Mr.Manoj Kumar Sah Before the case was taken up for hearing, on the point of its merit, it was pointed out by the learned counsel appearing for the petitioners that the petitioner no.1 has died which fact has been stated in the supplementary affidavit filed on 15th July, 2009 whereby death certificate of the petitioner no.1 has been annexed.

2. In view of the facts as stated above, let the name of petitioner no.1 be deleted from the memo of petition.

3. Heard learned counsel appearing for the parties.

4. This application has been filed for quashing of the entire criminal proceeding of Complaint Case no.47 of 1994 including the order dated 28.2.2003 whereby and whereunder the then learned Judicial Magistrate, 1st class, Ranchi having found prima facie case being made out against the petitioners under Section 406/120B of the Indian penal Code summoned them to face trial.

5. The facts giving rise to this application are that the complainant – opposite party no.2, Md.Badrudduja was the General Secretary of Milli Talimi Mission, Ranchi upto the year 1980.The said Society got Millat Academy, established at Ranchi. In order to develop the school and to help out the poor students of the said school when donation was asked for from Rabta Alam Islami, Saudi Arabia, it was given to Opposite party no.2, who was the then General Secretary of the Society received huge grant in dollars from the authority of the embassy of kingdom of Saudi Arabia. The complainant instead of depositing it with the Society or the Academy defalcated it, for which Kotwali P.S case no.78 of 1984 was lodged. On investigation, the allegation was found to be true and hence, charge sheet was submitted. When opposite party no.2 was put to trial, he was convicted under Section 406 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years. In the said case, the petitioner no.1 (since died during the pendency of this petition) and also petitioner nos. 2 and 3 were the witnesses. However, the petitioner no.4 though was witness but was not examined during evidence and that the petitioner no.5 is the Principal of the Academy.

6. Further it appears that apart from the criminal case, Money Suit has also been filed for recovery of the amount which opposite party no.2 had misappropriated. On being found guilty, he was expelled from the membership of the Mission in April, 1984 and was removed from the service of the H.E.C.

7. It further appears that the complainant – opposite party no.2 lodged a case in the year 1989 alleging therein that the petitioners have misappropriated the amount of the Society. The said case was registered as Kotwai P.S.case no.798 of 1989.

8. The police having found the allegation to be false, submitted final form, upon which protest petition was filed which also got dismissed. Thereafter a Complaint case bearing no.47 of 1994 was lodged on the same allegations which were there in the first information report wherein it has been alleged that internal audit report of the year 1983 of the Society discloses that payments of Rs.2.5 lacs were shown but it were without receipts and that amounts collected from the students were not accounted for and that out of Rs.14,08,971/-collected from the students a sum of Rs.1,87,529 was not deposited. Like that several other irregularities were found. Thus, it has been alleged that internal audit of the year 1983 does indicate that a sum of Rs.4,93,142.27 has been embezzled/misappropriated by the petitioners.

9. Further it was stated that internal audit of the year 1984 also did disclose about the embezzlement/misappropriation of the amount and in this way, it was alleged that the accused persons have misappropriated the amount to the tune of Rs.7,33,000/-On such complaint, cognizance of the offence was taken which is under challenge.

10. Mr. Sohail Anwar, learned Sr. counsel appearing for the petitioners submitted that Millat Mission is a registered society and as per the byelaw