Delhi District Court
Fir No. 18/02 State vs . Amarjeet Singh Arora (Po) & Ors. on 2 July, 2019
FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors.
PS : Hauz Qazi
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Amarjeet Singh Arora & Ors
FIR No. 18/2002
PS : Hauz Qazi
U/s 406/409/411/34 IPC
Date of Institution : 31.08.2002
Date of reserving of order : 03.06.2019
Date of Judgment : 02.07.2019
CNR No. DLCT020001632002
JUDGMENT
1. Serial No. of the case : 291564/2016
2. Name of the Complainant : Mahesh Chand Khandelwal
3. Date of complaint : 26.09.2001
4. Name of accused persons :
1. Amarjit Singh Bhatia S/o Sardar Nanak Singh R/o 428, Turab Nagar, Ghaziabad, UP
2. Ajit Singh S/o Jagan Singh, R/o 11/332, Vasundhara Shaibabad, District Gaziabad, UP
5. Offence for which chargesheet Page 1 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors.
PS : Hauz Qazi
has been filed : Section
406/409/411/34 IPC
6. Offence for which charge
has been framed : U.s 406/34, IPC.
7. Plea of accused : Not guilty.
8. Final Order : Acquitted
9. Date of Judgment : 02.07.2019
BRIEF REASONS FOR ORDER:
1. Mr. Amarjeet Singh Bhatia, Mr. Ajeet Singh and Mr. Amarjeet Singh Arora (Since PO) have been chargesheeted for committing offences punishable under Section 406/409/34 & 411, the Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The case of the prosecution is that one complaint was made by Sh. Mahesh Chand Khandelwal at PS : Hauz Qazi on 26.09.2001. It was stated in the complaint that the complainant was a partner in firm M/s Delhi Hardware Store, having its Office at 3482, Hauz Qazi, Delhi06. Sh. Rajender Prasad Khandelwal, Sh. Lalit Kumar Mathur and Smt. Sneha Lata Khandelwal were other partners of the firm. The firm was registered on 04.08.1992. Thereafter, a bank account of the firm was got Page 2 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi opened in Punjab & Sind Bank, Chawri Bazar, Delhi. It was instructed to the Bank to honour all the cheques, bills, receipts etc., duly signed by any of three partners of the firm. The complainant had signed various cheques. The complainant came to know that huge amount had been misappropriated by partner Rajender Prasad Khandelwal and Lalit Kumar Mathur through cheques without signature of third partner, in collusion with the bank officials. Lalit Mathur transferred an amount of Rs.15,000/ by cheque no. 825734 dated 06.04.2000, Rs.6000/ vide cheque no. 893273 dated 04.12.2000 to his personal account. The cheques were signed only by Lalit Kumar Mathur. An amount of Rs.6000/ through cheque number 825728 dated 24.03.2000, Rs.3000/ through cheque number 893260 dated 20.09.2000 and Rs.4500/ through cheque number 893283 dated 02.02.2001 were also withdrawn without signatures of three partners. Various other cheques were also got encashed in the same manner without signatures of three partners. By doing those acts Lalit Mathur and Rajender Prasad Khandelwal had cheated the complainant for a sum of Rs.39,500/. Therefore, the present complaint was made. On the basis Page 3 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi of the said complaint, present FIR was registered. Investigation was initiated. Accused Amarjeet Singh Bhatia, accused Ajeet Singh and accused Amarjeet Singh Arora (Since PO) were the bank officials who had cleared different cheques. During investigation partner Rajender Prasad Khandelwal had expired. After completion of investigation 'final report' was filed by the Investigation Officer (IO) in the Court and accused Lalit Mathur (since deceased), Amarjeet Singh Arora (since PO), Amarjeet Singh Bhatia and Ajeet Singh were chargesheeted for the offences punishable under Section 406/409/34 IPC and 411 IPC.
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. Accused Lalit Mathur had expired and therefor criminal proceedings were abated against him vide order dated 07.03.2005. Accused Amarjeet Singh Arora stopped Page 4 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi appearing in the Court. He was declared absconder vide order dated 04.02.2012.
