Delhi District Court
State vs . Dambar Singh on 22 February, 2020
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IN THE COURT OF SH. VIVEK KUMAR AGARWAL, MM04, SOUTH DISTRICT,
SAKET COURT, NEW DELHI
STATE VS. Dambar Singh
FIR NO: 62/06
P. S Sangam Vihar
U/s 409 & 477 A IPC
Crc No. 2034723/16
JUDGMENT
Sl. No. of the case : 286/2
Date of its institution : 24.07.2006
Name of the complainant : Sh. S.P. Singh
S/o Late Harcharan Singh
R/o H. No. 924A. Raj Nagar
PartII, Palam Colony,
New Delhi.
Date of Commission of offence : 26.06.2006
Name of the accused : (1) Dambar Singh
S/o Late Khushi Ram
R/o H. No. 12/3/43, Meetha Pur,
Digitally signed Extension, Badapur, New Delhi.
by VIVEK
VIVEK KUMAR
(2) Ved Prakash
KUMAR AGARWAL
S/o Sh. Dhara
Date:
AGARWAL 2020.02.29 R/o H. No. 251, Devli Village,
16:56:23 +0530 New Delhi (proceedings stood
abated vod 15.12.2011).
Offence complained of : 409/477A/34 IPC
Plea of accused : Not Guilty
State Vs. Dambar Singh Case No.2034723/16
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Case reserved for judgment : 15.02.2020
Final Order : Accused Dambar Singh is
acquitted u/s 409 & 477 A IPC
Date of judgment : 22.02.2020
1. Before proceeding with the facts of the present case, it is important to observe that previously present case was decided vide judgment dated 12.12.2017 passed by the then Ld. Predecessor of the court resulting into acquittal of the present accused namely Dambar Singh, however the said judgment was set aside and the matter was remanded back to the trial court by ld. Appellate court vide judgment dated 15.01.2019 with the liberty to the complainant to move application through Ld. APP for recalling of the required witnesses to exhibit/prove the documents already on record. Again trial court was directed to consider the said application and to record the statement of the accused u/s 313 CrPC after recording of evidence of prosecution and to decide the matter afresh.
FACTUAL MATRIX OF PROSECUTION CASE
2. The present case is prosecuted by the State against the accused persons for having committed the offences punishable u/s 409 & 477 A/34 IPC. The story of prosecution is that there was a post office in Talimabad functioning as a nondelivery, single handed, subpost office w.e.f 27.04.2004 and accused Dambar Singh was working as SubPost Master at the said post office and accused Ved Prakash was working as GroupD official in the said post office. That accused Dambar Singh was wholly and solely responsible for each and every nature of work and any type of transaction as SB/RD/TD/NSC/KVP made at said post office being the Incharge. That they both in furtherance of their common intention while being the public servants misappropriated the govt. money to the tune of Rs.2,49,000/ and more from the saving State Vs. Dambar Singh Case No.2034723/16 -3- bank accounts of the several depositors, after illegally withdrawing the same from their accounts and by also not crediting the money in the account of the post office, however entries were made in the passbook of the depositors. Again that they also issued the bogus passbook and made forged entries. Again that they with intent to defraud the account holders made false entries in the account books of the post office. That matter was reported by one S.P. Singh on behalf of Department of Post and present FIR was lodged.
3. On completion of investigation, chargesheet was filed on 24.07.2006 and subsequently FSL report was filed on 16.08.2007. Thereafter, supplementary charge sheet was filed on 15.04.2008. Cognizance of the offences was taken. Copies were supplied to the accused persons in compliance of Section 207 of Cr. PC.
CHARGE
4. Charge for offences under Sections 409/34 of IPC and 477 A/34 IPC was framed on 03.09.2008 in terms of order of even date by Ld predecessor of the Court against both the accused to which they pleaded not guilty and claimed trial.
