Judgment : 1. Petitioner is the accused in Crime No.2218 of 2012 of Kannur Town Police Station. Offence alleged are under Sections 465, 468, 477, 409, 420 and 381 of the IPC. He was arrested on 5.12.2012 and ever since he is in judicial custody. His application for bail was dismissed by the learned Magistrate thrice as evidenced by Annexures A, B and C. Now this petition. 2. The learned Government Pleader would strongly oppose the petition for bail. The learned counsel appearing for the petitioner would submit that though offence under Section 409 is alleged, going by the averments in the complaint basing upon which the case was registered, only an offence under Section 408 IPC is made out and therefore, the petitioner is now entitled to default bail under Section 167(2)(a)(ii) Cr. P.C. From the averments in the complaint it is revealed that the petitioner was an accountant of the defector complainant and he manipulated the accounts and other documents and committed misappropriation in respect of a sum of Rupees seventy five lakhs. Therefore, it is evident that this is a case of misappropriation committed by the servant of the defector complainant. There is no sort of entrustment to the defector complainant as a banker, merchant, factor, broker, attorney or agent so as to attract offence under Section 409 IPC. For a better appreciation of the argument, I find that a reading of Section 408 and 409 IPC would be relevant: 408. Criminal breach of trust by clerk or servant-Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 409. 409. Criminal breach of trust by public servant, or by banker, merchant or agent-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Going by the above provision, it is crystal clear that in a case of misappropriation by an accountant, it would attract only an offence under Section 408 IPC and not under Section 409 IPC. To attract offence under Section 409 IPC, the person entrusted must be to a banker, merchant, factor, broker, attorney or agent. Value of the material entrusted is immaterial. 3. The specific pleading in the complaint would show that there was no sort of entrustment as a banker, merchant, factor, broker, attorney or agent. Whereas the offence alleged was committed by the petitioner in his capacity as an accountant of the defector complainant. Therefore, I find that prima facie materials disclose only offence under Section 408 IPC. In the above circumstance, since the petitioner had been in custody for more than sixty days, I find that he is entitled to default bail under Section 167(2)(a)(ii) Cr. P.C. In the result, this petition is allowed and there would be an order directing the Judicial Magistrate of the First Class-I, Kannur to release the petitioner on bail on executing a bond for Rs.50,000/-(Rupees fifty thousand only) with two solvent sureties each for like amount to his satisfaction on the following conditions: i) The petitioner shall not make any promise, threat or inducement to any person who is likely to be acquainted with the facts of the case. ii) He shall surrender his passport. In the event he does not possess a passport an affidavit to that effect shall be filed. iii) He shall appear in court in response to a process on all positing date.