M. Sharma, J.
1. This Criminal Revision has been preferred by the accused petitioner against the orders dated 10-3-1993 and 23-3-1993 passed by the Additional Chief Judicial Magistrate, Kamrup, Gauhati in Case No. 35 l of 1991, recording the acceptance of pardon by the co-accused No. 3, Girish Chandra Talukdar, and committing the case to the Court of the Chief Judicial Magistrate.
2. The Respondent as complainant filed a complaint against the petitioner and two others alleging commission of offence Under Section 403/406/408/417/418/420/425/477A/511 read with Section 120B, I.P.C. Period of offence was according to the complainant, between 16-7-1984 to 30-4-1988 and that during this period, the accused persons, in persunace of a conspiracy, had committed misappropriation of complainant Company's fund to the tune of Rs. 13,04,014'46 paise. Cognisance was taken Under Section 406/420/477, I.P.C. and process was issued. During the course of the proceeding accused No. 3-G. Thakuria filed a petition praying for pardon. Accused No. 1, the petitioner filed objection on the grounds, the petition Under Section 306, Cr. P.C. was not maintainable as the entire prosecution case is based on documentary evidence and that facts and circumstances of the case do not justify that without the evidence of the accused the prosecution is unable to prove the case and that in view of the inability of the prosecution it could have prayed the Court for the evidence of the accomplice. After hearing the parties the Court below passed the order dated 10-3-1993 tendering pardon to the accused No. 3 and by a subsequent petition purportedly accepted the tender of pardon and by order dated 23-3-1993, the Court, after recording the fact and after recording the deposition of the Accused No. 3 committed the case to the learned Chief Judicial Magistrate for trial. After some adjournment hearing had been fixed on 22-7-1993. The petitioner accepted the same stand against the order as was taken in the Court below. The petitioner was the Chief Accountant of the Company and accused Nos. 2 and 3 were the Cashiers, that the petitioner was not holding the exclusive and overall responsibility in the matters relating to maintenance of all books of account and transaction etc. of the Company; that other Officers and Directors were responsible for supervision of such matters; that the accounts of the Company including the accounts for the period in question, were regularly subjected to internal audit as well as statutory audit and therefore, it contended that alleged misappropriation of Company's fund, discovered by internal audit was baseless. Further contentions of the petitioner, in this revision petition is that the allegations made in the complaint do not constitute offence Under Section 406/420/477, I.P.C. and no case of misappropriation can be make out from the complaint as well as from the deposition of the complainant; that from the facts and circumstances as revealed in the complaint one can made out a case for Civil dispute and that in fact the company has instituted a case being Money suit No. 178/91 in the Court of the Assistant District Judge No. 1, at Gauhati, the subject matter and cause of action of which substantially and directly the same in both the proceeding as well as in the Civil Suit. Petitioner has prayed for quashing the said Criminal Case on the above grounds as the proceeding is an abuse of process of the Court.
3. On perusal of the complaint petition as well as the statement of the complainant the allegation of misappropriation against the accused-petitioner, has been imputed making them responsible for an amount of Rs. 13,04,014'46 paise as in his capacity as Chief Accountant had the supervisory authority for maintenance of all the books of accounts of the Company and was resonsible for proper and accurate maintenance of each and every Books of Accounts of the Company and was in overall charge of proper and accurate maintenance of accounts and transactions and that no officer nor Directors has such functions and that the accused petitioner had the overall, and excessive responsibility regarding entire accounts of the complainant Company. That during the period in question i.e. 16-7-1984. to 30-4-1988. The accused No. 1 was the Chief Accountant of the Complainant Company. That from July 1989 accused No. 1 ceased to attend the Office of the complainant company without showing any reason of his non attendance, and he was called upon repeatedly by letters to attend office and on his failure to comply with the requests the complainant Company issued show cause notice. As no reply had come ultimately accused petitioner was terminated with immediate effect. Accused Nos. 2 and 3 were Cashiers who were under the control of the Accused petitioner and were serving during the period in question.
4. The complaint petition contains in detail the facts and figures of the each head of accounts and the detail amount of misappropriation in each head totalling an amount of Rs. 13,04,014'46 paise (Rupees thirteen lacs four thousand forteen and paise forty six). Apparently the amount of misappropriation is a matter to be proved on the basis of the doucment, such as account Books, Bank transaction documents etc. It is also not disputable that the disputable amount of money, alleged to be misappropriated by the accused persons can be recoverable by filing suit in appropriate forum. But from the facts and circumstances and as disclosed in the complaint make out a prima facie case for trial and availability of relief under Civil law cannot diminish the nature of the Criminal liability involvement or negligence of the persons as officers/employees are responsible for huge financial loss of the Company. Civil remedy by filing claim suit for recovery of money is always available and punishment for loss of money of a company for Criminal negligence, conspiracy and involvement of its employees provided under the Penal Code where those aspects are offence and triable under the appropriate sections of the I.P.C. The Apex Court in the case of (Pratibha Rani v. Suraj Kumar (1985) 2 SCC 370 : (1985 Cri LJ 817), while considering this question held that -
'The view that as remedy under civil law was available, Section 406, I.P.C. was inapplicable cannot be accepted. A criminal prosecution would not be completely barred merely because a Civil remedy is available. Criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents, etc. If the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would not bar prosecution under Section 406, I.P.C. and would not render the ingredients of Section 405, I.P.C. nugatory or abortive.'