5. Meanwhile coaccused namely Ved Prakash died and proceedings against the accused were abated vod 15.12.2011.
PROSECUTION EVIDENCE
6. To connect arraigned accused with the offences charged, prosecution has examined in all 17 witnesses i.e., ASI Om Prakash (PW1), Sh. S.P. Singh (PW2), Smt. Shabra Begum (PW3), Smt. Sunita Devi (PW4), Smt. Satto Devi (PW5), Smt. Anita Walia (PW6), Ms. Jyoti Verma (PW7), Sh. Shiv Nandan (PW8), HC Mukesh Singh (PW9), Ms. Nafisa (PW10), Sh. Sonu (PW11), Retired SI Kalu Ram (PW12), ASI Ugrasen (PW13), Retired SI Balbir (PW14), Retired Inspector Ishwar Singh (PW15), Sh. Umar Mohd. (PW16) and Sh. Radhey Shyam Gupta (PW17). All the witnesses were cross examined State Vs. Dambar Singh Case No.2034723/16 4 on behalf of the accused.
7. After matter was remanded back, PW3 namely Shabra Begum and PW17 Radhey Shyam were recalled u/s 311 CrPC and were again examined in chief and were also cross examined on behalf of the accused. Again prosecution has also relied upon several documents proved in testimony of these witnesses, which were taken on record as Ex.PW1/A, Ex.PW1/B, Ex.PW2/A, Ex.PW3/A, Ex.PW3/B to Ex.PW3/D, Ex.PW3/E & Ex.PW3/F, Ex.PW4/A, Ex.PW5/A, Ex.PW7/A, Ex.PW8/A, Ex.PW9A & Ex.PW9/B, Ex.PW10/A, Ex.PW11/A, Ex.PW12/A, Ex.PW12/B, Ex.PW12/C, Ex.PW12/D, Ex.PW12/E, Ex.PW12/F, Ex.PW12/G, Ex.PW12/H, Ex.PW14/A, Ex.PW14/B, Ex.PW14/C and Ex.PW15/A. Certain documents were taken on record after matter was remanded back as Ex.PW15/A1 to Ex.PW15/A24, as mentioned in order dated 20.11.2019. Again the FSL report was taken on record as Ex.PX, as mentioned in order dated 19.10.2019. Even otherwise the FSL report is admissible without any further evidence, as provided u/s 293 CrPC.
STATEMENT OF ACCUSED
8. Thereafter accused was examined under Section 313 Cr. P.C on 06.12.2017. His additional statement u/s 313 CrPC was recorded on 07.01.2020. All incriminating material in evidence was put to the accused. Accused admitted that he was working as SubPost Master during the relevant period, however he stated that he was falsely implicated and he had not committed any criminal breach of trust or misappropriation of funds of the Post Office. He further submitted that entries in the ledger as well as in the passbook of the depositors were made by coaccused Ved Prakash (since deceased).
DEFENCE EVIDENCE
9. Accused chose not to lead any evidence in his defence.
State Vs. Dambar Singh Case No.2034723/16
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ARGUMENTS
10. I have heard the arguments of Ld. APP for the State, Ld Counsel for the complainant; Ld. Counsel for accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth. Written submissions filed on behalf of complainant through Ld. APP for the State have been also perused minutely.
