ORDER :

L.VICTORIA GOWRI, J.

Preface:

This Criminal Original Petition has been filed seeking to quash the final report laid in C.C.No.1046 of 2022 on the file of the learned Judicial Magistrate No.III, Nagercoil.

2. The petitioner is the sole accused in the said calendar case. The prosecution alleges that while functioning as Panchayat Secretary, the petitioner had misappropriated a total sum of Rs. 1,19,358/- belonging to Pallamthurai Panchayat, in relation to four cheque transactions said to have taken place during the years 2012 and 2013.

3. Invoking the inherent jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner seeks quashment of the charge sheet on the ground that the criminal prosecution is manifestly vexatious, factually unsustainable, and engineered by making the Panchayat Secretary a scapegoat while the elected office bearers, who had actually operated the Panchayat finances, have been excluded from the array of accused.

Case of the prosecution:

4. The prosecution case, in brief, is that the petitioner, in his capacity as Panchayat Secretary, had dishonestly encashed four cheques issued in the name of works to be carried out in the Panchayat and thereafter failed to disburse the amounts for the intended purposes. According to the prosecution, on the first occasion, the petitioner collected a cheque bearing No.376574 dated 29.03.2012 for a sum of Rs.41,549/-, which had been issued by the President and Vice-President of Pallamthurai Panchayat.

5. On the second occasion, the petitioner is said to have withdrawn a sum of Rs.40,104/- through a self cheque bearing No. 376675 dated 31.03.2012, also issued by the President and Vice- President of the Panchayat. On the third occasion, the petitioner is alleged to have collected another cheque bearing No.376598 dated 30.05.2012 for a sum of Rs.26,955/-. On the fourth occasion, the petitioner is said to have collected a cheque bearing No.772869 dated 28.03.2013 for a sum of Rs.10,750/-.

6. The accusation is that after encashing the aforesaid cheques, the petitioner failed to apply the funds for the purposes for which they were sanctioned, namely:

(i) repair of public pipe, tap and gate valve;

(ii) procuring street light materials, bleaching powder and lime powder;

(iii) purchasing street light materials; and

(iv) procuring bleaching powder and lime powder.

7. On the above allegations, a case was registered in Crime No. 457 of 2014 on the file of the first respondent police. Upon completion of investigation, the final report came to be filed and taken on file in C.C.No.1046 of 2022 by the learned Judicial Magistrate No.III, Nagercoil, for offences under Sections 409 and 420 of the Indian Penal Code.

Grounds for quash:

8. The principal contention of the petitioner is that he was only the Panchayat Secretary, namely, the lowest echelon functionary in the village administration, and that the actual control over the Panchayat finances vested with the elected office bearers, namely, the President and the Vice-President.

9. It is the specific case of the petitioner that the cheques in question were not issued by him, but were issued only by the President and the Vice-President after the passing of resolutions in the Panchayat Board meetings. According to the petitioner, his role was confined to presenting such cheques before the concerned bank for collection.

10. The petitioner would further contend that after the amounts were withdrawn, the same were handed over to the President and the Vice-President, who were managing the affairs of the Panchayat and who alone were responsible for the utilisation of the funds.

11. The learned counsel for the petitioner would place heavy reliance on the affidavit filed by the erstwhile President of the Panchayat, namely, Maria Purosh, in W.P.(MD).No.9256 of 2014, wherein it is stated that the cheques were issued by the President and Vice-President, that the accounts had been duly cross-checked, and that there wa