M.Wahajuddin - (1.) SRI J. N. Chaturvedi appeared for the applicant and the State Counsel appeared for the State. I have heard them.
(2.) THE prayer is that the proceedings against the applicant in the court of Chief Matropolitan Magistrate, Kanpur, in Crime No. 724 of 1971 and Case No. 1491 of 1978 State v. Hansraj Chaturvedi, under Section 409, IPC and also Crime No. 1286 of 1971 case No. 1492 of 1978, State of U. P. v. Hansraj Chaturvedi, may both be quashed. It is urged that the Government Treasurer, Sri Vishal Chand, alone can be said to be the agent of the Government and the applicant and like persons, simply in the employment of Vishal Chand Jain, would not be covered within the provisions and alleged mischief of Section 409 IPC. It is also stated that a civil suit filed by Sri Vishal Chand Jain against the applicant for the recovery of the amount is already pending, so the criminal action would not lie. THEre are certain other averments made in the case, which relate to question of facts and denial of the alleged embezzlement. THE law is now well settled. It has been held in the case of Delhi Municipality v. Ram Kishan, AIR 1983 SC 67 that under Section 482 CrPC question of facts are not to be considered, it is the function of the Magistrate. Whether an entrustment was made to the applicant is a question of fact. Whether he was an employee and in the course of that employment entrustment was made is again a question of fact and whether it was he who embezzled the amount is also a question of fact. THEse matters cannot be looked into by this Court. Other questions of facts and paints raised in that connection again cannot be considered. It was next urged that as a civil action is pending, the criminal trial cannot proceed. Reliance is placed upon the case of Satyendra Kumar Gupta v. A. B. Shorewala, 1979 ACrR 21. Each case depends upon its own facts. That was a case of defamation, so stay was considered desirable. The criminal court has the exclusive jurisdiction to decide criminal matters. Whether the offence by the evidence is made out or not is a matter with which the criminal court is concerned and has the jurisdiction. If the iugredients of Section 409, IPC is made out, then simply because there is an independent civil liability the criminal case will not be barred. I, therefore, hold that this application under Section 482, CrPC has absolutely no force and the criminal proceedings can proceed and the questions of fact can be decided by the trial court considering the ingredients of the offence and this Court will not enter into them. The application is rejected. Whatever observations I have made is simply for the purpose of deciding the case under Section 482, CrPC and the Magistrate will in no way be prejudiced by any observation and he shall make his independent approach on the question of facts as well as of law. -- Application rejected.;