Himachal Pradesh High Court
State Of Himachal Pradesh vs Daljeet Singh on 18 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 429 of 2018 .
Reserved On.: 08.08.2023 Decided on: 18th August, 2023 __________________________________________________________ State of Himachal Pradesh ....Appellant of Versus Daljeet Singh rt ......Respondent Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes.
For the Appellant: Mr. Anup Rattan, Advocate General with Mr. Y.M.Chauhan, Sr. Addl. Advocate General, Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs and Mr. J.S.Guleria, Dy. Advocate General.
For the Respondent: Mr. P.M.Negi, and Mr.D.S.Nainta, Advocates.
Ranjan Sharma, Judge State of Himachal Pradesh has come up in appeal, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/08/2023 20:34:48 :::CIS -2-assailing the judgement dated 23.09.2017 passed by the Learned Sessions Judge, Hamirpur, (H.P.) in Cr. Appeal No. .
02 of 2013, acquitting the respondent-accused herein, for offences punishable under Section 409, 467 and 471 of Indian Penal Code.
2. CASE OF PROSECUTION:
of 2(i). Factual matrix of the prosecution story is that the Respondent-accused, Daljeet Singh was posted as Junior rt Assistant from 10.04.2001 to 13.06.2003 in the office of Commandant, 2nd Indian Reserve Battalion, Jangal Bairi.
Initially this office was at Hamirpur. The Superintendent of Police, Hamirpur was holding additional charge from 01.01.2001 upto 28.06.2001. As per office order No. 4185-88 dated 11.04.2001 the appellant was looking after the work of Accounts Branch. When the head office of 2nd IRB shifted to Jangal Bairi, on 10.07.2001, the account work was handed over to the cashier by the accused and also handed over an amount to the tune of Rs.14,35,803/-. The accused with the object to misappropriate the amount alongwith Kuldeep Chand, Assistant Deputy Director, 2nd IRB, Dharamshala included few lines in the charge report. The amount was ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -3- shown to be returned to the cashier Hamirpur. The balance amount was shown as Rs.3,53,643/- instead of the actual .
amount of Rs.5,42,559/-. During audit, the account was checked and cash of Rs.1,86,692/- was found less, which fact has been given in the audit report. The Investigation Committee was constituted and total amount of Rs.1,91,505/-
of from different heads was found to be misappropriated by the accused. It is also the prosecution story that Shri R.M.Sharma, the rt then Commandant, 2nd IRB, Jangal Bairi/Superintendent of Police, Hamirpur, having additional charge from January 2001 to June 2001, filed a complaint Ex.PW-1/A, on which F.I.R. Ex.PW-16/A, was registered.
Thereafter, the Investigation was undertaken and consequently Challan was filed before the trial Court, for offences under Section 409, 467 and 409 of IPC. After taking cognizance, the accused was summoned and thereafter on 6.7.2007 the learned Trial Court, framed the following Charge against the accused-respondent, which is reproduced below:
"Charge I, Padam Singh Thakur, Addl. Chief Judicial Magistrate, Hamirpur, H.P. do hereby charge you accused as under:::: Downloaded on - 18/08/2023 20:34:48 :::CIS -4-
That you are posted as Junior Assistant from 10.04.2001 to 13.06.2003 in the Office of Commandant in 2nd India Reserve Battalion, Jangalberi. You have mis-
.
appropriated Rs.1,88,916/- and vide RC No. 15/01, dated 10.07.2001, R/C No. 16/01, dated 16.07.2001, vide R/C No. 01/2001 dated 11.1.2001 and vide R/C No. 142/01 dated 11.10.2001 and thus total amount spent Rs.5,42,559/- and vide fate note you have shown this amount Rs.3,53,643/- and the remaining amount of Rs.1,88,916/- was of misappropriated and committed the offence punishable under Section 409 of IPC and within my cognizance.
rt Secondly, you have forged entry in the Record in order to mis-appropriate the aforesaid amount and cheated the department and committed the offence punishable under Sections 467, 468 of IPC and within my cognizance.
Lastly, by preparing the forged record for mis-appropriation the aforesaid amount used the fake record as genuine and committed the offence punishable under Section 471 of IPC and within my cognizance.
I hereby direct you to be tried by this Court on the aforesaid charge.
Sd/-
Addl. CJM, Hamirpur Certified that the contents of charge have been read over and explained to the accused in Hindi.
