ORDER : The present petition has been filed by the petitioner/accused No.4 being aggrieved by the order dated 21.08.2018 passed by the LXXVI Additional City Civil and Sessions Judge and Special Judge, Bengaluru (CCH-77) in Spl.C.No.410/2016, whereunder, the application filed under Section 227 of Cr.P.C., was rejected. 2. I have heard the learned counsel for the petitioner/accused No.4 and the learned Standing counsel for the respondent - Lokayuktha. 3. Before considering the submissions made by the learned counsel appearing for the parties, the gist of the case of the prosecution is that, accused Nos.1 to 4 while working in the Institute of Animal Health and Veterinary Biological, Hebbal, Bengaluru, during the period from 27.06.2007 to 20.09.2012 colluded each other and misappropriated a sum of Rs.1 crore belonging to the Institution by violating the provision of Section 56(1) of the Karnataka Animal Health and Fisheries Science University Act and have deposited an amount in the Nationalized Bank, instead of investing Rs.1.33 crores in UTI Mutual Funds, for which, accused No.1 has advised through accused No.2 and approval has also been obtained and thereafter words, Rs.1.33 crores is deposited in UTI Mutual Funds. In doing so, the accused persons have caused loss to the Department to the tune of Rs.84 lakhs and they being the public servants have committed breach of trust and mis-utilized the amount to the extent of Rs.84 lakhs and caused loss to the Institution. It is investigated and charge sheet has already been filed. Thereafter, an application under Section 227 of Cr.P.C., has been filed by the accused persons. The trial Court, after considering the said facts and circumstances, has rejected the said application. Being aggrieved by the same, accused No.4 is before this Court. 4. It is the submission of the learned counsel for the petitioner/accused No.4 that the learned Sessions Judge has erred in failing to see that the petitioner was working as Accounts Superintendent, but actually he was an in-charge Accounts Officer from 05.09.2009 onwards. Being aggrieved by the same, accused No.4 is before this Court. 4. It is the submission of the learned counsel for the petitioner/accused No.4 that the learned Sessions Judge has erred in failing to see that the petitioner was working as Accounts Superintendent, but actually he was an in-charge Accounts Officer from 05.09.2009 onwards. He further submitted that prior to taking charge, accused No.3 has obtained prior approval from accused No.1 who was then working as a Director of IAH & VB and they deposited an amount of Rs.1.33 crores with UTI Mutual Funds and subsequently, the said amount has been matured with UTI and as per the instruction of accused No.4 only put up the file for renewal of the said deposited amount, which was already there with UTI Mutual Funds. It is accused No.1 who has to take further action in the matter and he is the decision making authority. It is accused No.4 only put up the file and accused No.1 has taken the decision to deposit the same with UTI and the amount which was already deposited earlier, the same has been renewed. He further submitted that the trial Court without considering the said facts and circumstances has come to a wrong decision. He further by relying on the guidelines issued by NSDL submitted that as per the scheme information, if any funds is to be invested, under such circumstances, invest the funds in the proportion of 85% in fixed income instruments and 15% in equity and equity related instruments. It is accused No.1 who has to take the said decision. This aspect has not been properly considered and appreciated by the trial Court. He further submitted that Section 13(d) of the Prevention of Corruption Act (for short the ‘Act’) is also not attracted. On these grounds, he prays to allow the petition and to set aside the impugned order. 5. Per contra, the learned Standing counsel for the respondent-Lokayuktha vehemently argued and submitted that, if any person dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, under such circumstances, the provision of Section 13(1)(c) of the Prevention of Corruption Act is attracted. He further submitted that the provisions of Sections 406 and 409 of IPC are different from that of Section 13(1)(c) of the Act. 6. He further relying upon the decision of the Hon’ble Apex Court in the case of Dhaneshwar Narain Saxena Vs. The Delhi Administration - AIR 1962 SC 195 submitted that Section 13(1)(c) is equivalent to Section 5 of the old Act and if there is any criminal misconduct in discharging of official duty, under such circumstances, accused is liable to be prosecuted in this behalf under Section 13(1)(c) and he is liable. He further submitted that the court below after perusing the documents has given the finding that the investment can be