IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Miscellaneous Application No.397 of 2007 (U/s 482 of Code of Criminal Procedure) P.N. Srivastava ………. Applicant Versus State of Uttarakhand & another ..…. Respondents Dated: August 20, 2011 Hon’ble Servesh Kumar Gupta, J. Heard Sri Ramji Srivastava, Advocate for the applicant and Sri H.O. Bhakuni, Brief Holder for the State/respondent no.1. By way of this criminal miscellaneous application, the order of cognizance-dated 25.7.2006 passed by the Chief Judicial Magistrate, Dehradun in criminal complaint case no.1072 of 2004 titled as Mukesh Dhawan Vs. P.N. Srivastava, is under challenge. It is pertinent to mention at the outset that the private respondent no.2-Mukesh Dhawan, the complainant in the said complaint, has died, as has been mentioned in paragraph 4 of the rejoinder affidavit and this fact has also been admitted by Sri Lokendra Dobhal, Advocate, who earlier appeared on his behalf. After giving primary hearing to the petitioner, it also comes out that the complaint was filed by Mukesh Dhawan on behalf of his mother Smt. Krishna Kumari, who could not come to the court to file the complaint on account of her old age and it is not known whether Smt. Krishna Kumari is still alive or not. After hearing to some extent, the delay condonation application no.971 of 2011 in moving the rejoinder affidavit is allowed and thus, this rejoinder affidavit is taken on record. 2 It appears in the fitness of things that without waiting the respondent no.2-Mukesh Dhawan to be substituted in the lower court u/s 302 Cr.P.C. and subsequently thereafter in this petition, this petition be disposed of with the facts available, inasmuch as, whatever necessary to adjudicate upon the propriety and the legality of the impugned order, is available with the record, so it is futile to keep this petition pending till somebody comes forward for substitution in place of Mukesh Dhawan. It transpires from the facts that Punjab National Bank was a tenant in the building of Smt. Krishna Kumari in city Dehradun and it had grievance against the said landlady towards the proper water supply in the summer season but she did not pay any heed. So, the rent of Rs.12,850/- for the month of May, 2004, which was deposited in the account of Smt. Krishna Kumari on 1.6.2004, was later withdrawn by the Bank towards the charges which the latter had to spent for procuring the proper fitness of water supply in the bank and the same was debited from the account of Smt. Krishna Kumari. Smt. Krishna Kumari, feeling aggrieved, asked her son to file the complaint for the offence of Section 409 IPC because it was revealed that the clerk concerned of the Bank debited the said account at the instruction of P.N. Srivastava (applicant), who at the relevant time, was the Chief Manager of Punjab National Bank (now retired, as has been informed by his learned counsel). The learned Magistrate after recording the statement u/s 200 Cr.P.C. and collecting the evidence, did not find any reason to take cognizance and dismissed the complaint u/s 203 Cr.P.C. on dated 14.6.2005. The revision was preferred against the said order of dismissal and the learned Sessions Judge in criminal revision no.85 of 2005 set aside the order of dismissal and directed the Magistrate to make further 3 enquiries into the matter and pass orders in accordance with law. The Magistrate concerned in compliance of the order of the Sessions Judge has passed the impugned order. It has been contended on behalf of the applicant that no offence of Section 409 IPC is made out at any rate and all the more, for the reason that now the applicant, who was the Chief Manager of the Bank at that time, has been retired. It is pertinent to go through the provisions of Section 409 IPC, which envisages the criminal breach of trust not only by the public servant but by the banker also. The rent, which the bank deposited in the account of Smt. Krishna Kumari, was the property of the landlady Smt. Krishna Kumari. As soon as the amount is deposited in her account, the same is owned by that lady, notwithstanding the immediate material possession over that cash is with the bank. The bank, in that capacity, was only the trustee of the said amount. It could not withdraw the money without the consent of the accountholder arbitrarily on the whims of the Chief Manager. The clerk of the bank, who debited the account at the instructions of the applicant-P.N. Srivastava, was only the instrumental and not a decision taker. So, prima faciedly the cognizance order cannot be said without any basis and is liable to be upheld. Thus, this petition is bereft of merit and is liable to be dismissed. C482 petition is dismissed. However, the lower court is free to proceed with the trial, if the complainant is substituted by any successor and permitted by the Magistrate for being succeeded u/s 302 Cr.P.C. A copy of this order be sent to the trial court concerned. (Servesh Kumar Gupta, J.) 20.08.2011 Rajeev Dang