- (1.) The order dated 15/06/2010, passed by the Judicial Magistrate, Jamshedpur in Telco (Govindpur) P.S. Case No. 89 of 2006 (G.R. no. 927 of 2006), whereby and whereunder cognizance of the offence punishable under Sections 406, 408, 120B of the Indian Penal Code has been taken against the petitioners and also the order dated 25/07/2012, under which charges have been framed under the aforesaid offences, are being sought to be quashed on the ground that for the said allegation earlier also a first information report was lodged in which, upon submission of the charge sheet, cognizance of the offence has been taken and the petitioners have been put on trial.
(2.) Mr. Das, learned counsel appearing for the petitioners submits that earlier one Satyawati Vig, who claimed herself to be the Chairman of the Society namely Vig Educational & Cultural Society, Jamshedpur, lodged a case alleging therein that petitioner no. 1, the Secretary of the Society and his wife petitioner no. 2 being the Principal of Vig English School, have misappropriated huge amount. Upon such allegation, case was registered as Telco (Govindpur) P.S. Case No. 254 of 2005 under Sections 420, 409, 467, 468/34 of the Indian Penal Code. Upon submission of the charge sheet, when cognizance was taken, the petitioners were put on trial. Subsequently, the informant Hareram Singh claiming to be the Secretary of the Society, lodged a complaint case bearing C1 Case No. 474 of 2006, alleging therein that petitioner no. 1, the Ex-Secretary of the Society and also his wife petitioner No. 2, the Principal of the Vig English School, in connivance with the other accused persons, i.e. Ex-Assistant Secretary, Officiating Principal of the School, Accountant and the Teacher In-charge of the School, misappropriated a sum of Rs. 73,48,435/- during the year 2006-07. That apart a sum of Rs. 6,73,48,435/- have also been misappropriated. The said complaint was sent before the concerned police station for its institution and investigation. Thereupon, the case was registered as Telco (Govindpur) P.S. Case No. 89 of 2006 under Sections 406, 408, 120B/34 of the Indian Penal Code. Upon investigation, the police submitted charge sheet under which the cognizance of the offences as aforesaid, was taken and even the charges have been framed against the petitioners and, thereby, the petitioners have been put to trial for the allegations, which are also the subject matter of the trial of earlier case, i.e. Telco (Govindpur) P.S. Case No. 254 of 2005 and, thereby, the petitioners are being vexed twice for the same allegation, which is against the mandate of the Constitution and also against the decisions rendered in the cases of "T.T.Antony-versus- State of Kerala & Others", 2001 6 SCC 181 , "Babubahai -versus- State of Gujrat and others", 2010 12 SCC 254 ". Under the situation, the impugned orders taking cognizance of the offence and also framing of the charges in Telco (Govindpur) P.S. Case No. 89 of 2006 (G.R. No. 927/2006), are fit to be set aside.
(3.) As against this, Mr. S.K.Pandey, learned counsel appearing for O.P. No. 2, submits that earlier the then Chairman of Vig Educational & Cultural Society, Chotagovindpur, Jamshedpur, has lodged the case, which was registered as Telco (Govindpur) P.S. Case No. 254 of 2005. for misappropriation of the amount of the Society. The relevant period of misappropriation of the amount in that case was up to the year 2005, whereas the instant case has been lodged in compliance of the direction of the Sub- Divisional Officer, Dalbhum, Jamshedpur, given in the report not only against these two petitioners, but also against other 8 accused persons, who, in connivance with each other, had misappropriated a sum of Rs. 73,48,435/- out of the total amount of Rs. 78,98,435/- during the academic Sessions of 2006 and 2007. The total amount, which was found to have been misappropriated, was mentioned in the FIR as Rs. 6,73,48,435/-. Thus, it was submitted that when the amount of defalcation and also the period of defalcation as well as the persons, who had not been made accused earlier, have been made accused in the instance case, it cannot be said that both the cases have been lodged on the same and similar allegations and, thereby, the submissions advanced on behalf of the petitioners for quashing of the order taking cognizance and also the order framing charges, never appears to be tenable. In this regard, learned counsel has referred to the decisions rendered in the cases of "M.Krishna- versus- State of Karnataka, 1999 2 Supreme 222 , Rameshchandra Nandlal Parikhversus- State of Gujrat & Anr., 2006 1 SCC 732 ". Thus, it was submitted that where two different and distinct offences are committed by different persons there never happens to be commonality of transaction between the two, the question of quashing of the order taking cognizance and also the order framing charges in the subsequent case does not arise as the ratio laid down in the cases, referred to on behalf of the petitioners, are never applicable in the instant case.;