IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43988 of 2006 DEO NANDAN PRASAD MAHTO, son of late Mishri Mahto, resident of Mohalla-Pokharia(near Press Club), P.S.Begusarai Town, District-Begusarai----------------------------------------------Petitioner. Versus STATE OF BIHAR ------------------ For the petitioner : Mr. Gyanand Roy, Advocate For the State : Mr. Abhimannu Sharma, A.P.P. ----------- 8. 23.3.2009 Heard learned counsel for the petitioner and the State. It is a case in which F.I.R. was lodged for non-submission of charge even after retirement of the petitioner followed by not depositing cash book and other papers. A petition under section 239 of the Code of Criminal Procedure was filed to the effect that sanction was lacking and no material was available on record on the point of misappropriation. Though in the revision only sanction order was pressed but both the points were not accepted. At the stage, learned counsel preferred to centralize points of one of the materials which concern with misappropriation, if any, is lacking in the case. He further submits that F.I.R. was lodged only after his retirement and thereafter, a departmental proceeding was initiated. His retiremental benefits were held up which were challenged and by order of a Bench of this Court, the same was ordered to be released. According to the learned counsel, accepting petitioner’s plea and releasing of his all retiremental benefits making the petitioner an accused of misappropriation of any of the entrusted properties is false. According to him, all the papers were with concerned department, the only formalities remained with him was to - 2 - make over charge which could not be finalized due to non-appearance of any person from the concerned department to take over the charge but I find no discussion on the point of misappropriation, if any, held by the petitioner. Im my view also, in this case even evidence is lacking on the point of entrustment. It appears from presumption that some kind of documents, papers and other materials are remained in possession of the petitioner after entrustment of those by the concerned department. So, for constituting any offence under section 409 of the Indian Penal Code, it is bounden duty of the court to consider the real entrustment and its misappropriation. Discussion is lacking on the point. The petition is allowed. Both the impugned orders are set aside. Learned Magistrate, Begusarai, is directed to redecide the matter taking into consideration the observations made in accordance with law. Sudip ( Mandhata Singh, J )