Sd/-
Addl. CJM, Hamirpur Statemetn of accused Daljit Singh S/o Jaswant Singh, age, 41 years, R/o Shantla, P.O.Nihari, P.S. Jawalamukhi, District ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -5- Kangra, H.P. at present Junior Assistant DIG S/R Office Shimla, H.P. Without oath 6.7.2007 .
1. Have you heard and understood the contents of charge.
Ans. Yes Sir.
2. Do you plead guilty or claim trial? Ans. Sir, I pleaded not guilty and claim trial.
Sd/-
Addl. CJM, Hamirpur"
of 2(ii). On his pleading not guilty, the trial commenced rt and the prosecution examined 24 witnesses in all. After completion of prosecution evidence, the statement of accused under Section 313 of the Criminal Procedure Code was recorded, denying the evidence appearing against him and thereafter the respondent-accused examined DW-1, in support of his defence.
3. FINDINGS BY LD. TRIAL COURT 3(i). The Learned Trial Court convicted the accused on 17.12.2012 by recording a finding in Para 28 under Section 409 IPC that the accused was entrusted a sum of Rs.1,88,916/- but the accused did not return this amount and he failed to show as to where he put-used the amount of Rs.1,88,916/-. As regards the offence(s) under Sections ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -6- 467, 468, 471 IPC are concerned, the trial Court held that the Note in Ex.PW-1/B was tampered, so as to misappropriate this .
amount.
4. FINDINGS BY LD SESSIONS JUDGE HAMIRPUR:
4(i). Feeling aggrieved against the judgement of conviction dated 17.12.2012 passed by the learned Judicial of Magistrate 1st Class, Court No.1, District Hamirpur, the respondent Daljeet Singh filed Criminal Appeal No. 02 of 2013, rt and as per the judgement dated 23.09.2017 passed by the learned Sessions Judge, the respondent was acquitted of the charged offences by recording a finding in Para 20, as under:-
"1) Firstly, the then Cashier of S.P.Office, Hamirpur had deposited the similar amount which was found less in the audit report.
2) Secondly, the allegation of tampering of record has been leveled against the accused, whereas the same has not been established on record from the report of FSL, Junga.
3) Thirdly, there is no mentioning in the audit report, how the accused has misappropriated the amount.
4) Fourthly, the witness examined by the prosecution have admitted that the then ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -7- Cashier had deposited the amount found deficient as per audit report.
5) Fifthly, the audit report cannot be taken as .
evidence against the accused.
6) Sixthly, the accused was Junior Assistant and another Cashier was also working with him.
The complainant had leveled the allegations against the accused and another person was of not arrayed as accused.
7) Lastly, no responsibility of DDO is fixed in the audit report as all the bills are drawn under rt the signatures of DDO."
5. PRESENT APPEAL:
5(i). Appellant-State has preferred the present appeal, contending primarily, that the trial Court has not properly appreciated the statements of PW-1 R.M.Sharma, PW-2 V.P.Chauhan, PW-6 Krishan Kumar and PW-24 Visheshwar Sharma and the report Ex.DW-1/A, Ex.PW-2/A Audit report and Ex.PW-24/J FSL report, in right perspective. However, in para-8 of the appeal, the appellant-State, has categorically admitted that the respondent-accused has failed to account for an amount of Rs.1,86,692/- entrusted to him and ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -8- accordingly it was prayed that the present appeal may kindly be accepted.
.
6. We have heard Mr. Anup Rattan, Learned Advocate General alongwith Ms. Sharmila Patial, Additional Advocate General for the appellant-State and Mr. P.M.Negi, Advocate, Mr. D.S.Nainta, Advocate, for the respondent-accused and of have gone through the records.
7. CONTENTIONS 7(i).
rt Ms. Sharmila Patial, Learned Additional Advocate General on behalf of the appellant vehemently argued that an amount of Rs.1,88,916/- was entrusted to accused but he failed to return the same and though the amount spent was Rs.5,42,559/- but he showed this amount as Rs.3,53,643/- by adding Note Q-6 in Ex.PW-1/B and thus the remaining amount was misappropriated by him.
7(ii). Sh. P.M.Negi, Learned counsel for the respondent-
accused, denied the contentions raised by the appellant-State.
He contended that the factum of entrustment was incorrect and was not made out in view of the evidence on record and further asserted that the accused had not misappropriated the alleged amount of Rs.1,88,916/-. He contended that the ::: Downloaded on - 18/08/2023 20:34:48 :::CIS -9- prosecution story was based on conjectures and surmises. He states that the prosecution has inter-changed and mixed up .
the allegations against the accused. He further contended that the prosecution has failed to prove the case beyond all reasonable doubts and the suspicion, if any, cannot be taken to be conclusive proof to hold the accused guilty and prayed for of dismissal of the instant appeal.
