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2012 DIGILAW 484 (RAJ)

Banwari Lal. v. State of Rajasthan

2012-02-21

SANDEEP MEHTA

body2012
JUDGMENT 1. - The present misc. petition has been filed by the petitioner challenging the order dated 23.6.2008 passed by learned Additional Sessions Judge No. 2, Sri Ganganagar Camp at Suratgarh in Criminal Revision No. 18/2007 whereby he has partly allowed the revision petition setting aside the order dated 25.4.2007 passed by learned Judicial Magistrate First Class No.1, Sri Ganganagar in Criminal Case No. 326/2000 so far as direction to frame charges against the petitioner for the offences under Sections 467 and 468 I.P.C. were concerned and maintaining the order whereby direction to frame charge under Section 409 I.P.C. was made. 2. Succinctly stated the facts of the case necessary for the disposal of the case are that one Pahalwan Singh filed an F.I.R. alleging inter alia that he has moved an application for getting loan from Sri Ganganagar Shetriya Gramin Bank which was sanctioned on 15.12.1994. He further alleged that he handed over the loan amount of Rs. 40,000/- to Banwari Lal - bank manager (petitioner) for depositing the same in the bank on 11.1.1996 but the petitioner did not deposit the said amount. Thus, it was alleged that the petitioner committed offence of cheating as well as forgery. On the aforesaid complaint, FIR was registered and investigation commenced. During the course of investigation, the police came to the conclusion that though belatedly but on 8.2.1996, the petitioner deposited the amount under his own signatures and accordingly, the police found that the belated complaint filed by the complainant was mala fide and that since the bank started demanded money from the complainant in different heads, the FIR was lodged. The fact of deposit of the amount in the bank more than two years prior to the filing of the complaint was not disputed. The complainant was given a notice and on a notice being given, he filed a protest petition whereupon the learned Magistrate took cognizance against the petitioner. The petitioner appeared and thereafter at the stage of framing of charges, the Magistrate by order dated 25.4.2007 directed framing of charges under Sections 409, 467 and 468 IPC. The complainant was given a notice and on a notice being given, he filed a protest petition whereupon the learned Magistrate took cognizance against the petitioner. The petitioner appeared and thereafter at the stage of framing of charges, the Magistrate by order dated 25.4.2007 directed framing of charges under Sections 409, 467 and 468 IPC. The petitioner challenged the said order by way of revision and the revisional court vide order dated 23.6.2008 came to a finding that ex-facie offences under Sections 467 and 468 IPC were not made out against the petitioner but because of the fact that the petitioner retained the amount of the complainant for a period of 27 days, the charge under Section 409 IPC was sustained. 3. Learned counsel for the petitioner while placing reliance on the judgment of the Hon'ble Apex Court in the case of Narendra Pratap Narain Singh and another v. State of U.P. reported in 1991 Cri.L.J. 1816 and the judgment of this Court in the case of Rajendra Prasad v. State of Rajasthan reported in 2004(1) Cr.L.R. (Raj.) 813 submits that temporary retention of money without any dishonest intention cannot make the accused liable for offence under Section 409 IPC. The money deposited by the complainant was appropriated by the petitioner in different loan accounts of the complainant for the purpose of securing the interest of the bank and thus, it cannot be said that the petitioner bore any dishonest intention. Resultantly, it is submitted that the controversy involved in the present case being squarely covered by the cases of Narendra Pratap Narain Singh (supra) and Rajendra Singh (supra), the charge framed against the petitioner under Section 409 IPC also cannot be sustained. 4. Learned P.P. has opposed the contentions of counsel for the petitioner and submitted that the present misc. petition is nothing but a second revision in the garb of a petition under Section 482 Cr.P.C. Thus, he submits that no interference is called for by this Court. 5. I have carefully gone through the arguments raised at the bar and have perused the orders impugned. 6. Undisputedly, the petitioner in this case has deposited the amount allegedly handed over by the complainant to him in the loan account of the complainant, two years and three months prior to the filing of the complaint. 5. I have carefully gone through the arguments raised at the bar and have perused the orders impugned. 6. Undisputedly, the petitioner in this case has deposited the amount allegedly handed over by the complainant to him in the loan account of the complainant, two years and three months prior to the filing of the complaint. There is no material on the record of the case by which it can be inferred that the petitioner carried a dishonest intention to misuse the money or that he misappropriated the same for his own use. The Hon'ble Apex Court in the case of Narendra Pratap Narain Singh (supra) dealing with an almost identical situation held as below:- "In the present case, the entrustment or dominion over the property of the seed stores was not in dispute indeed there could be none. The essential questions that follow are; first, whether the first appellant had dishonestly misappropriated or converted the property entrusted to him to his own use or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged; secondly whether the second appellant was also a privy to the alleged misappropriation; thirdly whether both the appellants forged false bills and cash receipts and then fraudulently or dishonestly used such documents as genuine; and fourthly whether the appellants in their capacity of public servants dishonestly misappropriated or converted that property to their own use or will fully suffered the Department by doing any act in violation of the directions, thereby making themselves liable to be punished for the aggravated form of criminal breach of trust under Section 409 IPC. The expression `dishonestly' is defined under Section 24 of the Indian Penal Code. It is true that the series of circulars issued by the Directorate of Agriculture have laid down certain directions prescribing the mode in which such trust was to be discharged." 7. The expression `dishonestly' is defined under Section 24 of the Indian Penal Code. It is true that the series of circulars issued by the Directorate of Agriculture have laid down certain directions prescribing the mode in which such trust was to be discharged." 7. Thus, this Court is also of the opinion that ex facie looking to the allegations of the complaint and the material collected by the investigating agency in support of the final report, the essential ingredients of Section 409 I.P.C. regarding the accused having dishonestly misappropriated or converted the property entrusted to him to his own use or dishonestly used or disposed of that property in violation of any direction of law, are not made out against the accused. 8. In view of the above, the charge under Section 409 IPC cannot be sustained. 9. Resultantly, the present misc. petition is allowed and the charge under Section 409 IPC is also quashed. 10. Stay petition also stands disposed of. *******