11. Ld. APP for the State assisted by Ld. counsel for the complainant firstly has submitted the facts of the present case in detail. It is submitted that present accused was working as SPM at Talimabag Post Office and coaccused was working as Group D official in the said post office during the relevant period that being Incharge of the said post office, accused was wholly and solely responsible for every nature of work and transaction made at said post office. That on 03.01.2006 on receipt of public complaints regarding account no. 4000154, 4000292 and 4000817 alleging fraud, the present case had come to light and it was revealed that the accused had made entries of deposits in the passbook, long book and SB ledger, however same were not incorporated in the list of transactions and did not account for in post office accounts. Again that he made withdrawal from the accounts with the forged signatures of depositors and in many cases he accepted deposits however no entries in SB ledger were made and he also falsified entries in the long book. Again bogus passbooks were also issued to some account holders. That misappropriation was done for sum of Rs.5,04,750/ pertaining to 34 accounts. It is further argued that PW17, PW7, PW10, PW11, PW3 & PW16 have clearly deposed against the present accused regarding misappropriation and they have proved the relevant documents. Reliance is also placed upon the provision of Section 114 of Indian Evidence Act and also on the authority of 'State of HP v. Karanvir (2006) AIR (SC) 2211'. Relying upon the said authority, it is argued that prosecution has successfully proved its case regarding entrustment as public servant by State Vs. Dambar Singh Case No.2034723/16 6 the accused and on the other hand, accused has failed to discharge his burden and therefore, he is liable to be convicted for the offences punishable u/s 409 & 477 A IPC.
12. On the other hand, Ld. Defence Counsel has argued that none of the witnesses examined on behalf of prosecution has deposed that it was the present accused, who had made the alleged withdrawals or had misappropriated their money. Again PW3 & PW17 have admitted their own signatures on the withdrawal forms and therefore there is no question of any forgery. Again as per the FSL report, nothing has been opined that it was the present accused who had signed the said withdrawal forms. It is further argued that as per prosecution, the amount of Rs.5,04,750/ was misappropriated, however in the document Ex.PW2/A, same has been mentioned as Rs.2,49,000/. Lastly, it is submitted that the case has been launched against the present accused only to delay the proceedings of reinstatement of the accused in the Department. Accordingly, Ld. Defence Counsel has prayed for acquittal of accused.
RELEVANT LAW
13. Section 409 of IPC reads as under:
409. Criminal breach of trust by public servant, or by banker, merchant or agent Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property,shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 477A of IPC reads as under:
477A. Falsification of accounts.--Whoever, being a clerk, officer or servant, or State Vs. Dambar Singh Case No.2034723/16 -7- employed or acting in the capacity of a clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation.--It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed.
14. The necessary ingredients of Sec. 409 IPC are as under:
1. The accused must be a public servant;
2. He must have been entrusted in such capacity the property; and,
3. He must have committed the breach of trust in respect of such property.
In the case of Radha Pisharassiar Amma vs State of Kerala, (2007) 13 SCC 410, it was inter alia held that for an offence under Section 409 of IPC it must be proved that the person entrusted with the property, or any dominion over property in his capacity as a public servant committed criminal breach of trust in respect of such property as defined in Section 405 of IPC. The evidence must show that such person either dishonestly misappropriated or converted to own use or dishonestly used or dishonestly possessed that property in violation of directions of law prescribing the mode in which such trust is to be discharged.
State Vs. Dambar Singh Case No.2034723/16 -8- In the case of State of H.P vs Karanvir, (2006) 5 SCC 381, it was held that to prove the offence of criminal breach of trust the initial burden is on prosecution to prove entrustment of the property to the accused and once such initial burden is discharged by prosecution, onus would lie on accused to prove how the property entrusted to him was dealt with by him and accordingly the actual manner of misappropriation of the property by accused need not be proved by the prosecution.
It has been held in the case of Ram Narain Poply vs CBI, AIR 2003 SC 2748 that deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any person shall retain any property, need not be by express words, but it may be by conduct or implied in the nature of the transactions itself. Also was held therein that to constitute an offence of criminal breach of trust there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of legal direction or of any legal contract and the misappropriation or conversion or disposal must with a dishonest intention. Also was held that when a person misappropriates to his own use the property that does not belong to him, the misappropriation is dishonest even though there was an intention to restore it at some future point of time.
Again, it has been held in the case of Mustafikhan vs State Of Maharashtra on 4 December, 2006 that in order to sustain a conviction under Section 409 IPC the prosecution is required to prove that (a) the accused, a public servant was entrusted with property of which he has duty bound to account for, (b) the accused had misappropriated the property. That, where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.
