IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.344 of 2009 PARSHURAM SAHU Versus THE STATE OF BIHAR & ORS ----------- 3. 3.9.2009 Counter affidavit has been filed on behalf of respondent nos. 5, 11 and 12. Heard learned counsel for the petitioner and the State. The petitioner stated to be a teacher in the upgraded middle school, Hasanpur, Samastipur was given a notice on 3.2.2009to hand over complete charge of the school to one Shivjee Prasad “Sudhanshu” and submit charge report failing which it shall be deemed to be a case of financial irregularity. An F.I.R. has then been lodged against him on 6.2.2009 under Section 409 of the Penal Code. The F.I.R. states that he did not hand over charge to the new incumbent. Consequently, the informant, Block Education Extension Officer, wrote to the State Bank of India, branch Hasanpur, that henceforth the account of the school shall be operated by the new incumbent only. From the Bank statement made available, the petitioner was not furnishing accounts in respect of withdrawals made by him as is evident from the statement of accounts, and which required investigation. Learned counsel for the petitioner submitted that he was ready and wiling to submit accounts. The allegations are vague and do not reveal any financial illegality to constitute an offence under Section 409 of the Penal Code. Counter affidavit has been filed on behalf of the respondents. The counter affidavit alleges certain withdrawals made by the petitioner on specified dates the last being on 13.1.2009 prior to the order dated 3.2.2009 - 2 - asking him to hand over charge. The counter affidavit then states of illegalities with regard to digging of foundation, non deposit of sale amount of old building materials and in which situation the First Informant Report was lodged against the petitioner, found true during investigation. The counter affidavit is cryptic consisting of only one substantive paragraph. The materials urged in the counter affidavit to allege financial irregularities on part of the petitioner on the face of it appear to be non est. Prior to 3.2.2009 he was fully competent to operate the accounts. The withdrawals have been made by him when he was authorised to do so. The First Informant Report does not talk of any illegalities by the petitioner in execution of any works by digging of ditch for foundation, sale of materials of the old building and non deposit of the cash fully by conversion to his own use etc. All that it states that failure to hand over charge shall be deemed to be a case of financial irregularity. Section 409 of the Penal Code makes it an offence if a person entrusted with property or with any dominion over property in his capacity of a public servant commits breach of trust in respect of that property by using it or disposing it in any other manner than prescribed. Therefore, there has to be an allegation of breach of trust by misuse of a specified money given for a purpose to be used and in the manner prescribed to constitute an offence under Section 409 of the Indian Penal Code. The First Informant Report is vague. It only states that if charge is not handed over, it shall be deemed to be a case of financial irregularity. This Court has no hesitation in holding that no prosecution can be launched under Section 409 of the Penal Code on merely assumption and - 3 - presumption. The First Informant Report must state the foundational facts, making out a prima facie offence. The First Informant Report is not the foundation on which a super structure can be built subsequently as that would amount to giving opportunity for false implication. This Court is satisfied that what was disturbing the authorities were the administrative lapses on part of the petitioner in not handing over the charge. If that be so, the authorities have more than ample disciplinary powers over the petitioner to be exercised in accordance with law. Nothing in the present order shall be understood to mean or be deemed to be a restriction in any manner upon the authorities to appropriately deal with the petitioner on the administrative side in accordance with law. That is the privilege of the authorities and it is not for the Court to interfere with it. If after settlement of the accounts, for which the petitioner is willing and is accordingly directed to appear, any discrepancies are found, nothing prevents the authorities from making specific allegation against the petitioner and proceeding in accordance with law. This Court makes no observation with regard to the jurisdiction of the authorities to proceed appropriately against the petitioner in the event that he does not abide by his undertaking to the Court given today to appear before the authorities for settlement of the accounts. The First Information Report lodged against the petitioner dated 6.2.2009 bearing Hassanpur P.S. Case No. 18/09 is quashed. The writ application is allowed with observations. P. Kumar (Navin Sinha, J.)