The central legal point established is that for the offence under Section 409 I.P.C. to be proved, it is necessary to establish that the accused had criminal intent and domain over the misappropriated funds.

1. - This leave to appeal is directed against the order dated September 22, 1990, passed by the Munsif and Judicial Magistrate, Rundi, by which the learned Magistrate acquitted the accused-respondent Shyam Lal of the offence under Section 409 Indian Penal Code.

2. Accused Shyam Lal was tried for the offence under Section 409 Indian Penal Code. The case against the accused was that while he was working as a clerk in the Registration Branch of the Tehsil Office, he recovered #2352; 2,172.25p. as the registration fee and misappropriated the same and further he recovered the amount of #2352; 30,812.50 p. as the registration fees, which was deposited by him late in the Treasury. During the trial, the prosecution produced 8 witnesses in support of the prosecution case. The accused did not examine any witness. The case of the prosecution was, thus, that the accused contravened the provisions of Rule 74(2) of the Registration Rules and kept the amount of the registration fee, received by him, with him and not deposited the same in the Treasury immediately after the recovery, but deposited afterwards. The learned Magistrate, after trial, came to the conclusion that though the amount was recovered by him, but it was not kept by him and as the Tehsildar and the clerk concerned were required to deposit the amount in the Treasury and as there is no evidence on record regarding retention of the amount by the accused, he, therefore, acquitted the accused-respondent of the offence under Section 409 I.P.C. It is against this judgment, acquitting the accused-respondent that the present leave to appeal has been filed.

3. I have heard the learned Public Prosecutor and the learned Counsel for the accused-respondent.

4. It is not in dispute that the accused at the relevant time, was working in the Registration Branch of the Tehsil Office and he recovered the registration fees, which was not deposited immediately after the recovery. The case of the accused is that the amount so recovered was not kept by him, but it was kept by the Tehsildar, who is the person Incharge of the Cash Section.

5. For proving the offence under Section 409 Indian Penal Code, three conditions are necessary to be proved, (i) that the accused is a public servant; (ii) that he, in such a capacity, was entrusted with the money or has a domain over it, and (iii) that he committed criminal breach of trust in respect of it. If any of these three conditions is not fulfilled, the offence under Section 409 I.P.C. does not stand proved. Merely because the accused recovered some amount but deposited the same late, will not make the accused guilty for committing the offence under Section 409 I.P.C. Temporary retention or late payment of money without something more, will not bring the act of the accused under Section 409 I.P.C. From the evidence produced by the prosecution, it is proved that after the recovery, the amount did not remain with the accused-respondent and, therefore, no offence under Section 409 I.P.C. has been committed by the accused. The learned lower Court rightly acquitted the accused-respondent of the offence under Section 409 I.P.C. According to me, the ingredients of the offence under Section 409 I.P.C. have not been made out and the learned lower Court was perfectly right in acquitting the accused-respondent. No interference in the order, passed by the learned lower Court, is called-for. ,

6. In the result, the leave to Appeal, filed by the appellant is, therefore, dismissed. The leave praved for is refused.Appeal dismissed.

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