4. After hearing the parties, charge for the offence punishable under Section 406/34 IPC was framed against accused Amarjeet Singh Bhatia and Ajit Singh to which they pleaded not guilty and claimed trial.
5. The prosecution has examined as many as 07 witnesses to prove its case against the accused.
6. PW1 Mahesh Chand Khandelwal is the complainant. He has deposed that on 04.08.1992, a partnership firm was constituted in the name and style of M/s Delhi Hardware Stores including himself and other partners, namely, Sh. Rajender Pd. Khandelwal, Sh. Lalit Kumar Mathur and Mrs. Snehlata Khandelwal. A bank account in the name of M/s Delhi Hardware Stores was opened in the Punjab & Sind Bank, Chawri Bazar for transaction on behalf of the firm with instructions to bank in writing that not less than three partners of the said firm must sign any cheque/bill/receipt for its encashment. The photocopy of such declaration is Ex. PW1/A. He has deposed that after some time an amount of Rs.39,500/ Page 5 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi was withdrawn from the bank account of the firm without following such procedure as abovementioned. Lalit Kumar Mathur (since deceased) had transferred Rs.15,000/ and Rs.6000/ vide cheque no. 825734 and 893273 from the account of the firm in his personal account. Those two cheques were signed only by Lalit Kumar Mathur (since deceased) and not by three partners as required. Similarly, amount was withdrawn by using cheques no. 893295, 893306, 893311, 893315 and 893318 which bore signatures of Lalit Kumar Mathur and Rajender Kumar Khandelwal. The photocopy of the cheques are Ex. PW1/D (10 pages). PW1 had made a complaint to SHO, PS : Hauz Qazi, which is Ex. PW1/B. He had also given the photocopy of the partnership deed running into 5 pages which is Ex. PW1/C.
7. PW02 SI Brice Indwar is the Duty Officer who had registered the FIR. He has deposed that on 05.02.2002, SI Manoj Kumar Sinha had produced a rukka before him and on the basis of the rukka he had registered FIR No. 18/2002 which is Ex.PW2/B (OSR). He had also made endorsement on the rukka which is Ex. PW2/B. After registration of FIR he had handed over the copy of original Page 6 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi rukka and FIR to IO/SI Manoj Kr. Sinha for further action.
8. PW03 Retd. SI Ratan Kumar is the police official who had participated in the investigation. He has deposed that on 22.02.2002, accused Lalilt Mathur (Since expired) had come at PP : Balimaran. The IO SI Manoj Sinha had arrested him. On 13.06.2002, he had again joined the investigation with the IO. On that day, accused Ajeet Singh and Amarjeet Singh Bhatia had come at the PP. The IO had arrested both the accused in his presence. Accused Ajeet Singh was arrested vide memo Ex. PW 3/A. Accused Amarjeet Singh Bhatia was arrested vide memo Ex. PW3/B. Their body inspection memos were prepared in his presence. They were released on bail. On 03.07.2002, the IO had arrested accused Amarjeet Singh Arora (Since PO) at PP Balimaran in his presence vide memo Ex. PW3/C. The IO had interrogated all the accused persons and prepared their memo of disclosure statements. Disclosure statement of accused Ajeet Singh is Ex. PW3/D. Disclosure statement of accused Amarjeet Singh Arora (Since PO) is Ex. PW3/E. Disclosure statement of accused Amarjeet Singh is Ex. PW3/F.
9. PW4 Smt. Sneh Lata Khandelwal is the Page 7 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi partner of the complainant firm. She would depose that she did not remember anything about the case.
