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6. The other grounds that the offence u/S 407 IPC may be made out, but not u/S 409 IPC is now taken up.

6.1 Before embarking upon the comparative analysis of the offence u/S 407 and 409 IPC, it is essential to reproduce both these provisions as follows:

407. Criminal breach of trust by carrier, etc.--Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(i) Section 407 IPC relates to breach of trust inter-alia by a warehouse keeper to whom entrustment of property is made and the said trust is breached. The punishment provided u/S 407 IPC is a maximum of 7 Years Imprisonment with fine.

(ii) However, Section 409 IPC punishes criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney or agent to whom any property or it's dominion is entrusted and he commits breach of such trust and such offence attracts punishment up to Life Imprisonment or with Imprisonment which may extend to 10 years alongwith fine. 6.3 The basic difference between the above said two Sections is that Sec 407 inter-alia relates to warehouse keeper and prescribes lesser punishment of a maximum of 7 Years Imprisonment with fine, but Sec 409 IPC relates to public servant, banker, merchant, factor, broker, attorney or agent and prescribes higher punishment of imprisonment for life or with imprisonment for a term which may extend to 10 years with fine.

9.2 Framing of charge thus gives a clear understanding and an opportunity to the accused to know the exact offence for which he is tried, so that he can prepare his defence in advance. In short, the charge specifies the rules within which the game of the trial is to be played. Thus, the precise framing of charge assumes relevance.

10. In the instant case, the act of breach of trust by a warehouse keeper is a separate and distinct offence attracting a separate punishment u/S 407 IPC which prescribes for a maximum punishment of seven years of imprisonment with fine. 10.1 However, despite there being a specific offence in regard to which breach of trust committed by a warehouse keeper is punishable u/S 407 IPC, the trial Court has misdirected itself by framing the charge u/S 409 of IPC.

11. This Court can understand the predicament of the petitioner of having no remedy under the Cr.P.C. for seeking alteration of charge as contemplated by Section 216 Cr.P.C., since the said power can be exercised exclusively by the Court suo motu as laid down by the Apex Court in the case of P. Kartikalakshmi Vs. Sri Ganesh and Another reported in (2017) 3 SCC 347.

12. Accordingly, this Court is of the considered view that though the principal offence of criminal breach of trust is prima- facie made out against the petitioner, but the charge u/S 409 IPC framed against the petitioner is vitiated as the offence alleged to be committed by the petitioner specifically falls within the purview of Sec 407 of IPC.