State Vs. Dambar Singh Case No.2034723/16
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"It was further observed : It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused".
APPRECIATION OF EVIDENCE
15. The case of the prosecution is based on oral, documentary as well as on circumstantial evidence. Let this evidence be appreciated in wake of requirements of charge u/Sec. 409 IPC as well as the requirement of charge u/s 477 A IPC to be proved and I am of the view that there are two points for determination in this regard, as discussed follows:
Point no. 1 Whether the accused was a public servant and was entrusted with property of which he has duty bound to account for?
16. The fact that accused was a public servant and was working as Subpost Master (hereinafter called as "SPM") in Talimabad post office during the alleged period of offence has never been in dispute. Same has not only been proved from oral testimony of PW2 namely S.P. Singh, who was working as ASP, SubDivisionI in that period but also by number of witnesses including PW3 (her examination inchief dated 07.12.2019), PW7, PW11 and also by PW17. Again, same has been further corroborated from the statement of the accused recorded under section 313 CrPC dated 06.12.2017 wherein he clearly admitted that he was working as SPM during the State Vs. Dambar Singh Case No.2034723/16 10 relevant period. There is no dispute regarding the legal position that the statement u/s 313 CrPC can be certainly used for the purpose of corroboration. Accordingly, the primary and very basic ingredient of Section 409 IPC is clearly established.
17. Now coming to the second aspect of the point No. 1, it is to observe that PW2 , who was posted as ASP Sub Division I in the relevant period and was senior to the accused, has deposed in clear terms that present accused was working as SPM and was Incharge of sub post office and the nature of his duties assigned to him were to look after the accounts of all accounts holders to receive money, to make entries in the various passbooks and also to issue new passbook etc to various customers. Same is further corroborated by testimony of PW3 dated 07.12.2019 wherein she deposed that accused used to be present in the post office. Again, PW7 has further deposed that she had opened her account at Talimabad post office with the help of accused Dambar Singh. Similarly, PW17 in his testimony dated 07.12.2019 has deposed in clear terms that he had given the withdrawal form in the post office to the present accused only. Again, presumption can be safely drawn under Section 114 of Indian Evidence Act on the basis of established office procedure that when the accused was the SubPost master in a SubPost office, he was certainly the incharge of office duties assigned to all the office and was responsible and accountable for all the material transactions in that office including of deposits, withdrawals, entries in that regard in the passbooks and ledger books and also for maintaining the accounts. It has nowhere been the case of the accused, put in crossexamination of either of the witness, that it was not he but co accused (since dead) namely VedPrakash who was the incharge of the Subpost office of Talimabad. Moreover, as per the case of prosecution, coaccused was working as GroupD official.
State Vs. Dambar Singh Case No.2034723/16 -11-
18. Even otherwise, the accused did not give any suggestion to deny the deposition of PW2 in this regard, as mentioned above. There was no impediment in the way of defence to put questions, if any relating the charge and accountability of the accused as SPM to the relevant witness PW2, since it was PW2, who was the senior of the accused and used to visit and enquire the SubPost Office of Talimabad. Since such questions, on such plea of defence were not put to PW2 for which no other evidence in defence was led nor brought on record nor proved, it could be safely presumed that if such questions were asked or any such evidence could have been gathered from any other source on these facts, the same would be unfavorable to accused in terms of Illustration
(g) of Section 114 of Indian Evidence Act.
19. Accordingly, this is clearly established that present accused being the SPM of Sub Office of Talimabad was entrusted with the property in terms of money of all the account holders with the Post office and was accountable to the customers/account holders on behalf of the Post Office.
In view of aforesaid discussion, Point No.1 is decided in positive against the accused and in favour of the prosecution.
Point No.2 Whether the accused had dishonestly misappropriated the property, entrusted to him?
