In one of my case u/s. 406, 420 r/w 34IPC, charges have been framed & immediately the de-facto complainant filed a petition u/s.173(8) Cr.P.C.. & for addition of section 409 of IPC, following which the Metropolitan magistrate forwarded the petition for the say of Public prosecutor and in reply Ld.P.P mentioned to call the Investigation Officer personally and expain the reason for his faults but Investigation Officer did'nt turn up and unfortunately 173(8) was allowed (Application for section 409 IPC was turned down) by the magistrate on the grounds catered by the complainant's lawyer that ARTICLES of HALF the AMOUNT of COMPLAINT was recovered from the accused custody and the remaining was not recovered by the investigating officer from the peoples who has given statements that they have received the disputed goods and paid for it. Re-investigation is in process from last 9 months no new stone was turned by the earlier IO for initial 7months and a new IO was appointed 2 months back. In a recent court date, the new Officer has filled his say stating that he has Re-recorded the statements of the earlier person who has accepted to have received the goods, and recovery is not possible from these persons since they have mixed the articles with the their own stock & retailed it. But he has also Re-recorded the complainant's Statement and according to him there are few more names to whom the disputed articles have been sold. The new investigating officer wants to examine them too and a date of after 3 months was given as demanded by PP & complainants lawyer.
In the matter explained SUPRA , chargesheet does'nt contain a single paper as an evidence attached. Whereas, the complainants have mentioned in their statement that they have served the copies of approval note (Signed by accused) to the Officer. Now in these circumstances one should file an application for Memorandum of Articles, or to not to opt for this as if they have not served the copy of evidence it will be a positive point for accused while evidence cross & if accused are offering them to file evidence then it is like accused side are giving them a chance to strengthen the case of prosecution. ?
The opposite parties are having clear intension of applying Section 409IPC after the recovery/discovery of further investigation, there is no agreement (between accuse & complainants)of merchandising or agency, in the initial complaint it is written to apply section 406,420,120B & 506(ii) r/w 34IPC, but police have registered the case under section 406 420 r/w 34IPC, now since it is clear that initially the offence was not made out under section 409 IPC, & now they have filled the application stating that according to the chargesheet the role of accuse is shown that he has misappropriatedly used the articles taken on approval for his personal gain and acted as an agent, so section 409IPC should be induced. Whereas in their charge sheeted statement and complaints they have said that they knew accuse as a Trader & were trading with him, is it possible to add such section by the new officer depending upon their new story directed & produced by the de-facto complainant.