Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17987 of 2010 ====================================================== Sunil Kumar Sinha, son of Late Ramchandra Prasad, Mohalla-Ram Bhawan, Gareriakhand, Jehanabad, P.S. and District-Jehanabad. .... .... Petitioner. Versus 1. The State of Bihar. 2. Sri Jinis Lal Rajak, the then Divisional Manager, Bihar State Warehousing Corporation, Patna. .... .... Opposite Parties. ====================================================== Appearance: For the Petitioner : Mr. Ramakant Sharma, Sr. Advocate. For the State : Mr. Ajit Kumar, A.P.P. For the Opposite Party No.2 : Mr. Naresh Dixit, Advocate. Mr. Brij Bihari Tiwari, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 4 16-04-2012 Petitioner, Sunil Kumar Sinha has prayed for quashing of order dated 26.03.2010 passed by the learned C.J.M., Bhojpur at Arrah in Arrah Nawada P.S. Case No.164 of 2008, G.R. No.2363 of 2008 whereby and whreunder petitioner has been summoned to face trial for an offence punishable under [STATUTE] . Jinis Lal Rajak, Divisional Manager, Bihar State Warehousing Corporation filed written report disclosing therein that 1539 bag of wheat weighing143936.106 quintal is missing from its Godown No.7. One key of godwon was kept by Sunil Kumar Sinha while another key was kept by U.P. Verma (since retired). The aforesaid misappropriation was detected during course of handing over charge by U.P. Verma to S.C. Mishra. Thereafter, a Fact Finding Committee was constituted by the Department who submitted its report -2- on 15.07.2008 holding both of them responsible for the aforesaid misappropriation costing Rs.21,80,630/-. On the basis of the aforesaid written report, Arrah Nawada P.S. Case No.164 of 2008 was registered under [STATUTE] . against Sunil Kumar Sinha and U.P. Verma. Investigation commenced, concluded followed with submission of charge sheet against both of them whereupon vide order dated 26.03.2010, the learned Chief Judicial Magistrate, Bhojpur at Arrah took cognizance which happens to be under challenge. Contention on behalf of the petitioner is that the aforesaid order happens to be bad in law as well on facts, hence is fit to be set aside. Further submitted that the Managing Director had issued circular providing storage of grains inside godown having double lock facilities (Annexure-2). On the basis thereof, as per Annexure No.3 local arrangement was made whereunder one key was to be retained by the Superintendent while another was to be kept by the person so authorized there under. So far Godown No.7 is concerned, another key was entrusted to Brajnandan Lal. Then submitted that petitioner was transferred vide letter no.355 dated 07.12.2007 and accordingly he handed over charge on 03.01.2008 to U.P. Verma (Annexure-4) to the extent of paddy only but as the key was handed over to Sri U.P. Verma, therefore, the aforesaid godown and its activity was managed by Sri U.P. Verma who had released wheat on 22.04.2008, 24.04.2008, 25.04.2008, 26.04.2008, 28.04.2008, 29.04.2008, 30.04.2008 -3- (Annexure-7). Therefore, in spite of having the charge relating to wheat not handed over to U.P. Verma, he had indulged in releasing the wheat and so whatever infirmities have been found, for that petitioner is not at all responsible. Then submitted that just after handing over charge, the management had got the stock verified and there had not been detection of any kind of shortage from the godown not of which petitioner was incharge during his tenure which is evident from Annexure-6. Not only this, at the time of praying for anticipatory bail, under Cr. Misc. No.44263of 2008 vide order dated 20.04.2009 Chief Judicial Magistrate was directed to see and verify the genuineness of the document and if the same is found to be genuine one then in that event, he be enlarged on bail (Annexure-8). In pursuance of which vide Annexure-9 petitioner was released on bail by the learned Chief Judicial Magistrate vide order dated 12.05.2009. So submitted that the allegation of the informant encircling the petitioner as an accused is nothing, but false statement which cannot be accepted as it happens to be contrary to the factual aspect. Also submitted that he has been exonerated in the Departmental inquiry by the Department which was taken upon on same charge, hence in that event criminal proceeding cannot be allowed to continue. At the other hand the State failed to file counter affidavit however submitted that for the present purpose the order of cognizance cannot be struck down because of the fact that after taking into account the materials collected by the Investigating Authority during course of -4- investigation, was perused by the learned Chief Judicial Magistrate who formed his opinion thereupon and then took cognizance of the offence summoning the petitioner and others. Therefore, the order impugned happens to be in accordance with law. Further submitted that Departmental proceedings and criminal prosecution are two independent event without having any kind of impact followed with its results On behalf of O.P. No.2, counter affidavit has been filed and virtually by such action has supported the case of the petitioner in toto. From the averments of the counter affidavit suggest that no offence has been committed at the hands of petitioner. Perused the record. Before coming to the legal aspect, I would like to refer relevant paras of the counter affidavit filed on behalf of O.P. No.2. “15. That from perusal of the physical verification report of Godown No.7 jointly conducted by Sri P.C. Ojha, Divisional Manager / Vigilance and Sri U.P. Verma, Superintendent, Ara on 10-03-2008 it was found that the physical stock of wheat was analogous with the stock register, Neither shortage nor excess in wheat was found (Annexure-G).” “16. That from perusal of the records it is evident that the Go

Applicable IPC Section: 409

Statute Text:
Section 409 of the Indian Penal Code. Criminal breach of trust by public servant or by banker, merchant or agent, etc. 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.