THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.2121 OF 2010 ORDER: 1 The Sub Inspector of Police, Maredumilli P.S. registered a case against the petitioner and two others in Cr.No.18 of 1997 for the offence punishable under section 409 of IPC and after investigation filed a charge sheet against them for the said offence and the leaned Judicial Magistrate of I Class, Rampachodavaram took cognizance of the same as C.C.No.14 of 2006. During the course of trial, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.29. Having assessed the said evidence the trial court, while acquitting the third accused of the said charge, came to the conclusion that the first accused and the petitioner who is A.2 are guilty of the said offence punishable under section 409 of IPC and accordingly sentenced them to suffer rigorous imprisonment for a period of three years and also to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for a period three months. Questioning the said conviction and sentence dated 13.06.2008 imposed by the trial court the petitioner preferred Criminal Appeal No.186 of 2008 and the other accused i.e. A.1 preferred Criminal Appeal No.194 of 2008. The appellate court, while concurring with the findings of the trial court and allowing the appeals partly reduced the said sentence of three years to that of fine and directed the petitioner and the other accused i.e. A.1 to pay an amount of Rs.5,000/- each for the offence punishable under section 409 of IPC by its common judgment dated 26.10.2010. The same is questioned in this revision by the petitioner. 2 The case of the prosecution, in brief, is that the petitioner was Junior Assistant, M.P.D.O. Office, Maredumilli and the accused 1 & 3 are Mandal Parishad Development Officer, Maredumili and Senior Assistant of P.R. Sub Division of Peddapuram respectively. That the I.T.D.A. Rampachodavaram funds were lying in 7 non operative S.B. Accounts in Andhra Bank, Maredumilli branch in the name of M.P.D.O. Maredumilli since 1984 and that A.1 had drawn a total sum of Rs.5,41,000/- by issuing the cheques in the name of the petitioner who encashed the same and the third accused had colluded with the petitioner and the first accused and they had misappropriated the said amounts for their own use and thus the accused being public servants had committed the offence of criminal breach of trust punishable under section 409 of IPC. 3 The main contention of the learned counsel for the petitioner is that the first accused, at the relevant point of time, was working as Mandal Parishad Development Officer and the petitioner was working as Junior Assistant attached to the said office and he does not have any cheque power and he only obeyed the instructions of the Mandal Parishad Development Officer in presenting the cheques that have been issued by him and paid the cash to the said Mandal Parishad Development Officer. Despite the said fact, the courts below, according to him, erroneously held that the petitioner in connivance with the other accused committed criminal breach of trust. 4 From the facts it appears that a total sum of Rs.5,41,000/- was drawn during the relevant period. The question is as to whether the petitioner also can be said to have committed criminal breach of trust or not as provided for under section 409 of IPC. The said cheques were marked as Exs.P.2 to P.12 and from a perusal of the said cheques it is clear that it was the Mandal Parishad Development Officer, Mandal Parishad, Maredumilli, who is arrayed as A.1 has signed the said cheques on different dates and in the said cheques it is mentioned as “self” after the word ‘pay’. May be it is true that the said amounts were drawn by the petitioner, but, from that it cannot be said that he also committed the said offence falling under section 409 of IPC. It is a normal practice in any office for the superior officers to handover cheques to the subordinates so that the subordinates go to the bank, present the said cheques and collect the amount. From that it cannot be inferred that the petitioner is hand in glove with the first accused. If at all there is any breach of trust, the same can be attributed only to the first accused, who issued the said cheques and it cannot be said that the petitioner also is responsible for the said offence. From a perusal of the judgments, which are impugned in this revision, this court is of the view that this aspect was not gone into by the courts below. The learned counsel for the petitioner submits that in fact this particular aspect was argued before the courts below, but, however, the trial court as well as the appellate court have not taken the said aspect into consideration. 5 As the facts are not in dispute and the said cheques which are marked as Exs.P.2 to P.12 were signed by the first accused by name N. Arun Kumar, and the same are self cheques, though the petitioner has collected the amounts covered under those cheques by presenting the same into bank, it cannot be said that he is also guilty of the alleged offence punishable under section 409 of IPC. 6 Accordingly, this revision is allowed and the conviction and sentence imposed on the petitioner by the courts below are hereby set aside. The fine amount, if any, paid by the petitioner shall be refunded to him. ----------------- Kvsn 08.03.2011