The central legal point established in the judgment is the requirement of evidence of dishonest misappropriation or conversion for constituting an offence under Section 409 of IPC by a public servant.

S.K. Gupta, J.

1. Being aggrieved with the order dated 24.9.2013 passed by the Special Judge (Dacoity), Bhind, in Sessions Trial No. 184/2012 framing charge under Section 409 of IPC, the petitioner has preferred this Criminal Revision under Section 397/401 of Cr.P.C.

2. The brief facts of the case in short are that a report was lodged by complainant Harvilas Visariya that Sub-Divisional Officer, Mehgaon, vide order No.Q/Aa.Ka. 011 dated 8.11.11 suspended the petitioner who was Halka Patwari of village Gaheli, and directed the complainant vide order No.Q/Aa.Ka./12/236/2.3.12 to take charge of aforesaid village. Thereafter, several times suspended Patwari Charan Singh was asked to handover the charge of village Gaheli in compliance of the aforesaid order, but he did not handover the charge. Hence, he has willfully disobeyed the order. On the basis of this report, Crime No. 21/12 was registered under Section 188 of IPC at police Station, Amayan, Distt. Bhind, and investigation was conducted. During investigation, it was found that petitioner is possessing some government documents illegally which were seized from his possession, hence, Section 409 of IPC was also added. After investigation, charge-sheet was filed under Sections 188 and 409 of IPC and vide impugned order, learned Special Judge, framed charge under Section 409 of IPC against the petitioner. Hence, this revision.

3. Learned counsel for the petitioner submitted that impugned order passed by the learned trial Court is contrary to law, therefore, it is liable to be set aside. He further submitted that ingredients for the offence under Section 409 of IPC are not made out. In continuation, he further submitted that learned trial Court before framing the charge did not consider the documents available on record. In addition, it is also submitted that prima-facie, from the available record, it is clearly established that if the evidence and available record is considered in toto, then also charge under Section 409 of IPC could not be framed and the same is liable to be quashed. It is also submitted that admittedly petitioner was suspended on 08.11.2011 and charge-sheet was not issued at that time. Therefore, in view of Section 9(5) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, suspension was automatically revoked. Word "automatic" has been defined and mentioned in the rules itself. Because revocation is automatic, therefore, for that purpose no separate order from the competent authority is required. Once revocation is automatic, it would be deemed that service of the petitioner was continued w.e.f. 23.12.2011 and prior to it, there was no FIR at all. In the entire FIR and statement, there was no averment that petitioner has used or manipulated the record. It is also submitted that on the basis of record, it is clearly established that initially there was a simple complaint under Section 188 of IPC. It is alleged that the petitioner has not handed over the charge of the post of Patwari. As far as giving charge is concerned, there was no action at all and at the most if we accept the contention of the complainant, it was a case of section 188 and that is why complaint was filed. The complaint was also based on malafide because the order of revocation of suspension was passed by this Court on 02.05.2012, therefore, intentionally FIR was filed thereafter. When the order was passed and petitioner created pressure for joining, at that time only section 409 of IPC was added that too without any documentary or oral evidence. Hence, he prayed that charges framed against the petitioner be set aside and petitioner be discharged from the charges under Section 409 of IPC.

4. On the other hand, learned Panel Lawyer has fully supported the impugned order of lower Court and submitted that there is prima-facie evidence available on record for framing the charge under Section409 of IPC against the petitioner. He further submitted that there is