Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 292 (UTT)

Sashibala Rawat v. State of Uttarakhand

2013-05-30

ALOK SINGH

body2013
Judgment Alok Singh, J. Mr. Mangal Singh Chauhan, learned counsel for the petitioner, contends that failure to make payment of the amount as directed by learned District Magistrate would not constitute an offence punishable under Section 409 IPC, as well as, under Section 3/7 Essential Commodities Act. 2. Mr. M.A. Khan, learned AGA for the State/respondent nos. 1 & 2, submits that since in the present petition, only question of law are involved, therefore, petition may be heard and disposed of today itself. With the consent of learned counsel for the parties, present petition is being heard and decided today itself. 3. Perusal of the FIR reveals that at the relevant time, petitioner was working as Supply Inspector; she was charged to the effect that she had made supply of the food grains without following the procedure of the supply; therefore, learned District Magistrate was pleased to pass an order dated 25.03.2013 to the effect that by making irregular supply. Petitioner has caused financial loss to the State to the tune of Rs. 1,83,712.50, therefore, same may be recovered from the present petitioner, the then Supply Inspector. 4. It is further contended in the FIR that petitioner, despite the order passed by District Magistrate, failed to make payment of the penalty, imposed by the District Magistrate in administrative capacity, therefore, FIR may be lodged against the petitioner for the offence punishable under Section 409 IPC read with ¾ of Essential Commodity Act. 5. Criminal Breach of Trust is defined under Section 405 IPC, if Criminal Breach of Trust is committed by a public servant, then, public servant can be convicted under Section 409 IPC. As per the definition of Criminal Breach of Trust, there must be some entrustment and the person to whom entrustment is made, must be guilty of using the same property with dishonest intention. Therefore, mens ria i.e. dishonest intention is sine qua non to invoke Section 405 IPC. 6. As per the contention made in the FIR, petitioner made supply of the food grains without following departmental instructions irregularly. It is nowhere alleged that petitioner made supply of the food grains in violation of any order or law, dishonestly with intention to cause wrongful gain to herself and wrongful loss to the department. 6. As per the contention made in the FIR, petitioner made supply of the food grains without following departmental instructions irregularly. It is nowhere alleged that petitioner made supply of the food grains in violation of any order or law, dishonestly with intention to cause wrongful gain to herself and wrongful loss to the department. The only allegation against the petitioner is that petitioner failed to make payment of the fine imposed by the District Magistrate, therefore, in my considered opinion, offence punishable under Section 409 IPC is not made out against the petitioner. 7. Mr. M.A. Khan, learned AGA for the State, fairly submits that even offence punishable under Section 3/7 Essential Commodities Act is not made out. 8. In the considered opinion of this Court, fine imposed against the petitioner can be recovered, in accordance with law, but for non-payment of the fine imposed by the District Magistrate penal provisions of IPC should not be permitted to be invoked, since, it amounts to abuse of the process of law, therefore, FIR does not sustain in the eyes of law. 9. FIR in question stands quashed. Petition stands allowed, accordingly. CLMA No. 5307 of 2013 also stands disposed of.