THE STATE OF MAHversusSHAIKH NASIR SHAIKH SAHEBLAL

2026:BHC-AUG:3078-DB


                                    1               Judgment in Cri. Appeal No.870-2004

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO.870 OF 2004


            The State of Maharashtra                     ….      APPELLANT
                                                                 (Complainant)

                  VERSUS

            Shaikh Nasir Shaikh Saheblal,
            Age : 45 years, Occu.: Service,
            R/o.: Shendi, Tq. Ahmednagar,
            District : Ahmednagar                        ….     RESPONDENT
                                                              (Original Accused)

                                             ….
            Mr. N. S. Tekale, APP for the Appellant-State
            Mr. S. S. Wagh h/f Mr. S. T. Shelke, Advocate for the Respondent
                                             ….

                                  CORAM : SANDIPKUMAR C. MORE AND
                                          Y. G. KHOBRAGADE, JJ.


                                  RESERVED ON : 27/11/2025
                                  PRONOUNCED ON : 23/01/2026.


            JUDGMENT : (Per : Sandipkumar C. More, J.) :


            1.         The appellant–State has challenged the acquittal of the

            present respondent–accused in Criminal Appeal No.22 of 2002, by

            judgment and order dated 25/10/2004, whereby the learned

            Additional Sessions Judge, Ahmednagar (hereinafter referred to as
                        2               Judgment in Cri. Appeal No.870-2004

“the learned appellate court”) acquitted the respondent of the

offence punishable under Section 409 of the Indian Penal Code.



2.         According to the prosecution case, the informant—

Auditor Eknath Baburao Shirke was auditing the accounts of

Malhar Nimbodi Vividh Karyakari Seva Sahakari Society Limited

for the period from 01/07/1987 to 30/06/1992. During the

aforesaid period, the respondent–accused was working as the

Secretary of the said society. When the Auditor called upon the

respondent–accused to produce cash amounting to Rs.88,030.70

for verification, the respondent failed to produce the same.

Thereafter, the Auditor lodged a complaint dated 02/08/1994

against the respondent, alleging misappropriation of the said

amount. Consequently, a crime came to be registered against the

respondent for the offence punishable under Section 409 of the

Indian Penal Code.

     The learned trial Judge, after conducting the trial, convicted

the respondent–accused for the offence punishable under Section

409 of the Indian Penal Code, observing that since the accused had

submitted an application for discharge after repaying the aforesaid

amount along with interest, aggregating to Rs. 96,057/-, during
                        3                Judgment in Cri. Appeal No.870-2004

the period from 03/05/1993 to 04/02/1994, he had thereby

admitted his guilt.



3.         The learned A.P.P. submitted that the deposit of the

allegedly misappropriated amount by the respondent–accused

clearly indicates his guilt and therefore, the learned trial court

rightly convicted him. However, according to the learned A.P.P., the

appellate court, i.e. the learned Additional Sessions Judge,

Ahmednagar, erroneously drew an inference that mere filing of a

discharge application after depositing the aforesaid amount cannot

be treated as an admission of guilt by the respondent–accused.



4.         On the contrary, the learned counsel Mr. S. S. Wagh,

holding for Mr. S. T. Shelke, appearing for the respondent–accused

supported the impugned judgment of the appellate court and

submitted that the appellate court, by rightly placing reliance on

the Government policies referred to in the judgment of this Court

in the case of Dagdu vs. State of Maharashtra, 1982 Cri. L. J.

1866, has held that prosecution against an accused may be

withdrawn when restitution for the alleged criminal act has been

made. The learned counsel for the respondent–accused further

pointed out that the accused had only failed to produce cash for
                         4                Judgment in Cri. Appeal No.870-2004

verification during the course of audit and that prior to the lodging

of the complaint by the Auditor on 02/08/1994, the alleged

misappropriated amount had already been deposited by the

respondent–accused along with interest between 03/05/1993 and

04/02/1994.     In view of the above, it was contended that the

learned appellate court rightly appreciated the facts of the case and

acquitted the respondent–accused in the light of the observations

made in case of Dagdu (supra).



5.         Heard rival submissions and perused the impugned

judgment along with the paper book and the record and

proceedings of the original case.



6.         Admittedly, the respondent–accused was the Secretary

of the concerned society during the relevant audit period. It is also

not in dispute that at the time of audit for the aforesaid period, the

respondent failed to produce cash amounting to Rs.88,030.70 for

verification. However, it is a matter of record that the respondent–

accused thereafter, during the period from 03/05/1993 to

04/02/1994, deposited the aforesaid amount along with interest,

thereby paying a total sum of Rs.96,057/-. It is further not in

dispute that after payment of the said amount, the respondent–
                         5               Judgment in Cri. Appeal No.870-2004

accused had, in fact, filed a discharge application at Exhibit-50,

stating that he had deposited the amount.



7.         It is significant to note that the learned trial court

appears to have taken the view that by depositing the amount, the

accused had, in fact, admitted his guilt, thereby confirming the act

of misappropriation. However, upon perusal of the judgment of the

learned appellate Judge, it is evident that the aforesaid observation

of the learned trial court has been overturned. The learned

appellate Judge observed that in the discharge application at

Exhibit-50, the respondent–accused had merely stated that he had

deposited the amount along with interest and had nowhere

admitted that the amount deposited was towards misappropriation.

It was further observed that the learned trial court had, therefore,

misinterpreted the filing of the discharge application as an

admission of guilt by the accused.



8.         Further, it is extremely important to note that the

aforesaid amount was deposited by the accused even prior to the

lodging of the complaint by the Auditor on 02/08/1994.                    The

acquittal recorded by the learned appellate Judge is based on the

observations of this Court in the case of Dagdu (supra), wherein
                            6                  Judgment in Cri. Appeal No.870-2004

Government Resolutions / Circulars were taken into consideration.

As per those circulars, the Government has directed that

prosecution in cases of misappropriation should be withdrawn if

the embezzled amount is deposited. It has further been observed

that such cases can be dealt with departmentally instead of lodging

a criminal complaint. The learned appellate Judge has found that

this principle was correctly applied, as full payment had already

been made by the accused prior to the filing of the complaint.



9.         It further appears that the prosecutor in the aforesaid

appeal had also conceded that, despite filing the discharge

application, the accused had never admitted his guilt. However, it

was argued that the proper course was not acquittal but remand of

the case for a fresh trial. The learned appellate Judge, however,

rejected the prayer for remand and observed that a conviction

cannot be based on misinterpretation of a document and that doing

so would amount to a violation of fundamental rights. Therefore,

the   learned   appellate       Judge   held   that     repayment         by     the

respondent–accused at the pre-complaint stage made all the

difference and consequently, considering the Government policy,

the respondent–accused was entitled to a clear-cut acquittal.
                         7              Judgment in Cri. Appeal No.870-2004

10.          Even after an independent perusal of the material on

record, we concur with the reasoning of the learned appellate

Judge, having taken into consideration all the aforesaid facts. As

such, no interference is called for in the appeal and the same

stands dismissed.




( Y. G. KHOBRAGADE, J. )         ( SANDIPKUMAR C. MORE , J. )


VS Maind/-