20. On thorough and minute appreciation of evidence in this regard, it appears that prosecution has proved following facts in issue against the present accused: (I) That Radhey Shyam Gupta/PW17, who was maintaining his account bearing no.4000154 with Talimabad post office had deposited some amount in his account, however the amount of Rs.4,000/ was withdrawn from his account illegally. Same has been deposed by witness on oath and is further corroborated by the expert evidence in this regard. Said witness duly identified the specimen signatures Ex.PW17/B & State Vs. Dambar Singh Case No.2034723/16 12 Ex.PW17/C. The FSL report dated 13.08.2007, which is certainly admissible u/s 293 CrPC, clearly provides in para no.III that the person who had written the specimen signatures S5 & S6 (Ex.PW17/B & Ex.PW17/C) had not written the red enclosed signatures marked as Q1 & Q1/1. The signatures Q1 & Q1/1 are the signatures on the withdrawal form for withdrawal of money from the account of Radhey Shyam Gupta.
It is interesting to observe herein that the said witness had identified the signatures on these withdrawal forms to be his own in his testimony dated 07.12.2019, however I am of the view that said witness had identified these signatures only on the basis of his name and not as his signatures. It is to observe that a person may lie but circumstances do not. From the bare perusal by naked eyes, it can be seen that the signatures on the withdrawal form Ex.PW17/A are completely distinct in their flow and shape of the letters from the specimen signatures Ex.PW17/B and Ex.PW17/C. Again once the witness has admitted his specimen signatures and on the basis of these signatures, report has been given by the FSL, said report is certainly more reliable than the oral version of the said witness, which has been deposed after expiry of more than 13 years.
Again the said finding is further corroborated by the document Ex.PW15/A22 i.e. copy of ledger, which was proved by production of original and comparison with copy on record, wherein the entry of withdrawal of Rs.4,000/ dated 10.12.2005 from the account of Radhey Shyam Gupta is clearly mentioned. As discussed above, witness has deposed in clear terms that he had not withdrawn the said amount.
Not only this but again from the document annexed with Ex.PW15/A22 i.e. ledger entry of account of Radhey Shyam Gupta, it can be seen that overwriting has been made on the number '17600' and same has been written as '07600'. Judicial notice can be taken of the fact that there is no practice in banking to write the number starting with State Vs. Dambar Singh Case No.2034723/16 13 the number '0'. Accordingly, it is apparent that said number has been manipulated in the ledger account.
Accordingly, it is clearly established that from the account of Radhey Shyam Gupta, PW17 amount of Rs.4,000/ was withdrawn illegally by some other person but the depositor and a false entry as well as overwriting was made in this regard in the ledger account.
(II) That Jyoti Verma, PW7 had deposited Rs.80,000/ in her account on 01.06.2005 in Talimabad post office, however on 02.01.2006, she came to know that money was withdrawn by some person and also that accused Dambar Singh as not found in the post office. The said witness clearly disowned her signatures on the document Ex.PX1 & Ex.PX2 i.e. withdrawal forms. Again from the document Ex.PW15/A3 i.e. ledger account, which was duly proved after comparing with the original, the version of PW7 is further corroborated to the effect that on 01.06.2005, she had deposited amount of Rs.80,000/ in her account. From the same document, it can be further seen that amount of Rs.30,000/, Rs.30,000/ and Rs.20,000/ were withdrawn on 10.06.2005, 16.06.2005 & 24.10.2005 respectively. Witness clearly deposed that she had not withdrawn the said amount.
Accordingly, it is further established that from the account of Jyoti Verma, PW7 amount of Rs.80,000/ was withdrawn illegally by some other person but the depositor and a false entry was made in this regard in the ledger account.
(III) That there was an account of Nafisa i.e. PW10 in Talimabad Post office and amount of Rs.20,000/ was withdrawn by some other person from her account and not by her. Same can be further seen from the document Ex.PW15/A24 i.e. ledger account, which has been duly proved after being compared with the original, that amount of Rs.20,000/ was withdrawn from her account on 24.12.2005.