8. LEGAL PROVISIONS:
rt 8(i). Before we advert to the discussion in the matter, we deem it appropriate to have look at the outlay and the essentials of Sections 409, 467, 468 and 471 of IPC, in terms of the dictum of law, laid down by the Hon'ble Apex Court, which are referred to in the succeeding paras.
8(ii). In Deepak Gaba and others vs. State of U.P. and another, reported in 2023(1) Scale 381, the Hon'ble Apex Court, has highlighted the essential ingredients of Sections 405, 409 IPC in paras 13, 14 and 15, which are reproduced below:-::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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"13. Section 406 of the IPC prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients .
of Section 405 of the IPC are satisfied. For Section 406 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC.
For Section 405 of the IPC to be attracted, the of following have to be established:
(a) the accused was entrusted with property, or rt entrusted with dominion over property;
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
14. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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of law or any contract express or implied relating to carrying out the trust.
.
15. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405 of the IPC. The complaint does not directly refer to the ingredients of Section 405 of the IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning of evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally rt quiet, albeit, it states that "a forged demand of Rs. 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405 of the IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if respondent no.
2 - complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405 of the IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405 of ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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the IPC, a mere dispute on monetary demand of Rs. 6,37,252.16p, does not attract criminal prosecution under Section 406 of the IPC .
8(iii). In M N G Bharateesh Reddy vs. Ramesh Ranganathan and another, reported in AIR 2022 SC 5021 the Hon'ble Apex Court has culled out the mandatory pre-
requsites of Sections 405 and 409 IPC in paras 20 to 23, which of read as under:-
"20. Section 405 of the IPC deals with criminal breach rt of trust and reads as follows:
"405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in 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, or willfully suffers any other person so to do, commits "criminal breach of trust"."
The offence of criminal breach of trust contains two ingredients: (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it.
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21. In Anwar Chand Sab Nanadikar v. State of Karnataka6 a two-judge bench restated the essential ingredients of the offence of criminal breach of trust in .
the following words:
"7. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the of detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally rt afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime."
22. In Vijay Kumar Ghai v. State of West Bengal7 another two-judge bench held that entrustment of property is pivotal to constitute an offence under section 405 of the IPC. The relevant extract reads as follows:
"28. "Entrustment" of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, "in any manner entrusted with property". So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of "trust". A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section
406 of the Penal Code."
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23. None of the ingredients of the offence of criminal breach of trust have been demonstrated on the allegations in the complaint as they stand. The first .
respondent alleges that the Appellant caused breach of trust by issuing grossly irregular bills, which adversely affected his professional fees. However, an alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment. No of element of entrustment has been prima facie established based on the facts and circumstances of the present matter. Therefore, the ingredients of the offence rt of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands."
8(iv) A three Judges bench of the Hon'ble Apex Court has propounded the following principles, with respect to Sections 405 and 409 IPC in N. Raghavender vs. State of Andhra Pradesh, CBI, reported in 2021 (15) Scale 201 has held as under:
"Ingredients necessary to prove a charge under Section 409 IPC:
41. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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criminal breach of trust. (See: Sadupati Nageswara Rao v. State of Andhra Pradesh (2012) 8 SCC 547).
42. The entrustment of public property and dishonest .
misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC.
The expression 'criminal breach of trust' is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property of or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that rt property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:
(i) Entrusting any person with property or with any dominion over property;
(ii) That person has dishonestly mis-appropriated or converted that property to his own use;
(iii) Or that person dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract.
43. It ought to be noted that the crucial word used in Section 405 IPC is 'dishonestly' and therefore, it pre- supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal .
breach of trust. The second significant expression is 'mis-appropriates' which means improperly setting apart for ones use and to the exclusion of the owner.
44. No sooner are the two fundamental ingredients of 'criminal breach of trust' within the meaning of Section 405 IPC proved, and if such criminal breach is caused of by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409 IPC, for which it is essential to prove rt that:
(i) The accused must be a public servant or a banker, merchant or agent;
(ii) He/She must have been entrusted, in such capacity, with property; and
(iii) He/She must have committed breach of trust in respect of such property.
45. Accordingly, unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property .
was carried out in a legally and contractually acceptable manner."
