IMPORTANT POINT
To sustain charges under IPC Sections 409 and 420, clear evidence of entrustment, dishonest intention, and deception is essential, which was not established in this case.

ORDER :

(A. Badharudeen, J.)

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure by the sole accused in C.C.No.315 of 2016 on the files of the Judicial First Class Magistrate Court (Temporary), Sasthamcotta, arose out of Crime No.1102 of 2010 of Sooranadu Police Station, seeking the relief to quash Annexures A1 FIR, A4 final report and further proceedings in the above case.

2. Heard the learned counsel for the petitioner and the learned counsel for the defacto complainant as well as the learned Public Prosecutor in detail. Perused the records available and the decisions placed by the learned counsel for the petitioner.

3. The prosecution case is that the accused, who was appointed as the power of attorney holder of the defacto complainant to manage the day-to-day affairs of SPMUP School, Ayikunnam, exceeded the power he was given as the Power of Attorney Holder and appointed one Rajeev.V, as Peon on 11.06.2007 and obtained Rs.6 lakh from him. The further allegation is that he also misappropriated gold ornaments weighing 90 grams entrusted by the defacto complainant to arrange air ticket for her by pledging the same for excess amount and thereby he committed the offences punishable under Sections 409 and 420 of the Indian Penal Code (`IPC’ for short).

4. While seeking quashment of the crime, the learned counsel for the petitioner would submit that the entire allegations are false. According to the learned counsel for the petitioner, admittedly the defacto complainant appointed the petitioner as a power of attorney holder to manage the school and as per the power of attorney executed by the defacto complainant in favour of the petitioner, he was authorised to make appointments also. Therefore, the appointment is perfectly justifiable and none of the offences would attract. However, the learned counsel fairly conceded that even though on reading the power of attorney, power of appointment also was given, as per Annexure A7 judgment in W.P(c).No.25919/2007 on 30.06.2009 this Court found that the power of attorney executed by the defacto complainant in favour of the petitioner did not confer the power to make appointments. In view of Annexure A7 judgment in W.P(c).No.25919/2007, the contention raised by the petitioner that he was given power of appointment would not succeed.

5. In addendum, it is submitted by the learned counsel for the petitioner that even when the whole allegations are taken as a gospel of truth, offence under Section 409 of IPC would not attract. According to the learned counsel for the petitioner, the ingredients to attract Section 409 of IPC is not made out, prima facie. Regarding the allegation as to commission of offence under Section 420 of IPC, it is submitted by the learned counsel for the petitioner that initially the allegation of the defacto complainant was that the accused pledged 90 grams of gold ornaments for the purpose of obtaining air ticket in excess of the amount required and misappropriated the money. But later the statement of the defacto complainant is that after her arrival from abroad when she had given money to release the pledged gold ornaments, the accused, after receiving the money, did not utilise the same for the said purpose and thereby cheated her. Since the allegations regarding commission of offence under Section 420 of IPC are contrary in the above line, the said offence also would not attract. The learned counsel placed decision of the Apex Court reported in [2012 KHC 4612 : 2012 (10) SCALE 299 : AIR 2013 SC 181 : 2012 (10) SCC 741 : 2013 (1) SCC (Civ) 212 : 2013 (1) SCC (Cri) 120], Geeta Mehrotra and another v. State of U.P and another, to contend that when the FIR doesn’t disclose specific allegations as to commission of the offences, quashment of the FIR is liable to be allowed. Another decision reported in [2012 KHC 4418 : 2012 (8) SCC 547 : AIR 2012 SC 3242 : 2012 CriLJ 4317], Sadhupati Nageswara Rao v. State of Andhra Pradesh,