JUDGMENT :

Heard Mr. Krishna Murari, learned counsel for the petitioner and Mr. Ashok Kumar, learned A.P.P. for the opposite party-State.

2. This criminal miscellaneous petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. This petition has been filed for quashing the F.I.R. in connection with Sadar Chatra P.S. Case No.94/2012 (G.R.441/2012) dated 22.05.2012, which was registered under Sections 406/409/120(B) of the Indian Penal Code.

4. The F.I.R. was lodged by one Lalit Ram, Pariyojna Arth Shastri of Zila Gramin Vikash Abhikran Chatra, stating therein that under MGNREGA Projects, the Welfare Point and Prerna Niketan were respectively given by way of advance of Rs.4 Crores and Rs.2 Crores respectively in the year 2008 for execution of the projects. It was further stated by the informant in the F.I.R. that the complaints were made against those two non-Governmental organizations i.e. Welfare Point and Prerna Niketan, an enquiry was conducted which revealed that Welfare Point had done project work of 122 projects out of 184 projects (Clusters), while Prerna Niketan had done project work of 83 projects out of 573 projects, allotted to them. The work performance was examined and it was found that the Welfare Point had shown to have done work for the value of Rs.56.91 Lakhs only while the Enquiry Committee found the work done was only of the value of Rs.34.57 Lakhs done. As such the informant alleged that the Welfare Point has embezzled an amount of Rs.22.34 Lakh only. Similarly, Prerna Niketan has shown to have done the project work for the value of Rs.79.67 Lakh while the Enquiry Committee found that only work of the value of Rs.11.69 Lakh have been performed by Prerna Niketan. Thus, Rs.67.98 Lakhs have been defalcated by Prerna Niketan. It was further stated by the informant that according to the assessment of work done by the Enquiry Committee, as stated above the Welfare Point was sanctioned work of total 184 Cluster under 702 projects. The enquiry report has been submitted of the work of only 414 clusters (project) and the work has been valued after measurement to have been done for the value of Rs.2,26,36,591/-and accordingly found entry by the officials in the measurement book, but the Enquiry Committee assessed the work to have been done only to the value of Rs.1,63,51,469/-. Thus, the enquiry committee concluded that a sum of Rs.62,85,122/-has been defalcated by the Welfare Point.

5. Mr. Krishna Murari, learned counsel for the petitioner submits that no ingredients of Sections are being made out against the petitioner/N.G.O. and in spite of that the F.I.R. has been lodged against the petitioner/N.G.O. He further submits that the work was done in the year 2008 and the F.I.R. was lodged in the year 2012. According to him, the work was executed and only difference amount of 20%-30% came in the measurement. He also submits that the petitioner is the Secretary of the Society in question and the Society is the Corporate body and the said Society is not arrayed as accused and in view of non-arraying of the Society as accused, the F.I.R. itself is bad in law. To buttress this argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Asoke Basak v. State of Maharashtra & Ors., reported in (2010) 10 SCC 660.

6. Paragraphs 21, 22 and 26 of the said judgment are quoted herein below:

“21. It is plain that for constituting an offence of criminal breach of trust, the following ingredients must be satisfied:

(a) a person should have been entrusted with property, or entrusted with dominion over property;

(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to d