Mir Alfaz Ali, J.

1. This revision is directed against the judgment and order dated 15.05.2009 passed by the learned Additional Sessions Judge, FTC, No. 2, Kamrup in Crl. A. No. 49/2008 arising out of GR Case No. 2859/2003

2. The petitioner was convicted by the learned Chief Judicial Magistrate, Kamrup under Section 409 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs. 5000/- with default stipulation. The appeal preferred by the petitioner stood dismissed.

3. The brief facts which may be relevant for disposal of this revision are that the petitioner was working as Assistant Executive Engineer, Udalguri Electrical Sub-Division. He was sent to Central Store at Guwahati of the Electricity Department for collecting some electrical articles. He took delivery of the articles from the Central Store, Guwahati at Ulubari and Kahilipara, but while proceeding to Udalguri, some of the articles were unloaded and kept in his residence at Guwahati. Having come to know about the said facts, the Executive engineer lodged an FIR, on the basis of which, police registered a case being Dispur P.S. Case No. 137/2003 under Section 406/379 IPC and on completion of investigation, charge sheet was laid against the petitioner. Eventually, the petitioner stood trial for offence under Section 409 IPC and was convicted and sentenced as indicated above.

4. Mr. P. Kataki, learned counsel for the revision petitioner and Mr. B.B. Gogoi, learned Addl. P.P., Assam were heard.

5. Learned counsel for the revision petitioner, Mr. P. Kataki submits that conviction and sentence of the petitioner under Section 409 IPC was illegal and improper as prosecution has not been able to prove the factum of "dishonest misappropriation" on the part of the petitioner. Further contention of the learned counsel for the petitioner was that the defence evidence adduced by the petitioner was ignored by both the courts below and recorded the conviction and sentence of the petitioner mechanically.

6. During examination under Section 313 Cr.P.C., the petitioner admitted that he took delivery of the electrical articles from the store for the purpose of taking to Udalguri. He also admitted that some of the articles were kept at his residence. However, he took a defence plea in his examination under Section 313 Cr.P.C., that the truck hired for transporting the articles was a small one and after loading the articles, the driver of the truck was reluctant to proceed with such heavy load as the truck was overloaded. The driver requested him to reduce the load as the condition of the road to Udalguri was not good. Upon request of the driver, the petitioner informed the Executive Engineer that because of the excessive load, some articles were kept in his residence to be taken on the next day. The petitioner also examined defence witnesses in support of his defence that he had no intention to misappropriate any articles entrusted to him. Therefore, the factum of entrustment of the articles of the Electricity Department with the petitioner was not disputed. That some articles were left in the residence of the petitioner at Guwahati and later on seized by police was also not disputed. The only argument put forward by defence was that the petitioner left the articles in his residence on request of the driver, to reduce the load, as the truck was overloaded and he had no criminal intention to misappropriate the articles.

7. The petitioner was convicted under Section 409 IPC for the offence of criminal breach of trust. In order to establish a charge under Section 409 IPC, prosecution needs to prove the following facts.

(i) Accused was a public servant or banker, merchant, factor, broker, attorney or agent

(ii) He was any manner entrusted with property, or with any dominion over property

(iii) The said property was entrusted to him in the capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent,

(iv) The accused commi