This is a Criminal reference made by the learned Sessions Judge, Tripura, in Crimi­nal Motion No. 6 of 1964 with a recommendation for quashing the charge as framed under Section 406 I. P. C. in C. R. Case No. 379 of 1963, by the Magistrate First Class, Sadar.

(2) The facts leading up to this reference are as follows :

On 18-7-63 P. W. 1 G. W. Wadhwani, Execu­tive Engineer, Agartala Division No. 1 filed a complaint in the Court of the Sub-Divisional Magistrate, Sadar, Agartala, Tripura against the accused petitioner Ajoy Kumar Roy, a Contrac­tor, working under different Divisions of the local P. W. D. to the following effect:

A tender having been invited for executing a work namely construction of 2 Nos. sheds and platforms attached to the prefabricated food storage godown at Arundhutinagar, Agartala the accused submitted a tender and the same was accepted by the competent authority concerned on 2-8-61. After the acceptance of the tender a work order was issued in favour of the accused petitioner on 30-8-01. As per terms of the con­tract, in order to facilitate the same the accused was entrusted with the Government (P. W. D.) materials of the value of Ks. 6,662/limP. on different dates as detailed below:

8-9-61 - Cement 150 bags;

11-9-61 -- G. C. I. sheets 22 bundles.

11-9-61. - - P. J. Bricks 20,000 Nos.

11-9-61 - 950 Cft. of Bats.

The accused who was entrusted with the said materials had full dominion over the said proper­ties. The accused began the work and only exca­vated the trench in foundation. The work re­mained stopped for sometime for certain techni­cal things, after which the accused was duly in­formed to proceed with the work; but he did not. Several requesting letters were sent and verbal requests were made to the accused for executing the work. But he paid no heed to it nor did he return the materials with which he was entrusted. In the petition of complaint the allegation was made that the accused being entrusted with the properties as stated and having dominion over those properties dishonestly misappropriated the same in violation of the directions prescribing the mode in which such trust was to be discharged and thus he had committed an offence punishable under Section 40G I. F. C.

A prayer was also made in the petition of complaint for issue of a search warrant for recovery of the materials mentioned therein.

On the basis of the above petition of com­plaint the accused was duly summoned and was released on bail after his appearance by the Sub-Divisional Magistrate, Sliri S. R. Chakraborty. Thereafter the case having been transferred to Shri B. M. Choudhury, Magistrate 1st Class, 4 witnesses including the complainant P. W. 1 G. W. Wadhwani were examined on behalf of the prosecution before him. The case was then. withdrawn and transferred to the file of Shri N. C. Sinha, Magistrate 1st Class under the orders of the District Magistrate dated 14-11-63. On 7-12-G3 Shri N.. C. Sinha, Magistrate 1st Class framed a charge under Section 406 I. P. C. against the accused petitioner who pleaded not guilty. The charge framed is as follows :

"I. Shri Navadwip Sinha, Magistrate 1st Class, Sadar, hereby charge you Shri Ajoy Kumar Roy S/o Sri Rash Behari Roy resident of College Road, Shibnagar,, Agartala as follows:

That on 30-8-61 a work order for construc­tion of 2 Nos. sheds and platforms to the pre­fabricated food storage Godown at Arundhutina­gar was issued in favour of you by the Executive Engineer, Agartala Division I, after acceptance of the tender submitted by you, and for construc­tion of the sheds and platforms you were given (1) Cement - 150 bags on 8-9-61 (2) G. C. T. Sheets - 22 bundles, (3) P. J. bricks - 20,000 (4) 930 Oft. of bats on 1-9-61, the value of nil the goods given to you being Rs. 6,662.13 nP., and thus being entrusted with the materials for the construction of the works mentioned above you did neither do the work nor return the materials and thereby committed breach of trust; and that you thereby committed an

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