State Vs. Dambar Singh Case No.2034723/16
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Accordingly, it is further established that from the account of Nafisa, PW10 amount of Rs.20,000/ was withdrawn illegally by some other person but the depositor and a false entry was made in this regard in the ledger account.
(IV) That Umar Mohd and Shabra Begum i.e. PW16 & PW3 respectively had their joint account bearing account no.400459 at Talimabad Post office and they had deposited certain amount in their account, however subsequently money was withdrawn from their account by some other person and only Rs.4,000/ remained in their account and the money was withdrawn by some other person illegally.
Same has been deposed by witness on oath and is further corroborated by the expert evidence in this regard. Said witness duly identified her specimen signatures Ex.PW3/E & Ex.PW3/F. Now the FSL report dated 13.08.2007, which is certainly admissible u/s 293 CrPC, clearly provides in para no.III that the person who had written the specimen signatures S3 & S4 (Ex.PW3/E & Ex.PW3/F) had not written the red enclosed signatures marked as Q2 to Q4. The signatures Q2 to Q4 are the signatures on the withdrawal forms for withdrawal of money from the account of Shabra.
It is further interesting to observe herein again, as mentioned above that the said witness had identified the signatures on these withdrawal forms to be her own in her testimony dated 07.12.2019, however I am of the view that said witness had identified these signatures only on the basis of her name and not as her signatures. It is to observe that a person may lie but circumstances do not. From the bare perusal by naked eyes, it can be seen that the signatures on the withdrawal form Ex.PW3/A to Ex.PW3/C are completely distinct in their flow and shape of the letters from the specimen signatures Ex.PW3/E and Ex.PW3/F. Again once the witness has admitted her specimen signatures and on the basis of these signatures, report has been given by the FSL, said report is certainly more reliable than the oral version of the said witness, State Vs. Dambar Singh Case No.2034723/16 15 which has been deposed after expiry of more than 13 years.
Again the said finding is further corroborated by the document Ex.PW15/A12 i.e. copy of ledger, wherein the entry of withdrawal of Rs.30,000/, Rs.15,000/ & Rs.10,000/ dated 01.07.2005, 12.08.2005 & 20.08.2005 respectively from the account of Shabra is clearly mentioned. Again as deposed by PW3, amount of Rs.4175/ (about Rs.4,000/only) was left in her account.
21. Accordingly, in view of above discussion, it is clearly established that there was illegal withdrawal of money from the accounts of Radhey Shyam Gupta, Jyoti Verma, Nafisa as well as Umar Mohd and Shabra Begum and that false entries were made in this regard in the ledger account of the post office. Consequently, it is established that money of the account holders in the post office was dishonestly misappropriated and again that false entries were made in the ledger account of the post office.
22. Now the next question arises that it was the accused Dambar Singh only, who had committed the said offence of misappropriation and of making false entries. In this regard, before coming to appreciation of evidence on this point, let me advert o the law of evidence in this regard. The onus to prove the fact is always on the prosecution. In the criminal trial, the prosecution is duty bound to prove its case beyond reasonable doubt. This onus to prove never shifts. The prosecution can also not take benefit of the weakness of the defence of the accused. However, this proposition is subject to certain exceptions. For example, if the accused has taken the plea of alibi, this has to be proved by the accused. Similarly, if the accused takes the plea that his case falls within the general exception of Penal Code, the onus is upon the accused to prove the same. In the similar fashion,Section 106 of the Indian Evidence Act provides that if the act done is within the special knowledge of the accused, it is for him to prove the same. However, the rule of caution is that even in these cases, the prosecution is required to State Vs. Dambar Singh Case No.2034723/16 -16- prove its case prima facie and therefore, if there are certain circumstances which were in the special knowledge of the accused, then it is for the accused to come out and spell out those circumstances. Section 106 of IEA provides asunder :
"106. Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
However, section 106 IEA comes into play only after the prosecution has been able to prove prima facie case. If the prosecution has not been able to make out a prima facie case, accused cannot be asked to prove any particular fact which is within his knowledge. The principles underling section 106 can be summed up that initially the burden to prove the guilt beyond reasonable doubt always remain upon prosecution. If the prosecution has been successful in proving the fact from which a reasonable inference can be drawn regarding the existence of certain facts, then the accused is required to offer an explanation regarding such fact so as to set aside the reasonable inference being presented by the prosecution. The accused must offer an explanation which should be probable and satisfactory.