10. Ld. APP crossexamined the said witness with the permission of the Court. She admitted the suggestion of Ld. APP that on 23.02.2002, the IO of the case had recorded her statement. She has also admitted that she alongwith Rajender Prashad Khandelwal, Lalit Kumar Mathur and Mahesh Chand Khandelwal had executed a partnership deed on 04.08.1992. She has also admitted that name of their firm was M/s Delhi Hardware Stores and admitted her signatures at partnership deed. She has also identified her signatures on Ex.PW1/A. She also admitted that the account of their firm was opened in Punjab & Sind Bank, Chawri Bazar, Delhi. She also admitted that her share was 20 per cent in the aforesaid firm. She also admitted that the signatures of at least three partners were required to deposit or withdraw the amount from the aforesaid account of the firm. She also admitted that she came to know through one of her aforesaid partner namely Mahesh Chand Khandelwal that two other partners namely Rajender Prashad and Lalit Mathur had withdrawn Rs.39,500/ from the aforesaid Page 8 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi account of the firm. She also admitted that her signatures were not obtained at the time of the withdrawal of the said amount from the firm of the account. She has also identified her signature on Ex. PW4/A.
11. PW5 Harbhajan Singh is the bank official. He has deposed that on 01.05.2002 he was posted as Branch Incharge (Temporary) at Chawri Bazar of Punjab and Sind Bank. He had written the letter dated 01.05.2002 to SI M.K. Sinha which is Ex. PW5/A. He had also handed over various documents to the SI as were available in the record of the Bank.
12. PW6 Sh. Vijender Khandelwal is the son of Rajender Khandelwal, a partner of the firm. He has deposed that his father had expired on 08.10.2001. He has proved the death certificate of his father which is Ex.PW6/A.
13. PW7 Inspector Manoj Kumar Sinha was the IO. He has deposed that on 27.09.2001, he was posted as Incharge PP Balimaran, PS : Hauz Qazi. On that day, one inquiry had been marked to him on a complaint of Sh. Mahesh Chand Khandelwal. He conducted the inquiry and took legal opinion. Thereafter, on 05.02.2002, he prepared Page 9 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi the rukka on the said complaint for registration of FIR. The rukka is Ex.PW7/A from point X to X1. He handed over the rukka to the Duty Officer for registration of FIR. After registration of FIR, he was handed over the copy of FIR and original rukka for further investigation. Thereafter, he issued a notice to the Bank Manager, Punjab and Sind Bank to provide the original documents as mentioned in the notice. The carbon copy of the notice is Ex. PW7/B. In reply to the said notice Branch Manager Sh. Harbhajan Singh had provided him 8 original cheques out of 10 demanded and original specimen signatures sheet and photocopy of the partnership deed alongwith the letter Ex.PW5/A. Remaining two cheques were not given and it was told that the cheques were not traceable as mentioned in the reply Ex. PW5/A. He recorded the statement of Branch Manager. The cheques given by the branch manager are Ex. P1 (colly eight cheques). The specimen signatures sheet is Ex. PW4/A. One of the accused Lalit Mathur had obtained anticipatory bail from the Court. As per the directions of the Court he had handed over a demand draft of Rs.20,000/ to him which was in the Name of M/s Delhi Hardware Store. He had deposited the Page 10 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi said cheque in the account of the said firm. He had obtained the receipt and filed with the challan. The same is Ex. PW1/D1. He had arrested accused Lalit Mathur (Since deceased) and he was released on bail. He recorded his disclosure statement. Till then accused Rajender Khandelwal had already expired. He had obtained the copy of his death certificate from his son Vijender Khandelwal and recorded his statement. The death certificate is Ex.PW6/A. Accused Amarjeet Singh Bhatia, Ajit Singh and Amarjeet Singh Arora had obtained anticipatory bail from the Court. He arrested accused Ajit vide memo Ex. PW3/A. He arrested accused Amarjeet Singh Arora (Since PO) vide memo Ex. PW3/C. He arrested accused Amarjeet Singh Bhatia vide memo Ex. PW3/B. The accused persons were released on bail. He had also recorded their disclosure statements which are Ex. PW3/D, Ex. PW3/E and Ex. PW3/F. He recorded the statement of the witnesses. He had recorded the statement of Ms. Sneh Lata Khandelwal who was fourth partner in the said firm. After completion of investigation, he handed over the case file to the SHO.