done in UTI, which gives higher rate of interest and they have not stated whether it can be invested in UTI or in any of the financial institutions, which is at market risk. Thereby, they have violated the statute or the said letter, which prima facie shows that accused Nos.1 to 4 who were the signatories of the investments of Rs.1.33 crore in UTI Mutual Funds have committed the offence. He further submitted that the court below after considering the materials produced has come to the conclusion that it is a matter of evidence that has to be considered and appreciated only at the time of full fledged trial and not at this premature stage. Taking into consideration these aspects, the petitioner/accused No.4 has not made out any good ground to allow the petition and prays to set aside the impugned order. 7. I have carefully and cautiously heard the submissions made by the learned counsel appearing for the parties and perused the records. 8. It is not in dispute that earlier accused No.3 with the permission of accused No.1 has invested Rs.1.33 crores with the UTI Mutual Funds under the instruments and it is also not in dispute that accused No.4/petitioner herein was an in-charge accounts officer and during his tenure, the said deposit got matured and he got it renewed through accused No.1 by processing the file. The only question that arises for consideration by this Court is, whether the accused persons are liable under Section 13(1)(c) of the Act? 9. For the purpose of brevity, I quote Section 13 of the Act, which reads as under : “13. The only question that arises for consideration by this Court is, whether the accused persons are liable under Section 13(1)(c) of the Act? 9. For the purpose of brevity, I quote Section 13 of the Act, which reads as under : “13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine”. 10. On close reading of Section 13(1)(c) of the Act, it indicates that if any person dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, then the said provision is attracted. 11. It is the submission of the learned Standing counsel for the respondent-Lokayuktha that the misconduct by a public servant need not be in connection with official duty, if it is for the benefit of others, under such circumstances, the provision of Section 13(1)(c) is attracted and is liable to be punished. 12. In order to substantiate the said fact, he has relied upon the decision in the case of Dhaneshwar as quoted supra. At paragraph No.4, it is observed as under : “4. It will be observed that the heading of S.5 is ‘Criminal misconduct in the discharge of official duty’. That is a new offence which was created by the Act, apart from and in addition to offences under the Indian Penal Code, like those under S.161, etc. The legislature advisedly widened the scope of the crime by giving by giving a very wide definition in S.5 with a view to punish those who, holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage. The legislature advisedly widened the scope of the crime by giving by giving a very wide definition in S.5 with a view to punish those who, holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage. The necessary ingredient of an offence under S. 161, Indian Penal Code, is the clause “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant” but it need not be there in order to bring an offence under S.5 of the Act home to the accused. The offence under this section is, thus, wider and not narrow, than the offence of bribery as defined in S.161, I.P.C. The words “in the discharge of his duty" do not constitute an essential ingredient of the offence. The mistake in the judgment of this court in the aforesaid ruling in the 1959 Supp 2 SCR 739: ( air 1959 sc 847 ) has arisen from reading those words, which are part merely of the nomenclature of the offence created by the Statute, whose ingredients are set out in sub-cls. (a) to (d) that follow, as descriptive of an essential and additional ingredient of each of the types of offence in the four sub-clauses. That that is the source of the mistake is apparent from the erroneous way in which the section has been quoted at p.744 of the Supreme Court Report (at p.849 of AIR) in the paragraph preceding the paragraph quoted above. The ingredients of the particular offence in cl. (d) of S.5 (1) of the Act are; (1) that he should be a public servant; (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant; (3) that he should have thereby attained a valuable thing or pecuniary advantage; and (4) for himself or for any other person. In order to bring the charge home to in accused person under cl. In order to bring the charge home to in accused person under cl. (d) aforesaid of the section, it is not necessary that the public servant in question, while misconducting himself; should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconducted