JUDGMENT :

1. By consent of the parties, the revision application is heard finally.

2. The accused takes exception to the judgment and order of conviction of the learned Chief Judicial Magistrate, Ahmednagar, in Regular Criminal Case No.153 of 1996, dated 19.08.1997, for the offence punishable under Section 409 of the Indian Penal Code (in short, “I.P.C.”) and confirmed by the learned Additional Sessions Judge, Ahmednagar, by its judgment and order dated 10.08.2004 in Appeal No.62 of 1997.

3. The accused was a Tenancy Awal Karkoon in the Tahsil Office, Newasa, in 1990-91. There was heavy rainfall in that area. Hence, the Government had declared compensation for the rain-affected people. The compensation was to be disbursed at the war level. Therefore, the Collector, Ahmednagar, assigned the duties to the Talathis, Aawal karkoons and other staff. The accused was one of them discharging his official duty and arranging to pay compensation to the affected persons.

4. The allegations against the accused describe that he was to direct the Accountant to pay the money to the respective Talathis and get the account from the Talathis about the compensation money paid and not disbursed to the beneficiaries. The unpaid money was to be returned to him. The Talathis returned the balance amount to him. However, instead of depositing the amount of Rs.70,659/- with the Treasury, he misappropriated the amount and committed an offence punishable under Section 409 of the Indian Penal Code.

5. When the misappropriation of the compensation money was discovered, the Collector, Ahmednagar, vide its letter dated 03.05.1995, directed the Tahsildar to prosecute the accused. Accordingly, the first information report was registered against the accused. He was charged, tried and convicted.

6. Against two consecutive judgments of conviction, he has raised various legal grounds not considered by the learned trial Court and the Subordinate Appellate Court.

7. The learned counsel for the accused has vehemently argued that there was no sanction to prosecute the accused under Section 197 of the Code of Criminal Procedure, 1973 (“in short, “Cr.P.C.”). Therefore, the entire trial vitiates. He also argued that most of the witnesses are Talathis, who have been examined, were not inquired into by the Investigating Officer and their statements were not recorded under Section 161 of the Cr.P.C. Both the learned Courts had committed a grave error of Law in relying upon the statements of the witnesses recorded before the Accounts Officer who had conducted the departmental inquiry. Similarly, the statement of the Accounts Officer, P.W.No.26 Damodar Maroti Adsule, was also not recorded under Section 161 of the Cr.P.C. Therefore, the accused did not have information and material about these witnesses in the form of their statements. Therefore, their statements are nothing but a piece of paper on record. He has also argued that the accused was to direct the Accountant to pay the money to the Talathi for disbursement. Therefore, the unpaid money was to be deposited with the Accountant, and the Accountant was to take the entries in the account book. In a few cases, the unpaid compensation amount returned to him by the Talathis was again disbursed to the beneficiaries as they were unavailable when the Talathis went to pay them compensation. He raised a question that the papers of the departmental enquiry cannot be the evidence in the trial lodged under the Code of Criminal Procedure.

8. It is a prerogative of the Investigating Officer to make an inquiry from the witness acquainted with the facts of the crime, and if he feels appropriate, he reduces their statements in writing under Section 161 of the Cr.P.C. He would also argue that the Law is well established that the accused must be informed in advance of what is the material against him and what he has to face in the trial. Since the statements of most of the witnesses were not recorded under Section 161 of the Cr.P.C. by the Invest