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2019 Supreme(Jhk) 92
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Shree Chandrashekhar, J.
Kansari Mandal son of late Abinash Chandra Mandal and Ors. – Petitioners
Versus
The State of Jharkhand and Ors. – Opposite Parties
Cr.M.P No. 1311 of 2015
Decided On : 06-02-2019
For the Petitioner:Mr. A. K. Kashyap, Sr. Advocate, Mr. Satya Prakash Singh, Advocate, Mr. Anurag Kashyap, Advocate
For the Respondent:Mrs. Sadhna Kumar, A.P.P, Mr. R. S. Mazumdar, Sr. Advocate, Mr. Pratik Sen, Advocate
Headnote:(A) Advocates Act, 1961-Sections 6 and 7 read with Rule 46 of Model Rules framed by Jharkhand State Bar Council-Functions of Bar Council-Bar Council may initiate disciplinary proceeding and in certain cases may institute a proceeding in a competent court for misconduct committed by an Advocate which may incur imprisonment-But in no case a Bar Council can assume role of a criminal court. (Paras 16, 17 and 18)
(B) Indian Penal Code, 1860-Sections 406, 420/120-B-Criminal Procedure Code, 1973-Section 482-Criminal breach of trust, cheating and conspiracy-Cognizance of offence-To constitute offence under Section 415 IPC intention to deceive or inducement must be proved at initial stage when a person is said to have been deceived-Discrepancies in accounting may occur for various reasons-Every discrepancy would not lead to an inference that there was misappropriation of fund-Allegation of deception at very inception is lacking-Entire criminal proceeding quashed. (Paras 19, 24, 26,28, 31, 32, 34, 37 and 38)
(C) Criminal Procedure Code, 1973-Section 204-At the stage of Section 204 Cr.P.C, Magistrate cannot make-up his mind thinking of case only with complainant's perspective rather he has to make-up his mind whether this is a case in which proposed accused should face trial-Test is, whether materials on record, if remain uncontroverted, would constitute a prima-facie case for offence as alleged in complaint. (Para 34)
The petitioners have challenged the order dated 16.06.2015 by which cognizance of the offence punishable under section 406, 420/120-B IPC has been taken in C.P. No. 42 of 2015 and summons has been issued to them. They are members of the Dhanbad Bar Association who were elected office-bearers of the Association for 2012-2014.
2. An audit of accounts of the Dhanbad Bar Association was conducted by M/s Anjali Jain & Associates which has submitted a report to the Association on 30.08.2014. The gravamen of the allegations against the petitioners is that the auditors have found misappropriation of Rs.1.25 crores from the funds of the Association. In the report dated 30.08.2014, what the auditors have observed, therefore, has become important. A copy of the audit report has been brought on record by the complainant-O.P No. 2 vide Annexure-C to the counter-affidavit. The relevant extracts of the report are reproduced below:
Auditor’s Report
To,
The Secretary District Bar Association
Dhanbad, Jharkhand
1. We have audited the attached Balance Sheet of District Bar Association Dhanbad, Jharkhand as on 31st, March 2013 and also the Income & Expenditure Account along with the Receipt & Payment Account for the Year ended on that date. These financial statements are the responsibilities of the Association’s Management. Our responsibility is to express an opinion on these financial statements based on our audit.
2. We conducted our audit in accordance with the Auditing Standard generally accepted in India. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit includes examination, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
3. Further to the Annexure-II of the Accounts and our comments mentioned under Annexure-“A” forming part of our Audit Report we report that:-
(i) We could not obtain all the information and explanation, which to the best of our knowledge and belief were necessary for the purpose of our audit.
(ii) In our opinion proper Books of Accounts as required by law have not been kept by the Association so far as appears from our examination of those Books.
(iii) The Balance Sheet, Income & Income & Expenditure Account and Receipt & Payment Account dealt with by this report are in agreement with the figures calculated based on ledger and cash book kept & maintained by the Association.
4. In our opinion and to the best of our information and according to the explanation given to us the said accounts read with Accounting Policy & Notes to Accounts & our observation mentioned under Annexure “A” forming part of our audit report give the information as required by Law in the manner so required but we are unable to express the opinion on true and fair view in conformity with the accounting principles generally accepted in India:
(a) In case of Balance Sheet, of the state of affairs of the Society as on 31st March 2013
(b) In case of Income and Expenditure Account, of the surplus shown for the year ended on that date and
(c) In case of Receipt & Payment Account, of the Receipts & Payments for the year ended on that date.
Ranchi
Dated: The 30th day of August, 2014
For M/s Anjali Jain & Associates
Chartered Accountants
(CA ANJALI JAIN)
Partner
Membership No. 072022
Annexure-A to the Auditor’s Report
“1. Proper Books of Account as required by Bye-Law containing details of income expenditure have not been made at all. 2. No Sub-Committee for proper and prudent functioning of the Bar Association has been made. 3. No Library Register has been made. 4. Proper vouchers have not been kept and maintained by the Association.
5. Fixed Assets Register has