14. The witnesses were cross examined. The Page 11 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi prosecution evidence was closed. Accused were examined U/s 313 Cr PC r/w Section 281 Cr. PC. The accused denied the incriminating evidence. They would state that they were falsely implicated and that they had not committed any such crime.
15. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
16. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identities of the accused persons have been established beyond reasonable doubts. The evidence on record has proved that the accused persons in furtherance of their common intention has committed criminal breach of trust. They had been entrusted with the property belonging to the complainant. However, they had dishonestly misappropriated or converted in their own use. Hence, all the ingredients of offence punishable under Section 406/34, IPC have been proved against the accused persons beyond reasonable doubts. Hence, it is prayed, the accused persons may be convicted.
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17. Ld. Defence Counsel, on the other hand, would argue that the prosecution has failed to prove its case against any of the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses. None of the witness has proved that the accused persons were having any dishonest intention. They had been discharging their official duties diligently. They had cleared the cheque as per the banking norms under good faith and mutual trust. No departmental inquiry was ever conducted against any of the accused. There might have been dispute between the partners of the firm of the complainant due to which complaint were made against those partners. There was no mens rea to commit an offence. The partners of the firm were landlord of the bank premises. Therefore the cheques were cleared under good faith as the partners used to visit the bank premises regularly. Further, the accused persons were never entrusted with the property or dominion over the property by the complainant. The accused persons did not act dishonestly. They did not misappropriate to their own use any property. They did not dispose of any property in violation of any direction or mode. No civil action was ever Page 13 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi taken by the complainant against the other partners of the firm for recovery of the amount. The firm was even reconstituted by the complainant with the son of accused partner after their death. The prosecution has failed to bring any evidence to prove that any of the accused had committed any offence of criminal breach of trust. Reasonable doubts have been raised on the case of the prosecution. Ld. Counsel for the accused persons has also filed written submissions. He has raised various other arguments therein. However, those arguments are not convincing and therefore they are not mentioned here. Ld. Counsel has relied upon the following judgments in support of his contention.
1. Criminal MC No. 1942/2004 decided on 02.07.2012 Wofgang Reim & Ors Vs. State (Delhi High Court).
2. Criminal Revision Petition 747/2006 Sushil Kumar Uppal Vs. Shankar P.Jethani decided on 21.11.2006 by Hon'ble Delhi Court.
3. Javed Akhthar Md.Mirza Vs. State of Gujrat & Ors., RCR MA No. 4585/2012 decided by Gujrat High Court on 28.03.2017.
4. Sardar Singh Vs. Stae of Gujrat AIR 1977 SC 1766.
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5. Professor R.K.Vijay Sarthy and Anr. Vs. Sudha Seetha Ram and Anr. Crl. appeal No. 238/19, decided on 15.02.2019 by Supreme Court of India.
6. Abdul Hakkem P.V Vs. State of Kerala & Anr., Criminal MC No. 1813/14, decided on 08.03.2019 by High Court of Kerala.
7. Amar Sinh Puran Sinh Ravat Vs. State of Gujrat, RCR MA/20083/2014 decided on 20.08.2015 by High Court of Gujrat.
8. Vinod Natesan Vs. State of Kerala and Ors., Crl.appeal No. 1593/18, decided on 11.12.2018 by Supreme Court of India.
9. Prem Ballabh Khulbe Vs. Mathura Dutt Bhatt AIR 1967 SC 1342
10. State of Gujrat Vs. Jaswant Lal Natha Lal AIR 1968 SC 700
11. Velji Raghavji Patel Vs. State of Maharashtra AIR 1965 SC 1433
12. K.L. Aggarwal Vs. State of UP and Anr., decided on 25.05.2016 by High Court of Allahabad.
13. Kailash Kumar Sanwatia Vs. State of Bihar, Criminal appeal no. 904/1996, decided on 02.09.2003 by Supreme Court of India.
14. Binod Kumar & Ors Vs. State of Bihar and Anr, criminal appeal no. 2327/2014 decided on 30.10.2014 by Supreme Court of India.
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15. Robbert John D'suza Vs. Stephen V. Gomes & Anr., Criminal appeal no. 953/2015 decided on 21.07.2015 by Supreme Court of India.
