M.B.Farooqi - (1.) THE applicant, Sri A. Manik Raj, was employed as a clerk in St. Peter's College, Agra. It was his duty to collect fees from the students, maintain accounts and handover the amount so collected to the Principal-cum-Rector. THE accounts of the College were got audited by a firm of Auditors called M/s. Mehta and Company in the year 1966. THE Auditors found that the applicant had not handed over to the Principal the entire amount of fee received by him during the years 1962, 1963, 1964 and 1965. THEy also found that the applicant had falsified the accounts and embezzled an aggregate amount of Rs. 43, 554.64 P. as detailed below ;- A-From Day Scholar's Fee*; 1962 ... Rs. 7881.29 1963 ... Rs. 8453.45 1964 ... Rs. 8361.25 1965 ... Rs. 5640.30 B-From the Boarders' Fee : 1963 ... Rs. 3705.30 1964 ... Rs. 1886.36 1965 ... Rs. 7626.69 On 26-11-1976 the Principal reported the matter for action to the police. A case was registered against the applicant at Police Station Hariparwat, district Agra. As a result of investigation, which followed, charge-sheets were submitted against the applicant in the court of Magistrate 1st Class Agra. By his order dated 20th April, 1970, the learned Magistrate discharged the applicant with regard to the alleged embezzlement in the year 1962. Against the aforesaid order the State filed a revision, which was allowed by the learned Sessions Judge, Agra, on 19-11-1970 and the case was remanded back to the Magistrate. After remand the learned Magistrate, by his order dated 7-2-1972, committed the accused to stand his trial under Sections 408/477-A, IPC. THE applicant challenged the order in revision before this Court, but it was all in vain. In the meantime, the applicant was committed to and tried by the court of Sessions, Agra, in Sessions Trial Nos. 113, 114 and 115 of 1971, with regard to embezzlements during the years 1963, 64 and 65. THE learned Sessions Judge convicted and sentenced the applicant under Sections 408, 477-A and 468, IPC. THE applicant appealed to this Court. On 14-7-1975 a learned Judge of this court allowed the appeals and acquitted the applicant.
(2.) THE applicant's trial with regard to the alleged embezzlement in the year 1962 is still pending, being Sessions Trial No. 131 of 1972, in the court of III Additional Sessions Judge, Agra. By means of this application under Section 482, CrPC, the applicant prays that the trial as also the committal order dated 7-2-1972 be quashed. Learned Counsel for the applicant invited my attention to the judgment dated 14-7-1975 (Annexure "3" to the application) and contended that while allowing the appeals and acquitting the applicant, this Court has held, firstly, that "from what has been stated by R. S. Mehta, the most that could be said to have been proved is that totalling was not correctly done by the appellant secondly, that "there is nothing to show that the appellant actually was entrusted with all the items shown in the cash book or that he had received all these items;" thirdly, that "even entries in the cash-book were made often by B. R. Sharma and also at times by father Lawrence;" fourthly, that "in view of the statements made, it cannot be definitely stated that all the items appearing in the handwriting of the appellant really were entrusted to him and lastly, that "the amounts of the College were duly audited each year by official auditors and accounts were also submitted in the Manager's report and that no embezzlement or falsification of accounts were ever reported." He further contended that these findings are final, conclusive and binding on the prosecution ; that no evidence can be led by the prosecution in the pending Sessions Trial to upset these findings ; that if that be so, as it really is, then there is nothing left to be proved in the pending Sessions Trial with regard to the alleged embezzlement in the year 1962 ; that in these circumstances the continuance of the said trial would amount to an abuse of the process of the court and must be quashed ; and the learned counsel relied particularly on a decision of the Supreme Court in Manipur Administration v. Bira Singh, AIR 1965 SC 87. In Bira Singh's case (supra) it was held that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res-judicata against the prosecution not as a bar to the trial or conviction -of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact, when the accused is tried, subsequently, even for a different offence, which might be permitted by the terms of Section 403 (2), CrPC. On this principle, if the issues of fact arising in the Sessions Trial, now pending, are found to be covered by the findings arrived at by this Court in favour of the applicant in the earlier case, then the prosecution will be certainly debarred from leading evidence to disturb those findings and the applicant can legitimately cLalm that the continuance of the said Sessions Trial is absurd and meaningless or rather an abuse of the process of the court. So the crucial question in this case is whether the issues of fact arising in the Sessions Trial, now pending, have been already decided in favour of the applicant in the earlier case.
(3.) IN paragraph 6 of the counter- affidavit it is stated :- " that in the previous trials the mode of embezzlement alleged by the prosecution was that the accused made false totals in the cash book of the amount of fee and thereby misappropriated money, while in the pending Sessions Trial the issue involves is that the accused received the fee from a few guardians of the students in cash while he showed his receipt of money in the cash book through cheques and since no cheques were found in the bank, it is clear that the money was misappropriated by the accused-applicant. These facts were never in issue in the previous trials, hence the petition by the accused is misconceived. The police will examine many new witnesses in the pending case and give evidence to prove that the accused has falsely shown the receipt of the cheques of Dina Nath Kapoor and he also falsely shown the receipt of Baikunth Nath, and others." IN the rejoinder-affidavit the petitioner has stated that the allegations made in this paragraph are wrong and denied insofar as they go to state that the mode of the alleged embezzlement in the trial now pending was different from those regarding which the applicant has been acquitted. But the denial is so much vague and general in terms that no value can be attached to it. Accordingly, I will assume that the prosecution case set out in the Sessions Trial, now pending, is that stated in paragraph 6 of the counter-affidavit. IN this view the main question arising on the facts of the Sessions Trial, now pending, will be whether the applicant received fee from some of the guardians of the students, in particular, from Dina Nath Kapoor, Baikunth Nath and Amar Nath in cash and falsely showed the same in the cash book as having been received by cheque and in this way misappropriated the money. This is an issue of fact which is not covered, either directly or indirectly, by the findings' given by this Court in favour of the applicant in the earlier case. The principal finding in favour of the applicant in the earlier case was that all the items shown in the cash book could not be said to have been entrusted to or received by him. That certainly does not mean that the items relied on by the prosecution in the Sessions Trial, now pending, were never entrusted to or received by the applicant. Accordingly, the prosecution would not be precluded from leading evidence on this issue. That being so, the continuance of the pending Sessions Trial cannot be said to be absurd or meaningless, much less, as constituting an abuse of the process of the court. The argument to the contrary of the learned counsel for the petitioner must fail. In the result, I find no merit in this petition. It is dismissed accordingly. The stay order passed by this court on 19-10-1976 is vacated. Application dismissed.;