IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.7366 of 2009 RAMASIS RAM son of late Prasadi Ram, Resident of village- Mohanpur, P.S. Ghoshwari, District- Patna ….Petitioner Versus THE STATE OF BIHAR …OP ----------- 2/ 24.08.2010 Heard the parties. The First Information Report bearing Chapra Rail P.S. case no.48 of 2006 was instituted against the petitioner on account of the fact that he as a Commercial Clerk in Railways had failed to deposit certain amount of money which had been realized during the official transaction. Submission of the counsel for the petitioner is that since the petitioner had already made good the money as required by Rule 2719 Vol. II of the Indian Railway Commercial Manual, his prosecution under section 409 is totally unwarranted and, therefore, the case ended in final report as ‘mistake of fact’ and the Magistrate has not given any reason while differing with the final report. I do not agree with this proposition since it is admitted that there had been temporary defalcation, an offence under section 409 Indian Penal Code would be made out and the Magistrate has passed a speaking order. In view of such, this application is dismissed. JA/- (Anjana Prakash, J.)