18. Ld. Counsel for the accused persons has submitted that the law is well settled that an accused can not be convicted for offence of criminal breach of trust unless there was some dishonest intention. In the present case, there is nothing on Court record to show that any of the accused had any dishonest intention. Reasonable doubts have been raised on the case of the prosecution. Hence, It is prayed that the accused persons may be given benefit of reasonable doubts and they may be acquitted.
19. I have heard the rival submissions and carefully perused the material available on record.
20. It is trite that in criminal jurisprudence, the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubts on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be given to the Page 16 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi accused. It is also settled position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
21. Section 406, IPC provides punishment for committing offence of criminal breach of trust. In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore, Cochin AIR 1953 SC 478, Hon'ble Supreme Court of India has discussed the ingredients of the offence. It has held:
"to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."?(emphasis supplied) Page 17 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi
22. Supreme Court of India in Sardar Singh vs State Of Haryana AIR 1977 SC 1766 has discussed the scope of offence punishable under Section 406 IPC. It has held as under:
"2........The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. Here as we have already pointed out, the appellant was admittedly entrusted with the receiptbook or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It is quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or Page 18 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case."
23. Further, Supreme Court of India in Narendra Pratap Narain Singh And Anr. vs State Of U.P AIR 1991 SC 1394, has observed as under:
"Section 405 defines `criminal breach of trust'. The essential ingredients of Section 405 are :
"(1) The accused must be entrusted with property or dominion over property :
"(2) The person so entrusted must use that property or "(b) dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation "(i) of any direction of law prescribing the mode in which such trust is to be discharged, or "(ii) of any legal contract made touching the discharge of such trust.
"The essential questions that follow are; first, whether the first appellant had dishonestly misappropriated or converted the property entrusted to him to his own use or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged; secondly Page 19 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi whether the second appellant was also a privy to the alleged misappropriation; thirdly whether both the appellants forged false bills and cash receipts and then fraudulently or dishonestly used such documents as genuine; and fourthly whether the appellants in their capacity of public servants dishonestly misappropriated or converted that property to their own use or willfully suffered the Department by doing any act in violation of the directions, thereby making themselves liable to be punished for the aggravated form of criminal breach of trust under Section 409IPC. The expression `dishonestly' is defined under Section 24 of the Indian Penal Code."
24. Supreme Court of India in Ram Narain Popli vs Central Bureau Of Investigation, Appeal (crl.) 1097 of 1999 decided on 14 January, 2003, has held as under:
"Section 409 deals with criminal breach of trust by public servant or by banker, merchant or agent. Section 405 defines criminal breach of trust. The offence like the offence of criminal misappropriation is characterized by an actual fraudulent appropriation of property. There is not originally wrongful taking or moving as in the case of theft but the offence consists in wrongful appropriation of property, consequent upon a possession which is lawful. The offence is distinguishable from criminal misappropriation because subject of it is not the property which by Page 20 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi some casual act or otherwise, but without criminal means, comes into the offender's possession; but the property which is entrusted to the offender by the owner or by others lawful authority and which the offender holds subject to some duty or obligation to apply it according to the trust. "Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. The offence of breach of trust and dishonest misappropriation are sufficient to constitute an offence under the relevant provisions. "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 a legal direction or of any legal contract; and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him that amounts to a criminal appropriation of trust as defined by Section 405. The section relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.
"The term 'entrustment' is not necessarily a term of law. It may have different implications in different Page 21 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi context. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all.
"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.
"As noted by this Court in Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, AIR (1960) SC 889), to establish the charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted if proved may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion."
25. Thus, the law is well settled through judicial pronouncements that in order to constitute an offence of criminal breach of trust, dishonest intention is a basic thread running across the provision. In absence of proving Page 22 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi dishonest intention, the offence cannot be stated to have been committed. Mere the act of entrustment is not sufficient to prove the guilt of the accused. The dishonest intention must be shown in the appropriation or use of the property. A mere negligent act is not sufficient to prove dishonest intention. Therefore, in the present case, it has to be seen whether the accused persons had any dishonest intention while clearing the cheques for encasment.
