JUDGMENT

S.C. Malte, J. - The petitioner seeks quashing of the FIR on the ground that since the decree for money had been passed in the arbitration proceedings, criminal prosecution would not be now tenable on the allegations of embezzlement of the same amount which was the subject matter of the arbitration proceedings. It was submitted that the proceedings in this case have been initiated on the basis of report dated 10.2.1988 in respect of occurrence dated 9.12.1987, and since then no progress had taken place in the matter. On this premises it is contended that keeping in view the spirit of Article 21 of the Constitution, the FIR deserves to be quashed.

2. In support of the argument, the counsel for the petitioner invited my attention to a single Bench ruling of this Court in the case of Harbhagwan Dass v. State of Punjab, 1983(2) RCR 156. In that case his Lordship was of the view that since there was an award in respect of the amount in question, the matter has assumed the characteristics of civil nature and the taking of the criminal proceedings against the defaulter regarding the same matter was abuse of process of the Court. In continuation of the same observations, his Lordship also observed that the jurisdiction of the criminal Court to initiate such proceedings, however, cannot be disputed. Thus, the tenor of the judgment indicated that in case where the matter assumes civil nature, criminal proceedings need not be resorted to.

3. It may be noted that thereafter in another case Vishvanath v. State of J.K., AIR 1983 Supreme Court 174, Their Lordships of the Supreme Court were considering a similar case in which the government money had been embezzled by the accused by putting that amount to his personal use. The said amount had, however, been refunded on discovery of the embezzlement. In the set of these facts, Their Lordships expressed the view that since the act of the accused was in complete violation of the direction of law, he has failed to send the amount to the treasury, and with criminal intention had not made entry of the money in the register and thus misappropriated the amount. He thereby committed criminal breach of trust and was liable for prosecution. In other words, the view expressed by the Supreme Court was clear enough to indicate that despite making good the refund of the amount in question, the liability under the Penal Code deserves to be considered by applying the ingredients of the Section. Obviously, therefore, mere passing of an award by the arbitration Court under the Co-operative Societies Act, does not clothe the accused with an immunity from the Criminal prosecution by putting forth the argument that the matter was of civil nature. Where particular act amounted to only civil remedy and did not spell out any ingredient of criminal offence is a matter of fact to be considered and decided in a set of facts of each case. It cannot be a strait-jacket formula that whenever there is a civil decree that criminal prosecution was unjustified. It may be noted that in the aforesaid case of Harbhagwan Dass (supra) his Lordship has not disputed the jurisdiction of the criminal Court to initiate the proceedings. However, on facts His Lordship seems to have arrived at a conclusion that the passing of the decree changed the character of the alleged use of the money by the accused. The case of Harbhagwan Dass (supra) was followed by a single Bench of this Court in a case of Gurcharan v. State of Punjab, 1989(2) CLR 35. In that case his Lordship referred to the case of Vishvanath v. State of J&K (supra), but preferred to follow the observations by his Lordship in the case of Harbhagwan Dass (supra). I, however, feel bound by the principle laid down by his Lordship of the Supreme Court in case of Vishvanath (supra).

4. In this case it may be noted that the arbitration award was for a sum of Rs. 1,41,709.31. The payment notice Annexure P-3 shows that on 6.10.1993 the amount swelled to Rs. 1,83,942. It is further