1. - Instant revision u/s. 397/401 of the Code of Criminal Procedure is directed against the order dated 29.10.2002 passed by the Chief Judicial Magistrate, Nagaur framing charges against the petitioner for offence u/s. 409 IPC.

2. Briefly stated the facts of the case are that the District Transport Officer, Nagaur a First Information Report at Police Station alleging inter alia that petitioner herein while functioning as Cashier during the period 1.4.1985 to 31.3.1986, out of the revenue collection did not deposit Rs. 23,857.37 and thereby embezzled the said amount. On this information police registered a case for offence u/ss. 406 & 409 IPC and proceeded with investigation. Police found that on certain occasions, petitioner could not deposit the amount due to over-work but the said amount was deposited before the FIR was lodged. Police forwarded the Final Report to the Court in favour of the petitioner. However, learned Magistrate took cognizance against the petitioner for offence u/s. 409 IPC.

3. I have carefully gone through the Final Report forwarded by the police running in 11 pages. It was found that due to levy of one time tax, there was heavy burden of work on the Cashier and this led to certain clerical mistakes on different occasions. Whenever the shortage was found on verification, petitioner himself subsequently deposited the said amount. Thus, in the opinion of the police, it was a case of temporary detention of amount which does not constitute an offence u/s. 409 IPC.

4. Having read the Final Report forwarded by the police, I am satisfied that it is a case of temporary detention of amount. A close scrutiny of record also shows that there has been temporary detention of amount without dishonest intention. It is not in dispute that even before the filing of First Information Report, not a single penny was retained by the petitioner herein. Thus, in absence of intention of detention of amount dishonestly, the essential ingredients of offence u/s. 409 IPC are not satisfied. Thus, continuance of proceedings against the petitioner for offence u/s. 409 IPC is abuse of process of Court. The learned Magistrate has committed error in framing charges against the petitioner for offence u/s. 409 IPC.

5. Consequently, the revision petition is allowed. The order of Chief Judicial Magistrate, Nagaur dated 29.10.2002 framing charges against the petitioner of offence u/s. 409 IPC is quashed and set aside.Petition allowed.

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