The judgment establishes the limited applicability of administrative instructions, the discretion of the Public Prosecutor, and the requirement of sufficient grounds to proceed against the accused in framing the charge.

This is an application filed under section 482 of the Criminal Procedure Code, seeking discharge in criminal cases (R.C.C. No.94/1995. R.C.C. No.95/1995 and R.C.C. No.96/1995) pending on file ofleamed Chief Judicial Magistrate, Ahmednagar.

2. The applicant was attached to Gram Panchayat at village Shevgaon as a Gram Sevak. An Audit Inspection was conducted for period between 1983-84 to 1986-87. The Auditor noticed irregularities committed by the applicant in maintaining the office record. It was observed by the Auditor that during the relevant period, the applicant committed criminal misappropriation of funds to the tune of Rs.16,435.55 ps., in collusion with other office bearers of the village Panchayat. He was served with a notice dated 13-03-1989 issued by the Block Development Officer. He was called upon to deposit the amount allegedly misappropriated and unaccounted. He deposited the said amount on 15-04-1989. The Village Panchayat resolved, on 9th May, 1989, that the t irregularities found in the accounting may be deemed as regularized and the lapses were condoned. The applicant was suspended from service in contemplation of a departmental inquiry. Thereafter on 05-05-1990, the F.I.R. was lodged against him in respect of the temporary misappropriation. The Police charge-sheeted him after certain investigation.

3. The applicant submitted application for discharge under section 239 of the Criminal Procedure Code on ground that the amounts of alleged misappropriation have been deposited by him immediately after service of the demand notice issued by the Block Development Officer. He sought benefit of a Government Circular dated 21st June, 1984.

By the said Government Circular, instructions have been given to the concerned departments that the employee may not be subjected to criminal prosecution if the amount is reproduced within period of one (1) month, after service of demand notice.

4. By order dated 19-11-1998, the learned Chief Judicial Magistrate rejected his applications. The learned Chief Judicial Magistrate came to conclusion that the Government Circular would be applicable in respect of small amounts, but where amount is more, then it would not be attracted. Feeling aggrieved, the applicant has filed present application.

5. Heard learned advocate for the applicant and learned A.P.P.

6. Mrs. Jadhav, would submit that the Village Panchayat resolved to condone the lapses. The Resolution (Exh-C) purports to show that since the amount is deposited by the applicant, the Village Panchayat resolved to waive the objections appearing in the Audit Report because the financial loss was recouped. Mrs. Jadhav would submit that the Government Resolution gives instructions to deal with such cases and some other employees have been exonerated, but the applicant is prosecuted. It is argued that policy decision of the Government is not to initiate prosecution in such kind of misappropriation if the Government servant would repay the amount within the specified time. The learned advocate further would submit that the appellant ought to have been discharged in view of the fact that his prosecution was uncalled for and moreover, the Village Panchayat did not suffered any loss. Per contra, learned A.P.P. supports the impugned order.

7. Before I proceed to consider merits of the matter, it may be mentioned here that the charge-sheet of Departmental Enquiry was served on the applicant. The first charge was that he committed misappropriation of Rs.16,435.51 ps. and also of Rs.I645.43 Rs. Another charges was to the effect that he was responsible for suspected misappropriation to the tune of Rs.6,60,758.02 ps. It appears, no doubt, that the applicant deposited various amounts. The applicant gave an application dated 15-04-1989 wherein he narrated that an amount of Rs.9010.30 ps. was deposited by him vide receipts No.1001 to 1013. The amount is not prima facie deposited to the full extent.

8. The applicant has retired from the service. He a