One is to launch a prosecution and the another is to start a disciplinary proceeding. But, the management is not bound to take both. When the management chooses to resort to both the actions, the question arises as to the time when each of them has to be started. It is to be noted that the nature of a criminal trial and that of a domestic enquiry are quite different and that in a criminal trial, the standard of proof is much more strict than in a domestic enquiry. In a criminal trial the accused can remain silent and leave the prosecution prove the case, but in a domestic enquiry, where the standard of proof is not the same, the accused person may have to participate more actively in the enquiry, put forth his case more in detail and even endeavour to prove it by adducing evidence. Such being the case, if the criminal trial takes place after the domestic enquiry, the concerned person would be prejudiced either he would have to disclose his case in the domestic enquiry before the trial starts or he would have to refrain from disclosing his case in the domestic enquiry and therefore loose in that enquiry. That is the reason why, it would be just and proper that the criminal trial takes place first and the domestic enquiry second. Though there is no statutory rule to that effect, the Courts have always opined that in view of the legal frame work of our country that should be the normal course of things. In other words, the management need not in all cases opt for a criminal trial. If it opts for such a course, the domestic enquiry should be stayed. If the criminal trial ends in favour of the management, the latter can take action on the basis of the finding of the criminal Court. If not, it can conduct its domestic enquiry or take action according to the circumstances of the case. But both the domestic enquiry should not precede the criminal trial. In this case, it is found that the criminal prosecution was launched after the domestic enquiry was over and in that way, the accused in the criminal proceedings was obviously prejudiced.