Offences under Sections 409 and 420 IPC cannot be charged together and there must be entrustment of amounts for an offence under Section 409 IPC to be made out.

Headnote:
CRIMINAL LAW - QUASHING OF FIR - OFFENCES UNDER SECTIONS 409 AND 420 IPC - CHARGING TOGETHER - NOT PERMISSIBLE - NO ENTRUSTMENT OF AMOUNTS WITH THE ACCUSED - NO OFFENCES MADE OUT - FIR LIABLE TO BE QUASHED.
Fact of the Case:

The petitioner was accused of offences under Sections 409 and 420 of the Indian Penal Code for allegedly not remitting the entire amount collected at various revenue collection centers while discharging duties as Junior Superintendent at Vellayambalam Water Works Sub Division.
Finding of the Court:

The court held that offences under Sections 409 and 420 IPC cannot be charged together and that there was no entrustment of amounts with the petitioner, hence no offences were made out.
Issues: Whether offences under Sections 409 and 420 IPC can be charged together.
Ratio Decidendi: The court relied on the principle that offences under Sections 409 and 420 IPC cannot be charged together and that there must be entrustment of amounts for an offence under Section 409 IPC to be made out.
Final Decision: The court quashed the FIR against the petitioner.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944 CRL.MC NO. 9426 OF 2022 CC 152/2022 OF CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM PETITIONER/ACCUSED ANITHAKUMARI.B.S, AGED 56 YEARS,SAYOOJYAM, K.R.A. 36, KAIMANAM, PAPPANAMCODE.P.O., THIRUVANANTHAPURAM, RETIRED JUNIOR SUPERINTENDENT, WATER WORKS (CENTRAL) SUB DIVISION, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM., PIN - 695018 BY ADVS.

B.S.SWATHI KUMAR ANITHA RAVINDRAN HARISANKAR N UNNI RESPONDENTS/STATE AND DEFACTO COMPLAINANT

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031

2 ANSAR, S/O SALI, RESIDING AT T.C. 32/984, DREAM HOUSE, MG NAGAR RESIDENTS HOUSE NO. 34, THURUTHUMOOLA WARD, PEROORKKADA, THIRUVANANTHAPURAM, THEN ASSISTANT EXECUTIVE ENGINEER, CENTRAL SUB DIVISION, VELLAYAMBALAM WATER WORKS, KERALA WATER AUTHORITY, MUSEUM, THIRUVANANTHAPURAM CITY, PIN - 695551 SRI. M P PRASHNATH - PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ZIYAD RAHMAN A.A., J.

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Crl.M.C.9426 of 2022 -------------------------

Dated : 6th January, 2023 ORDER

1.Petitioner is the accused in Crime No.342 of 2018 of Museum police station, which is now pending as C.C.152/2022 before the Chief Judicial Magistrate Court, Thiruvananthapuram. The offences alleged against the petitioner are under Sections 409 and 420 of the Indian Penal Code.

2.The prosecution case is as follows :-

The petitioner while discharging duties as Junior Superintendent at Vellayambalam Water Works Sub Division, with the intention of cheating Kerala Water Authority and to make undue financial gains, did not remit the entire amount collected at the Vellayambalam Water Works Sub Division Centre, Palayam and Pattoor Revenue Collection Centres on various dates and thereby committed the aforesaid offences.

3.Annexure-A is the FIR and Annexure-B is the final report. This Crl.M.C is filed for quashing all further proceedings pursuant to Annexure-B final report.

4.Heard Sri.Swathi Kumar, learned counsel for the petitioner and Sri.M.P.Prashanth, learned Public Prosecutor for the State.

5.Learned counsel for the petitioner contends that the offences punishable under Sections 409 and 420 are alleged against the petitioner and, according to him, both these offences cannot be charged together. It is also contended that, the materials produced on record and the allegations contained in Annexure-B final report, do not contain necessary indication as to the entrustment of the amounts with the petitioner. The aforesaid contention is raised mainly on the ground that, the duty of the petitioner is to endorse and counter-sign the challans furnished to her by the Officers concerned from the collection Centres and she could not have possibly conducted a verification with respect to the actual collection effected in the said Centres. Therefore, it is pointed out that, no offences could be alleged against the petitioner.

6.On the other hand, the learned Public Prosecutor would oppose the contentions advanced by the learned counsel for the petitioner.

7.After perusing the records and hearing the contentions from either side, I am of the view that to adjudicate the contentions raised by the petitioner, the examination of records produced before the trial Court are necessary. More over, the petitioner has approached this Court without taking recourse to the remedy available to her by approaching the trial Court and seek discharge. Since the petitioner has an ample remedy of discharge, and since she had not availed the said remedy, I am of the view that, at this juncture, the aforesaid contentions need not be considered. Therefore, it is only appropriate that the petitioner be relegated to avail the said alternate remedies.

In the above circumstances this Crl.M.C is closed, without prejudice to the right of the petitioner to approach t

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