A government policy decision not to lodge prosecution in given kind of cases and to, in fact, withdraw the prosecution if already lodged, in such cases it does not lie in the Government's mouth to contend that in the cases chosen by themselves they would refuse to make any such application.

JUDGMENT - SHARAD MANOHAR, J.:---The contention of the petitioner before me is that there is a policy decision taken by the Government to condone or connive at certain kind of offences involving criminal misappropriation. The petitioner's contention is not that he had committed any such offences; but re relies upon the above policy decision of the Government and contends that even assuming that he was guilty of some kind of criminal misappropriation of the monies belonging to the Government having regard to the above-mentioned Government policy, he is entitled to be let off without any action against him. The fact that the Government has laid down such a policy has been conceded before me by the learned Public Prosecutor by producing the relevant Government Circular in that behalf. The result is that I have no other alternative but to accept the petitioner's contention and to allow this appeal filed by the Government servant who was convicted by the courts below for defalcation of public money.

2. The relevant facts are very few :

The petitioner (who will be referred to hereafter as the 'accused') was working as an Agricultural Assistant, in charge of the recovery of Tagai loans, at village Sadavan in Amalner Taluka of Jalgaon District. He worked on that post at that place till November, 1974. Sometime during the period between 18-11-1973 and 23-4-1974, he is alleged to have misappropriated a sum of Rs. 1104.71 Ps. which he had recovered from various agriculturists in the village, who had taken Tagai loans from the Government. The modus operandi allegedly followed by him was that he recovered the instalments of Tagai loans from those various persons and even gave them receipts for the said recovery, but did not credit the amount in the Government Treasury. It is not clear from records as to how it was that the misappropriation was not noticed earlier, but the fact remains that so long as he was on that post and even some time thereafter, the so-called misappropriation was not noticed by the department. The accused was subsequently transferred from that village and his successor made demands from the agriculturists in question. Those agriculturists showed their receipts and the prosecution case is that it is only thereupon that the misappropriation committed by the accused came to the knowledge of the new incumbent or the office of the Agriculture Assistant. The exact nature of realisation is somewhat shrouded in mystery. The fact, however, remains that on 13-10-1975 a notice was given by the Block Development Officer, Amalner to the accused to remain present in his office on or before 20th November, 1975. The notice is styled as a 'show-cause notice'. But the notice itself does not refer to the alleged misappropriation or defalcation at all. It only calls upon the accused to remain present in the office for the purpose of certain clarifications. The accused remained present in the office on that day when he was called upon to deposit the entire amount of Rs. 1104.71 ps. which he had received from the various agriculturists by way of recovery of Tagai loans. On 8th December, 1975 an order was passed against him for his suspension. However, the petitioner deposited the entire amount of Rs. 1104.71 ps. in the Government Treasury on 12-12-1975. He even deposited the amount of interest on that sum, namely, Rs. 734.71 ps.

3. Inspite of these deposits, however, a criminal prosecution was instituted against him by the Government and a charge-sheet was ultimately filed against him on 3rd August, 1979 for having committed the offence of criminal breach of trust by misappropriation of the said amount of Rs. 1104.71 ps. and that was how the accused faced the trial in the trial Court of offence under section 409 Indian Penal Code. A charge was duly framed in that behalf by the trial Court.

4. The accused denied having committed any offence. His contention was that he passed those receipts in favour of the agriculturists in question, he had, in

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