In Shambhu Nath Mehra Vs. State of Ajmer, AIR 1956 SC 404, the scope of section 106 of IEA was held as under :
"This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution State Vs. Dambar Singh Case No.2034723/16 17 and never shifts."
Perusal of the above said precedent makes it clear that prosecution has to lead evidence to substantiate its accusations, but if facts within the special knowledge of accused are not satisfactorily explained, it is a factor against the accused.
23. It is a settled proposition that the concept "beyond reasonable doubt" cannot be stretched too far. The whims and fancies of the accused cannot displace the facts proved by the prosecution in accordance with the provisions of IEA. The prosecution is not supposed to meet every hypothetical questions raised by the defence, if it is presumed to be so, it would amount to deflecting the course of justice.
In this regard, reference is also made to the case of M.G.Agarwal Vs State of Maharashtra, reported in AIR 1963 SC 200. in that case, the Constitution Bench considered the principles of Criminal jurisprudence and law of evidence regarding the manner of proof of 'circumstances' or 'basic facts' and the basis on which circumstantial evidence could lead to the finding of guilt of the Accused and in that case, it is held as follows: "....it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of basic or of primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether the evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether the fact leads to an inference of guilt of the Accused person or not and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of State Vs. Dambar Singh Case No.2034723/16 18 the Accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated."
Similar view is taken in the cases of G.Parshwanath Vs State of Karnataka AIR 2010 SC 2914, Kishore ChandVsState of Himachal Pradesh, AIR 1990 SC 2140 and Balu Sonba Shinde Vs State of Maharashtra AIR 2002 SC 3137.
24. In view of the law laid down by the Apex Court, as observed above, it is clear that the requirement of 'proof beyond reasonable doubt' does not apply to proof of 'basic or primary facts' in Criminal Cases or to defences in Criminal Cases and that those facts can be proved in the ordinary way as explained in Section 3 of the Indian Evidence Act 1972. In order to show that the Accused is guilty of an offence, those proved facts must lead to an inference of guilt of the Accused beyond reasonable doubt and while drawing such an inference, the doctrine of benefit of doubt would apply.
25. In view of this legal position and also discussed above, once it has been established that the accused was a public servant and he was entrusted with the govt. money, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged accordingly. Moreover, it is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation State Vs. Dambar Singh Case No.2034723/16 19 given by the accused.
26. Now, in the given facts, when Point no. 1 has been decided against the accused and there is no dispute about the entrustment, burden completely shifted upon the accused to explain the withdrawal of money from the account of Radhey Shyam Gupta, Jyoti Verma, Nafisa as well as Umar Mohd and Shabra Begum and again regarding the false entries made in this regard in the ledger account of the post office.
27. To discharge the said burden, accused has not led even a single evidence either oral or documentary. Accused also did not appear himself in the witness box so as to depose his own version regarding the discharge of his obligation as SPM in the relevant period. Again, in cross examination of none of the witnesses anything has been suggested that it was not the present accused but some other person who had withdrawn the money from the account of the account holders. By merely giving a bald submission in his statement u/s 313 CrPC that it was the coaccused namely Ved Prakash (since deceased), who had made the alleged forged entries and illegal withdrawal; the accused, who was the wholly and solely responsible for all the transactions in the post office, cannot shrug his shoulders to avoid his liability.
