BANWARI LAL. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The present misc. petition has been filed by the petitioner challenging the order dated 23.6.2008 passed by learned Additional Sessions Judge No.2, Sri Ganganagar Camp at Suratgarh in Criminal Revision No.18/2007 whereby he has partly allowed the revision petition setting aside the order dated 25.4.2007 passed by learned Judicial Magistrate First Class No.1, Sri Ganganagar in Criminal Case No.326/2000 so far as direction to frame charges against the petitioner for the offences under Sections 467 and 468 I.P.C. were concerned and maintaining the order whereby direction to frame charge under Section 409 I.P.C. was made.

(2.) Succinctly stated the facts of the case necessary for the disposal of the case are that one Pahalwan Singh filed an F.I.R. alleging inter alia that he has moved an application for getting loan from Sri Ganganagar Shetriya Gramin Bank which was sanctioned on 15.12.1994. He further alleged that he handed over the loan amount of Rs. 40,000/- to Banwari Lal - bank manager (petitioner) for depositing the same in the bank on 11.1.1996 but the petitioner did not deposit the said amount. Thus, it was alleged that the petitioner committed offence of cheating as well as forgery. On the aforesaid complaint, FIR was registered and investigation commenced. During the course of investigation, the police came to the conclusion that though belatedly but on 8.2.1996, the petitioner deposited the amount under his own signatures and accordingly, the police found that the belated complaint filed by the complainant was malafide and that since the bank started demanded money from the complainant in different heads, the FIR was lodged. The fact of deposit of the amount in the bank more than two years prior to the filing of the complaint was not disputed. The complainant was given a notice and on a notice being given, he filed a protest petition whereupon the learned Magistrate took cognizance against the petitioner. The petitioner appeared and thereafter at the stage of framing of charges, the Magistrate by order dated 25.4.2007 directed framing of charges under Sections 409, 467 and 468 IPC. The petitioner challenged the said order by way of revision and the revisional court vide order dated 23.6.2008 came to a finding that ex-facie offences under Sections 467 and 468 IPC were not made out against the petitioner but because of the fact that the petitioner retained the amount of the complainant for a period of 27 days, the charge under Section 409 IPC was sustained.

(3.) Learned counsel for the petitioner while placing reliance on the judgment of the Hon'ble Apex Court in the case of Narendra Pratap Narain Singh and another v. State of U.P. reported in 1991 Cri.L.J. 1816 and the judgment of this Court in the case of Rajendra Prasad v. State of Rajasthan reported in 2004(1) Cr.L.R. (Raj.) 813 submits that temporary retention of money without any dishonest intention cannot make the accused liable for offence under Section 409 IPC. The money deposited by the complainant was appropriated by the petitioner in different loan accounts of the complainant for the purpose of securing the interest of the bank and thus, it cannot be said that the petitioner bore any dishonest intention. Resultantly, it is submitted that the controversy involved in the present case being squarely covered by the cases of Narendra Pratap Narain Singh (supra) and Rajendra Singh (supra), the charge framed against the petitioner under Section 409 IPC also cannot be sustained.