The main legal point established in the judgment is the interpretation of the term 'clerk' and 'servant' under section 408 of IPC and the requirement of control or dominion over the entrusted property for the offence of criminal breach of trust.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. The petitioner in the present revision is an accused in GR Case No. 330 of 1995 of the Court of learned Chief Judicial Magistrate, Sundargarh charged for the offence under section 408 of IPC. The said case corresponds to Hemgir P.S. Case No. 32 of 1995. In the present revision, he has challenged the order dated 01.09.2004 passed by learned trial court in framing charge under section 408 of IPC against him.

2. The prosecution case, in brief, is that a complaint was lodged before the Hemgir Police Station by one Manoranjan Sahu, BDO of Hemgir Block alleging that the petitioner, who was the president of Large-sized Multipurpose Cooperative Society (LAMPCS) of Gopalpur, misappropriated Government money to the tune of Rs. 2 lakhs meant for IRDP beneficiaries along with one Khyama Sagar Singh, the Ex-Managing Director of the said Society. Investigation was thereafter conducted into the allegations and upon completion of the same, charge-sheet was submitted against the petitioner and the said Khyama Sagar Singh under Section 408 of IPC. The Court below after examining the allegations and the materials placed by the prosecution including statement of the witnesses examined by the investigating officer, held that there is ground for presuming that the accused persons have committed the offence under section 408 of IPC and accordingly framed charge under the aforementioned Section against them.

Questioning the correctness of the order framing charge as aforesaid, the petitioner has approached this Court in the present revision.

3. Heard Sri H.K. Mund, learned counsel for the petitioner and Sri S.K. Mishra, learned Additional Standing Counsel for the State.

4. Sri Mund has made a two-fold argument: Firstly, being an elected president of the society the petitioner is neither a clerk nor a servant and therefore, Section 408 of IPC is not attracted and Secondly, entrustment of property/money being the most essential ingredient of the offence under section 408, the same not having been proved, prime facie, framing of charge by learned Court below is not legally tenable.

5. Sri Mishra, on the other hand contends that being elected as the President of the Society does not mean that the Society does not exercise any control over the petitioner, rather he remains responsible to the society. Therefore, there is a fiduciary relationship between the petitioner and the society for which, he must be treated as a servant of the Society. As regards proof of entrustment, it is contended that several witnesses examined by the I.O. have clearly and unequivocally stated about the role played by the petitioner along with the other accused in misappropriating Government money. Therefore, according to Sri Mishra, learned Court below has rightly framed charge under section 408 of IPC against the petitioner.

6. As regards the question of framing charge, it is trite law that at that stage the Court has to form a presumptive opinion regarding commission of the offence but is not expected to delve deep into the evidence to see whether adequate materials exist to return a finding of guilt against the accused. In other words, all that the Court is required to do at the stage of framing charge is to sift through the evidence and materials placed by the prosecution and to form a prima-facie opinion as to whether the same suggest commission of the alleged offence by the accused or not.

7. Coming to the case at hand, as already stated, it is contended that the basic ingredients necessary to constitute the offence under section 408 of IPC are absent. According to Sri Mund, the petitioner was elected as President of Gopalpur LAMPCS. As such, he was required to preside over the meetings and was responsible for policy decisions for smooth management of the institution. Therefore, he is neither a clerk nor a servant of the society.

8. For better appreciation of this contention, it would be proper to examine the relevant provision of law as quoted he