IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 638 of 2002 Date of decision: 22.03.2010 State of H.P. ... Appellant Versus Krishan Dutt … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. M.S. Thakur, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Court No. 1, Shimla, dated 1.5.2002, vide which the respondent was acquitted of the charge framed against him under Section 420 I.P.C. Briefly stated, the facts of the case are that a written complaint was sent by Shri R.N. Batta, the then S.D.M. and President of Notified Area Committee, Shimla, to Additional Superintendent of Police, Shimla, alleging that the respondent who was posted as Rent and Tax Collector in the said Society and during audit of the society from 10/87 to 3/89, it was found that the respondent had collected rent from different tenants and had received in all Rs. 30,746.99 as house tax 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 and Rs. 4072.06 in regard to land. The said amount had not been deposited by him with the said society. Thus, it was alleged that a sum of Rs. 2,77,698.90 has been misappropriated by the respondent who had admitted having received this amount and as such, a case of misappropriation be registered against him. The said complaint is dated 19.12.1990, on which, an F.I.R. was registered on 20.12.1990 and after investigation, the challan was filed as against the respondent under Sections 409 and 420 I.P.C. On consideration of the challan, the learned trial Court framed a charge as against the respondent under Section 420 I.P.C. only for the reasons best known to it. The respondent was accordingly tried by the learned trial Court for the offence punishable under Section 420 I.P.C., leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. It is clear from a perusal of the record that the challan was filed as against the respondent under Sections 420 and 409 I.P.C. and the main allegations were in regard to misappropriation of the amount entrusted to the respondent as a public servant and not of cheating as against the respondent. Accordingly, the charge ought to have been framed by the learned trial Court under Section 409 I.P.C. and accordingly, the respondent should have been charged by the learned trial Court under that Section. However, it appears that the learned trial Court framed the charge only under section 420 I.P.C. and no objection appears to have been raised by the learned Prosecutor, who was appearing in that case. This point was never considered by the learned trial Court at the stage of the framing of the charge or at the 3 time when the case was decided that the charge has been wrongly framed and it should have been framed under Section 409 I.P.C. The prosecution led evidence and the learned trial Court conducted the trial and rightly so concluded that the charge under Section 420 I.P.C. was not proved according to law. Nobody took note of this fact that the charge has been wrongly framed and there was no question of having committed the offence under section 420 I.P.C. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. However, the State Government/the Society is at liberty to proceed against the respondent departmentally for taking action against him, if not taken, for recovery of the amount against the respondent under the rules and procedure as deemed fit under the facts and circumstances of the case. Accordingly, the appeal filed by the appeal is dismissed. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), March 22, 2010 Judge (BSS) 4