IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29999 of 2008 Shakuntala Mishra, wife of Sri Ramanand Pandey, village Kopa Samhauta, PS Kopa, district Saran, at present residing in Jagarnath Mandir, in front of Bajaj Plaza, Macharhatta, PS Khajekala, Patna City, Dist. Patna – Petitioner. Vs. The State of Bihar. 2 24.8.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The Incharge Area Education Officer filed an F.I.R. alleging therein that the petitioner was given temporary charge of the records of Narayani Kanya Madhya Vidyalaya, Patna City by order, dated 30.9.2003. It is later alleged that one Kiran Kumari who was given the responsibility of taking over the records has not handed over the records of the school by the petitioner. The petitioner challenged the authorization of Kiran Kumari to take over the records of the school by filing CWJC No. 6757/2004 which was disposed of on 15.2.2006 with the observation that this application is dismissed as not pressed in view of the statements made in the counter affidavit of private respondent. By Annexure 3 one American Paswan was made Headmaster Incharge of the school. Learned counsel for the petitioner submits that no case is made out under section 409 of the Penal Code and the order, dated 3.1.2008 charging the petitioner of offences under section 409 is unwarranted. The Criminal breach of trust is defined under section 2 405 of the Penal Code wherein it is stated that any one who is entrusted with the property or retains dominion over the property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust. To constitute an offence it must be shown that the person who is entrusted with the property had the intention to dishonestly misappropriate or dishonestly convert the property for his own use. In the facts of the present case no doubt the petitioner was entrusted with the property but the intention and element of dishonestly misappropriating or converting to his own use are patently missing and as such it cannot be said that the petitioner has committed an offence under section 409 of the Penal Code. Another aspect of the matter is that the petitioner may have been responsible for misconduct inasmuch as she ought to have obeyed the higher officers but not of a criminal offence. All acts of misconduct with respect to discharge of official duty can not be subject matter of a criminal case. At most if it is proved against the petitioner that she was guilty of not respecting the order of the higher authorities, she may have to face a departmental enquiry such acts are not motivated with any criminal intention least of all cannot be said to 3 constitute an offence amounting criminal breach of trust or misappropriation. In the facts of this case I find that it comes within the exceptions (1) and (3) in the case of State of Haryana & Others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335 which reads as follows : “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. “(2) . . . . . . . “(3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.” In the aforesaid facts and circumstances of the case, order, dated 3.1.2008 framing charge is hereby quashed. Consequently the entire proceeding against the petitioner in Chowk PS Case No. 146/2005 giving rise to Trial No. 1716/2008 pending in the court the Judicial Magistrate, Ist Class, Patna City is quashed. In the result, this application is allowed. AFR/haque (Sheema Ali Khan, J.)