MUKESH CHAUHAN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Amit Srivastava, learned counsel for the revisionists, learned A.G.A. for the State and perused the record.

(2.) CHALLENGE in this revision preferred under Section 397 of the Code of Criminal Procedure (in short, 'the Cr. P.C.') is to the orders dated 22.7.2008 and 21.8.2008, passed by Sri Mahesh Nautiyal, the then Addl. Chief Judicial Magistrate (Court No. 27) Agra in Criminal Case No. 177 of 2007, State v. Jamuna Prasad Gautam and others, under Section 409 I.P.C. P. S. Lohamandi, Agra.

(3.) THE main submission made by the learned counsel for the revisionists is that the offence under Section 409, I.P.C. is not made out against the revisionists, as no property was entrusted to them in the capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and these accused did not dishonestly misappropriate any property. THE contention of the learned counsel is that a person can be charged under Section 409, I.P.C., if any property is entrusted to him in the capacity of a public servant etc., and that property is dishonestly misappropriated by that person and since in the present case neither the revisionists are public servants etc., nor the seized cartridges were entrusted to them in that capacity, hence, there was no occasion for the learned Magistrate to frame charge against the revisionists under Section 409, I.P.C. This contention of the learned counsel has got force and must be accepted.