1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1118 OF 2009 Shaikh Gulab Shaikh Maula ..PETITIONER -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mrs. M.A. Kulkarni, advocate for petitioner Mr. N.H. Borade, A.P.P. for respondents ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 29th September, 2010. PER COURT : 1. By this Petition, the petitioner seeks quashing of F.I.R. registered against him on basis of which Crime No.127/2009 is registered at Hingoli (Rural) Police Station for the offences under Sections 409 and 420 of the Indian Penal Code. 2. The petitioner is a fair price shop owner. It is stated in the F.I.R. that the petitioner was entrusted with wheat and rice for distribution to eligible persons employed under a special scheme called "Gramin Rojgar Yojna". He, however, did not distribute the grains as required for the year 2003-2004 and 2004-2005 and committed misappropriation of the grains valued at Rs. 2,58,956/-. 2 3. Learned Advocate for the petitioner would submit that the petitioner can not be booked for the offence under Sections 409 and 420 of the Indian Penal Code because he is not in the employment of the respondents nor he could be regarded as their servant. It is contended that the administrative action was taken against the petitioner and the explanation given by the petitioner was accepted by the concerned Authority, and therefore, now the proceedings with the criminal action is impermissible. It is further argued by learned Advocate for the petitioner that the petitioner, being owner of the fair price shop, at the most could be prosecuted for the offence for Essential Commodities Act, if some dereliction in the distribution of grains are noticed, yet certainly he can not be prosecuted for the offences under Sections 409 and 420 of the Indian Penal Code as has been done by the respondents. 4. At this juncture, it will not be proper to determine the merits of the case. It is true that the petitioner was fair price shop owner. However, wheat and rice was not given in his custody for the purpose of distribution to the purchasers holding the cards. The grains were given to him for distribution to the employees, who were the daily wagers employed under the special scheme called "Gramin Rojgar Yojna". In other words, a part of the payment to be made to such workers was in shape of grains and that the 3 petitioner was temporary custodian of those grains to be distributed to the daily wagers. In other words, he was having domain over the grains to be distributed to the workers. If he did not account for distribution, he could be booked for the offence under Section 406 of the Indian Penal Code in as much as he could be treated as agent of respondents for the purpose of work of such distribution. It is not necessary that the person must be under employment of the respondents. All the avernments made in the Petition would reflect the defence which the petitioner desirous to adopt. The F.I.R. can not be quashed on basis of futuristic defence available to the petitioner. 5. Under the circumstances, the Petition is rejected. Liberty granted to apply for discharge if any material is found during the course of investigation which can be used to demonstrate absence of mensrea on part of the petitioner. (V.R.KINGAONKAR) JUDGE gas/criwp1118.09