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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 651 of 2004

An application under Sections 397 and 401 of the Code of

Criminal Procedure, 1973.

---------------

AFR

Bhabani Shankar Choudhury ...… Petitioner

-Versus-

State of Odisha

...…. Opp. Party

Advocate(s) appeared in this case :-

_______________________________________________________

For Petitioner

:

M/s. S.K. Mund, D.P. Das, J.K.

Panda, P.K. Ray & S. Panigrahi,

Advocates

For Opp. Party :

Mr. S.K. Mishra,

Addl. Standing Counsel

_______________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

20^th June, 2022

SASHIKANTA MISHRA, J.

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

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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 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

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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

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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 fi