himself in the discharge of his duty. "Duty" and "misconduct" go ill together. If a person has, misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it. That 'misconduct', which has been made criminal by S. 5 of the Act, does not contain the element of discharge of his duty, by public servant, is also made clear by reference to the provisions of cl. (c) of S. 5 (1). It is well settled that if a public servant dishonestly or fraudulently misappropriates property entrusted to him, he cannot be said to have been doing so in the discharge of his official duty (vide the case of Hori Ram Singh v. Emperor, 1939 FCR 159 : (AIR 1989 FC 43). An application for special leave to appeal from that decision was refused by the Privy Council in Hori Ram Singh v. Emperor, 1940 FCR 15 : ( AIR 1940 PC 54 ). This Court, therefore, misread the section when it observed that the offence consists in criminal misconduct in the discharge of official duty. The error lies in importing the description of the offence into the definition portion of it. It is not necessary to constitute the offence under el. (d) of the section, that the public servant must do something in connection with his own, duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. 5(1)(d). It is also erroneous to hold that the essence of an offence, under S. 5(2), read with S. 5(1)(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage”. 13. It is also erroneous to hold that the essence of an offence, under S. 5(2), read with S. 5(1)(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage”. 13. I have carefully and cautiously gone through the said paragraph and if the said paragraph is read along with Section 13(1)(c) of the Act, the said interpretation in consonance with Section 13(1)(c) is concerned, the said aspect has to be considered and appreciated with reference to the facts of the case on hand. On close reading of the material, which has been produced, no where in the charge sheet material it has been made out that the investment of amount of Rs.1.33 crore by accused No.4 through accused No.1 and he has misappropriated or otherwise converted for his own use or for the use of any other persons and what is the benefit, which has been received is not specifically made out in this behalf. Though, it is alleged in the charge sheet material that an amount of Rs.84 lakhs has been obtained as a commission, but to substantiate the said fact, there is no material that too show that if accused No.4/petitioner has made profit of the said amount or he was having knowledge that if other accused persons making profit of the said amount. The only allegation, which has been made is that there is loss to the tune of Rs.84 laksh to the Institution and for having deposited the said amount with UTI, if any loss is caused, out of wrong investment, under such circumstances, the provision of Section 13(1)(c) is not attracted, but accused No.4 is said to have invested the said amount and has mis-applied the funds. The said facts has been considered and appreciated. If care is not taken and caused any loss, under such circumstances, the same is recoverable from the accused persons. 14. Insofar as Sections 120(b), 166 and 409 of IPC is concerned, prima facie would state that there is material to show that the said offences are made out and the ingredients of the said sections are attracted and it is a matter, which has to be appreciated only after the full fledged trial. 14. Insofar as Sections 120(b), 166 and 409 of IPC is concerned, prima facie would state that there is material to show that the said offences are made out and the ingredients of the said sections are attracted and it is a matter, which has to be appreciated only after the full fledged trial. A close reading of Section 13(1)(c) along with Section 13(2) of the Act is concerned, there is no material to show that the said amount has been converted by accused No.4 for his own use or for the benefit of others. 15. In that light, there is no material to frame charge as against accused No.4 under section 13(1)(c) is concerned. This aspect has not been properly considered and appreciated by the trial Court in its right perspective and as such, insofar as that aspect is concerned, it requires interference by this Court. 16. In the light of the above observation, criminal revision petition is partly allowed. The charge is already framed in respect of Section 13(1)(c) insofar as accused No.4 is concerned and the same is set aside. Insofar as other offences as against accused No.4 is concerned, the order of the trial Court is confirmed. The said observation will not influence the trial Court while disposing main case as against other accused persons. In view of disposal of the petition, I.A.No.1/2018 does not survive for consideration and it is accordingly dismissed.