The revision petitioner herein is the accused in C.C.No.151/2009 before the Judicial First Class Magistrate Court III, Thiruvananthapuram. He is aggrieved by the charge framed in the said case by the learned Magistrate on 27.12.2012 under Section 409 IPC.
2. The learned counsel for the revision petitioner submitted that the charge was not properly and legally framed in this case. My attention was drawn to the allegations in the complaint which led to the crime. What is alleged in the complaint is misappropriation of funds by a public servant. Of course if it is a simple case of misappropriation, it is punishable under Section 403 IPC. But in this case the prosecution alleges misappropriation amounting to breach of trust as defined under Section 405 IPC. The charge framed by the trial court is under Section 409 IPC. For such a prosecution under Section 409 IPC, the alleged offence of breach of trust must have been committed by any public servant or banker, or merchant, or factor, or broker, or attorney or agent, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust. So, Section 409 IPC must be read along with Section 405 IPC.
3. Of course, the allegation is that while working as Cashier in the Postal Department the petitioner misappropriated some amount from public funds. If so, it will have to be examined whether the offence comes under Section 408 IPC. Anyway, let the court below look into the matter meticulously and take a decision judiciously, whether the charge requires alteration.
4. The learned counsel submitted that the real offence attracted in this case is not under Section 409 IPC. Of course I also find the necessity of a proper, legal and judicious consideration of the matter, to find out what exactly is the offence involved in this case. The learned counsel further submitted that different instances of misappropriation amounting to different transactions are seen clubbed in one charge. This also will have to be looked into by the trial court, and the trial court will have to decide whether such a clubbing is possible, or whether it will cause prejudice to the accused.
5. As discussed above, the matter requires re- consideration by the trial court. The learned counsel for the revision petitioner can very well present the legal and factual aspects before the learned Magistrate, and convince the trial court that the charge, factually and legally, requires alteration. If any alteration in charge is required it shall be done by the trial court without any delay.
In the result, this revision petition is disposed of, with direction to the trial court to consider whether the charge in question requires alteration, factually or legally, as the revision petitioner would contend.
P.UBAID JUDGE ab