Vinay Joshi JUDGMENT
Vinay Joshi, J.
1. Heard.
2. Admit.
3. This is an application under Section 482 of the Code of Criminal Procedure ('Code') seeking discharge. The applicant (accused No. 13) has initially applied to the learned Magistrate for discharge vide Exh. 141, however, the said application was rejected vide order dated 15.04.2017. Being aggrieved, the applicant has filed criminal revision No. 133/2017. However, it was dismissed vide order dated 06.11.2019, which is impugned herein.
4. The applicant is a Government Auditor. He has been arraigned as accused No. 13 in Crime No. 21/2011 registered for the offence punishable under Sections 406, 409, 420, 120B, 166, 167, 217 and 218 read with Section 34 of the Indian Penal Code. The prosecution was initiated at the instance of report lodged by one of the depositor.
5. It is the prosecution case that the Divisional Joint Registrar (Audit) directed the applicant to conduct audit of the affairs of the Brijlal Biyani Cooperative Credit Society, Akola ('Society) for the period from 01.04.2007 to 31.03.2009. Accordingly, the applicant has carried audit and submitted audit note on 03.06.2010. The applicant has also submitted special audit report to the Deputy Registrar, Cooperative Societies, Akola pointing the irregularities and discrepancies noted in the audit. The applicant sought opinion from the District Government Pleader for lodgment of report to which he has been informed vide Communication dated 01.11.2010 to lodge the Police Report. The applicant has received a rectification report dated 05.01.2011 from the Co-operative Society informing that they have rectified the discrepancies and recovered the major amount as well as the disbursed to the members.
6. In the light of said communication, the applicant again sought opinion of the District Government Pleader about lodging of the Police Report, on which, vide communication dated 08.02.2011, it was informed by the District Government Pleader that if the audit objections are complied, then there is no question of lodging of the Police Report. In such a background at the instance of report lodged by one of the Depositor crime was registered against the Officer-bearers of the Society who are arraigned as accused Nos. 1 to 12, besides that the applicant Government Auditor was also arraigned as accused No. 13 alleging that he has helped the co-accused by non-filing of the Police Report. Principally, the applicant has been made accused on the charge of criminal conspiracy punishable under Section 120B of the Indian Penal Code.
7. The learned counsel appearing for the applicant while claiming discharge submitted that the applicant has acted in his official capacity and therefore, for want of sanction to prosecute in terms of Section 197 of the Code, the prosecution is not tenable against him. It is submitted that since the District Government Pleader vide communication dated 08.02.2011 has informed that there is no necessity to file report, therefore, it cannot be presumed that the appl........