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 2026:BHC-AUG:3078-DB 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/-