ANIL KUMAR DUWEDI Vs. STATE OF U.P.

JUDGEMENT

(1.) The applicant Anil Kumar Diwedi has sought quashing of the charge sheet arising out of Crime no. 935 of 2016, under Section 409 IPC, relating to Police Station Ikauna, District Sharawasti, pending in the Court of Sessions Judge, Sharawasti. The brief facts are that an FIR was lodged by the opposite party No. 2- District Inspector of Schools Shrawasti against Harendra Kumar Singh, who was then Assistant Clerk in his office. It was alleged in the report that Harendra Kumar Singh illegally withdrew funds and did not hand over the charge of the documents between the period 15.2.2010 to 18.6.2012. The applicant was a peon in the said department and his name came into light in the year 2016 when during investigation it was found that Harendra Kumar Singh had deposited some cheques in the account of the applicant and thereafter withdrew the said amount from the bank. The charge sheet against Harendra Kumar Singh was filed on 16.12.2014 while the charge sheet against the applicant and 3 others was filed in the year 2016.

(2.) It has been submitted on behalf of the applicant that in order to attract the offence of Section 409 IPC there has to be entrustment of the property. The learned counsel has referred to the ingredients of Section 409 IPC, which require that the person who was entrusted with the property in his capacity of his servant or in the way of his business as a banker commits criminal breach of trust in respect of that property, shall be said to have committed the offence of criminal breach of trust. According to the applicant, since he was merely a peon, there was no question of entrustment of any property to him. The main accused Harendra Kumar Singh being office assistant was having control over the official records and in fact he has committed the offence. The applicant has been made accused in this case only for the reason that certain amount was deposited in his bank account which was subsequently withdrawn. The applicant was never handed over any document such as cash book, bill book, cheque book and as such the question of misappropriation of any fund by him does not arise. The Investigating Officer did not find any evidence against him and that is why in the year 2014, when the charge sheet was submitted, only Harendra Kumar Singh was made accused. However, after a gap of 2 years, the applicant and 3 others were also charge sheeted. It has also been contended on behalf of the applicant that since he was a Class-IV employee, therefore, he was bound to obey the order of Harendra Kumar Singh and other higher authorities. He was the only person who was In-charge of the official documents and if he has committed any misappropriation in respect of the official records, the applicant cannot be held liable for the said offence.

(3.) The learned counsel for the applicant has relied upon a Supreme Court decision in support of his arguments which is reported in (2009) SCC page 466, Shakson Belthissor v. State of Kerala and another ; in which it has been held that where the allegations made in the complaint or the FIR taken at their face value, make out absolutely no case and do not disclose the essential ingredients of an offence which is alleged against the accused, the prosecution cannot proceed. The ingredients in order to constitute a criminal breach of trust are that there must be entrustment of property and that the person dishonestly misappropriated the same or converted that property to his own use or dishonestly dispose of the property will fully suffering other person so to do shall be said to have committed the offence of criminal breach of trust. Unless there is evidence of a mental act of fraudulent misappropriation, every breach of trust may not result in a penal offence of breach of trust.