26. Section 34, IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
27. In the present case, it has been alleged by the prosecution that the accused persons had been working as Banker's in Punjab and Sind Bank. This fact has not been disputed by any of the accused person. The prosecution has also alleged that the accused persons in their capacity as bankers had cleared various cheques of the firm M/s Delhi Hardware Store in violation of the direction of the Page 23 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi firm that a cheque would not be cleared unless it had signatures of at least three partners.
28. The prosecution has brought on record the account opening form of the abovementioned firm copy of which is Ex. PW1/A. In the said firm there is a direction mentioned at page No. 2 whereby the clearance of the cheque has been authorized on the basis of signatures of any three partners of the firm. No other document is available on record showing any such direction.
29. Perusal of the record would show that there is no evidence available on record to show as to how many cheques were cleared by accused Amarjeet Singh Bhatia and how many cheques were cleared by accused Ajeet Singh. In their disclosure statement it is mentioned that the accused Amarjeeet Singh Bhatia has cleared one cheque while accused Ajeet Singh has cleared seven cheques. However, a disclosure statement is not relevant evidence being hit by provision of Section 26, the Indian Evidence Act.
30. It is not the case of the prosecution that any of the accused had converted the money for their own use or Page 24 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi that they had misappropriated the same. No evidence to that effect had been led. Admittedly, the money was withdrawn by two partners of the same firm and it was taken by them. The direction that the cheque would not be cleared unless it contained signatures of at least three partners is not mentioned on the body of the cheques. Such a direction is shown to be mentioned in the account opening form which is submitted at the time of opening of the account. The accused persons might have been negligent by not checking any such direction at the time of clearing the chequecs. However, this act of the accused persons is not sufficient to prove beyond reasonable doubts that they were dishonest at the time of clearing the cheques for encashment. These acts of the accused persons might be considered an act of negligence, however, it is not of such a nature that it attracts criminal liability. The complainant might have Civil remedy against the bank. However, the facts are not able to prove the criminal liability of any of the accused persons.
31. After going through the material on record and the testimonies of the prosecution witnesses, I hold that Page 25 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi there is no evidence to show that accused Amarjeet Singh Bhatia or accused Ajeet Singh had entered into any criminal conspiracy with accused Amarjeet Singh Arora (Since PO) or any partners of the firm to clear the cheques without complying with the direction of the Joint account holder i.e., partners of the firm. There is no evidence to show that there was any meeting of mind of the accused persons to commit such an act at any point of time. The complainant has been examined as PW1. In his entire testimony he has nowhere stated that he had seen or heard the accused persons entering into any criminal conspiracy to commit the offence as alleged. His only allegation material for the present case is that the accused persons, being banker had cleared the cheques of the firm even though they did not contain signatures of at least three partners of the firm as required under the agreement between the firm and the bank. However, as discussed hereinabove, this negligent act is not sufficient to prove beyond reasonable doubts that the accused persons had dishonest intention at the time of clearing those cheques. Admittedly any of the accused had not misappropriated or converted to his own use any property. It is settled Page 26 of 27 MM08 ( C )/THC/Delhi/02.07.2019. FIR No. 18/02 State Vs. Amarjeet Singh Arora (PO) & Ors. PS : Hauz Qazi position of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court. In the present case, the material on record indicates towards the innocence of the accused persons.
32. In the light of the discussions hereinabove, I hold that the prosecution has failed to prove ingredients of offence punishable under Section 406 IPC against any of the accused beyond reasonable doubts. The benefit of doubts is given to the accused persons as per law. They are acquitted.
33. The accused have already furnished bonds under Section 437A, with one surety along with photographs and copies of address proof.
Digitally
signed by
DINESH
DINESH KUMAR
KUMAR Date:
2019.07.02
17:29:10
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 02nd day of July 2019. MM08 (Central) Tis Hazari Courts, Delhi.
Page 27 of 27 MM08 ( C )/THC/Delhi/02.07.2019.