5. The plea taken in this petition by the accused-petitioner is his defence and the allegations and defence of the respective parties can be proved in the trial only which involves oral as well as documentary evidence and for which trial by legal evidence is necessary.
5A. In view of my above discussion I find no material to quash the complaint case and the Court below acted within his jurisdiction by issuing process and proceeding with the case.
6. The next ground for consideration is whether the Court below acted within his jurisdiction granted pardon Under Section 306, Cr. P.C. in spite of objection of the petitioner. It is contended by the petitioner that Section 306, I.P.C. does not contemplate an application by any of the accused for granting pardon and that initiative for tendering of pardon should have come from the side of the prosecution; in view of the inability of the prosecution to prove the case for lack of evidence and in that case no pardon could be lawfully tendered on the prayer of the accused himself and that from the nature and circumstances of the ease, granting of pardon was not warranted.
7. Section 306, Cr. P.C. provides for grant of pardon with the object to see that grave offence do not go unpunished and for this purpose, the legislature has confined its operation to cases mentioned in this section. This section confers discretionary power with the Courts and in that view of the matter, as held in a series of cases, Courts are required to exercise jurisdiction under this Section in exceptional circumstances only.
8. The case of the complainant, as discussed above, is allegation of misappropriation of the complainant company's fund and the petitioner, the Chief Accountant of the Company was made accused with two cashiers, i.e. accused Nos. 2 and 3 who alleged to be under the control and supervision of the accused No. 1. The petitioner accused No. 1, as alleged, as the Chief Accountant, was entrusted with the entire accounts matters of the Company and in view of his overall and exclusive responsibility any otherofficer of Director of the Company has no duty to look into such matter, that accused Nos. 2 and 3, Cashiers were responsible for maintenance of the cash books under instruction and direct supervision of the petitioner, upon appropriate verification of correctness and genuineness of the debit voucher, cheques and other documents on the basis of which the cash books and petty cash book are to be prepared.
9. As it emerges from the complainant, the Cashiers and Chief Accountant have physical and joint dominion over the cash which is kept in steel drawer with lock and key and without orders from the Chief Accountant, the Cashiers do not have power to take out cash therefrom. This indicates that a big number of documents for proof of the offence is required to be proved in the trial. As stated above all the petitioners alleged to be directly and indirectly involved in or privy to the offences.
10. The accused No. 3, Girin Thakuria, during the pendency of the proceeding before the Additional Chief Judicial Magistrate filed the application Under Section 306, Cr. P.C. revealing his desire to disclose those facts in favour of the complainant, if he was tendered pardon and made a witness in the case. He admitted, in his petition that as he was working as a Cashier in the Complainant Company during the period in question he had to perform the function of the Company, as Cashier, under the guidance and supervision of the Accused No. 1 (Petitioner) and was entrusted with issue of receipt and transmit the collection made on behalf of the company to the Bank under advice of the Accused No. 1. The Court below entertained the petitions holding that there was no legal bar in applying the provisions of Section 306, Cr. P.C. in view of the principle that offenders should not be escaped from punishment in the above cases for lack of evidence. The allegations of the company, primafacies, make out a case against the acused No. 3 in which he directly concerned and in privy to the alleged offence. The objection of the petitioner is not sustainable on the ground that the accused No. 3 did not make confession implicating the other accused person. In a series of cases the accepted legal position is that the the guiding principle for tender of pardon to an accomplice is to prevent the escape of offenders from punishment in grave cases for lack of evidence and that all that Section 306(1), Cr. P.C. requires that pardon may be tendered to any person 'suppose to have been directly or indirectly concerned in or privy to an Offence.' If these requirements are fulfilled, in my view, there cannot be any ground for not granting pardon to an accomplice. This power under Section 306, Cr. P.C. is a discretionary power. The jurisdiction of the Revisional Court is to see whether there is any excesss of jurisdiction in exercising this discretionary power or there is any procedural and material irregularity in the order or orders, illegal and infirm.
11. The person to whom pardon is granted need not be an accomplice. In the case of AIR 1968 SC 594 : (1968 Cri LJ 550), (Lt. Commander Paseal Fernandes v. State of Maharasthra). The apex Court held that even at the request of the accused, pardon may be tendered, that is not necessary that the public Prosecutor must move the prayer for granting the pardon. In the case of AIR 1963 SC 1850: (1963 (2) Cri LJ 671). (The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao), it was further held by the Apex Court that the validity of the pardon granted under this section has to be determined with reference to the offence alleged against the approver alone and nor with reference to offences of which his co-accused was ultimately convicted.
In that view of the matter the grounds taken in this petition challenging the power and jurisdiction of the Court below are not sustainable. Revision Petition dismissed.