28. It is to further observe in this regard that there is a famous legal maxim "nullus commodum capere potest de injuria sua propria", which means that no man can take advantage of his own wrong. It is a maxim of law, recognized and established, that no man shall take advantage of his own wrong. This maxim is based on elementary principles and has gained status in law and equity. Herein accused Dambar Singh was SPM of Talimabad Post Office and money of the account holders was deposited with him, he being the Incharge of the said post office, however neither their money was returned to them nor same was deposited by the accused with the post office. Rather the false entries were made in the accounts of post office. By simply taking the plea that State Vs. Dambar Singh Case No.2034723/16 20 it was the coaccused Ved Prakash, who was working as GroupD official, who had committed the misappropriation and made false entries, accused cannot be permitted to take advantage of his own wrong.
29. There is also another legal maxim "acta exteriora indicant interiora secreta" which means that acts indicate the intention. The previous intention of a person can be judged by his subsequent acts. Now, in view of the categorical assertion of PW2, PW7 & PW 11, when the fraud regarding withdrawal of money was revealed, accused was not found in his office and rather he had fled. As deposed by PW9, accused was arrested on 22.05.2006 and he was absconding since 04.01.2006 as clearly deposed by PW2. Accordingly, the said subsequent conduct of the accused further indicates his intention.
30. The plea on behalf of defence that most of the public witnesses had not deposed anything incriminating against the present accused do not hold water and per se cannot be accepted in view of evidence on record and facts proved, elicited above. Time gap of several years was there in between when the offence in question was committed and when evidence of prosecution was led. Human memory is short and no premium can be claimed for such fact.
31. It is to observe that entire focus of accused in the trial had been to demonstrate that it was coaccused Ved Prakash, who had committed the offence in question, however the accused failed to discharge his own burden by preponderance of probability from led prosecution evidence and defence evidence. No cogent evidence is borne out of record as to what actually was done with such entrusted money of the account holders, as discussed above, by the accused. Judging the dishonest intention of accused from his elicited acts, as aforesaid, in terms of legal maxim "acta exteriora indicant interiora secreta" suffice it would be to say that dishonest intention of accused for misappropriation of aforesaid entrusted money in question is writ large on face of State Vs. Dambar Singh Case No.2034723/16 21 record and stands proved. It is proved on record that accused misappropriated or converted to own use the said sum of money of the account holders, as discussed above and again that he made the false entries regarding withdrawal in the ledger account of the post office.
Accordingly, point no.2 is also decided against the accused and in favour of prosecution only.
32. Now when both the points have been decided against the accused, the one and only inference that could be drawn is that the Accused in his capacity as a Public Servant having dominion over the Funds of the Post Office, committed Criminal Breach of Trust within the meaning of Section 409 of the IPC by dishonestly misappropriating money belonging to the account holders and he falsified the Books of Accounts, withdrawal forms etc., with an intention to defraud the account holders as well as the post office department within the meaning of Section 477A of the IPC for the purpose of withdrawing the money from the accounts of account holders illegally. These proved facts are wholly inconsistent with the innocence of the accused as contended by him and on the other hand, they are consistent only with his guilt. In the said evidence placed on record by the prosecution, it is not possible to pin point any doubt, which cuts the root of the case of the prosecution. As such, question of giving benefit of doubt to the accused does not arise and consequently, accused Dambar Singh is hereby convicted for the offence u/s 409 IPC & also for offence u/s 477 A IPC.
Announced in the open court (Vivek Kumar Agarwal) on 22.02.2020 MM04, South, Saket, New Delhi
It is certified that this judgment contains 21 pages and each page bears my signatures.
(Vivek Kumar Agarwal)
MM04, South, Saket, New Delhi
22.02.2020
State Vs. Dambar Singh Case No.2034723/16