Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.43276 of 2011 ====================================================== 1. Rameshwar Prasad S/o Late Jainanadan Prasad, R/O Mohadipur, PS- Majhaulia, Distt.- West Champaran (Ex. Najir of Bettiah Raj) under the courts of words Act). .... .... Petitioner/s Versus 1. The State Of Bihar 2. Nijamuddin son of Md.Suleman, R/o Vill –Banswaria, PS-Bettiah Nagar, Distt.- West Champaran. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. S.K.Thakur, Adv. For the Opposite Party/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 2 23-11-2012 Heard learned counsel for the petitioner and learned counsel for the State. 2. In this case, the petitioner is challenging the order dated 22.9.2011 passed by learned Judicial Magistrate 1st class, Bettiah in Tr. No. 290/2011 arising from Bettiah (Town) P.S. Case No. 174 of 2004 whereby and whereunder the court below has rejected the application of the petitioner. 3. A Complaint Case No. 189C/2003 was filed before the learned Chief Judicial Magistrate, Bettiah where the allegation has been made that the complainant had paid Rs. 10,000/- to the petitioner for depositing the same as a security amount but the receipt was not issued on the pretext that receipt would be issued Patna High Court Cr.Misc. No.43276 of 2011 (2) dt.23-11-2012 2/6 after depositing the entire amount. Ultimately the complainant could not participate in the bid for mango orchard. When the complainant asked the petitioner to return said amount but every time evaded to return the said amount on one plea and other and finally the accused petitioner refused to return the payment. When the petitioner refused to return the said amount, a legal notice was given but the money was not paid nor receipt of depositing the same was handed over to the informant. 4. In this case, it also appears that a case was filed by one Ramesh Mahto against the informant of the present case where the allegation has been made of plucking the Mango illegally from the Chakrabagh orchard attached to Bettiah Raj. In the said complaint case, the petitioner has been shown as a witness 5. . The court below after institution of Complaint Case No. 189C/2003, referred the matter to the Police under section 156(3) of Cr. P.C. and that was instituted as a Bettiah P.S. Case No. 174/2004 for offences under [STATUTE] . The Police after investigation submitted the charge sheet and on that basis, the court below took cognizance of the offence. The petitioner filed the discharge application before the court below and submitted, the materials are not sufficient against the petitioner to frame the charge under the Patna High Court Cr.Misc. No.43276 of 2011 (2) dt.23-11-2012 3/6 aforesaid sections. The court below by order impugned rejected the discharge application and next date was fixed for framing of the charge. 6. The counsel for the petitioner submits that the petitioner has already superannuated from service and it is a matter of Rs. 10,000/-. It has been submitted, Rs. 5,000/- was/is still in the hand of the State exchequer. He has further submitted that save and except, bald statement there is no material to show that the petitioner had demanded the money or had been paid the said amount. He has further submitted that the present case is a malicious prosecution, as on earlier occasion, a complaint case was filed where the petitioner has been shown as a witness. Legal notice was given, where allegation of illegal plucking of mango was made and non-depositing the said amount. 7. In support of his contention, he has relied on judgment Sajjan Kumar Vs. Central Bureau of Investigation, (2010) 9 SCC 368, wherein in paragraph 17, the Hon’ble Supreme Court has categorised as to what court has to do at the stage of framing of charge and fixed parameter for framing of the charge. Paragraph 17 of the said judgment will be relevant which is as follows:- “Exercise of jurisdiction under Sections 227 and 228 Patna High Court Cr.Misc. No.43276 of 2011 (2) dt.23-11-2012 4/6 of Cr. P.C. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr. P.C. has the undoubted 17 power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials place before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basis infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if Patna High Court Cr.Misc. No.43276 of 2011 (2) dt.23-11-2012 5/6 he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and

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.