8(v). Similar principles were affirmed by the Hon'ble Apex Court in R. Venkatakrishnan vs. Central Bureau of Investigation, reported in 2009 (11) Scale 102 has also of held as under:
"CRIMINAL BREACH OF TRUST rt
163. The next charge we have to deal with is one arising under Section 409 IPC. For the offence of Criminal Breach of Trust by a public servant the punishment is provided under Section 409 IPC. We must also in this respect have regard to the provision of S 405 which defines Criminal Breach of Trust :
"405. Criminal Breach of trust. Whoever , being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use 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 86 of such trust or willfully suffers any other person so to do, commits 'criminal breach of trust"
164. Punishment for criminal breach of trust is provided in Section
406. Punishment for an aggravated form of criminal breach of trust is provided in Sections 407 to Section 409.
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165. The terms of the section are very wide. They apply to one who is in any manner entrusted with property or dominion over property. The section does not require that the trust should be in .
furtherance of any lawful object. It merely provides, inter alia, that if such a person dishonestly misappropriates or converts to his own use the property entrusted to him; he commits criminal breach of trust. This section requires
1) Entrusting any person with property or with dominion over of property.
2) That person entrusted (a) dishonestly misappropriates or converts to his own use that property; or (b) dishonestly uses or rt disposes of that property or willfully suffers any other person so to do 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. 166. In Onkar Nath Mishra and Ors. vs. State (NCT of Delhi) and Anr., [(2008) 2 SCC 561] this court noted that in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.
167. In Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [AIR 1960 SC 889], this Court observed :
"To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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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. Conviction of a person for the of offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the 88 property entrusted to him, or over which he has dominion, even when a duty to account is rt imposed upon him but where he is unable to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
168. However, 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.
169. Criminal breach of trust by a Public servant is dealt with under s. 409.
"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 of life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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170. This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great .
powers of control, over the property entrusted to them and a breach of trust by such persons may often 89 induce serious public and private calamity. High morality is expected of these persons.
They are to discharge their duties honestly.
171. The following are the essential ingredients of the offence of under this section :
1) The accused must be a public servant;
2) He must have been entrusted , in such capacity with the rt property ;
3) He must have committed breach of trust in respect of such property.
172. In Raghunath Anant Govilkar Vs. State of Maharashtra and Ors, [2008 (2) SCALE 303] the court noted that Section 406 which provides the punishment for criminal breach of trust simplicitor and 409 of IPC are cognate offences in which the common component is criminal breach of trust. When an offence punishable under under Section 406 is committed by a public servant (or holding any one other of the positions listed in the Section) the offence would escalate to Section 409 of the Penal Code.
173. In Superintendent and Remembrancer of Legal Affairs, W.B. v. S.K. Roy, [(1974) 4 SCC 230], this Court held:
"12. To constitute an offence under Section 409 IPC, it is not required that misappropriation must necessarily take place after the creation of a legally 90 correct entrustment or dominion over property. The entrustment may arise in any manner whatsoever. That manner may or may not involve ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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fraudulent conduct of the accused. Section 409 IPC, covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent .
or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as entrustment or acquisition of dominion over property in the capacity of a public, servant who, as a result of of it, becomes charged with a duty to act in a particular way, or, atleast honestly."
174. In Chelloor Mankkal Narayan Ittiravi Namhudiri v. State of rt Travancore, Cochin, [AIR 1953 SC 478], this Court 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."
175. In Ram Narayan Popli (supra), this Court stated the law, thus :-
"81. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be 91 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 be with a dishonest intention. When a person allows others to ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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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."
of
9. ANALYSIS: QUA CHARGE UNDER SECTION 409 IPC 9(i). At the very outset, we proceed to test the veracity of rt the prosecution story that the accused misappropriated a sum of Rs.1,88,916/-, which was entrusted to him, as the balance was in fact Rs.5,42,559/- but he showed this amount as Rs.3,53,643/-.
8(ii). From the very inception, PW-1 ( R.M.Sharma) has generated a doubtful story by testifying that an amount of Rs.1,88,916/- has been misappropriated by accused or by ASI Kuldeep Chand when ASI Kuldeep Chand was not produced/examined. However, prosecution examined PW-8 (Kamlesh Kumari), who deposed that her husband Kuldeep Singh Rana had died on 18.05.2004. Even the F.I.R. pertaining to the incident of the year 2001 was registered on 9.1.2014, ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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vide Ex.PW16/A, at the instance of PW-1 (R.M.Sharma), who was erstwhile Commandant of 2nd Indian Reserve Battalion, .
Jangal Bairi. PW-1 (R.N.Sharma) is not certain about the alleged amount as on one hand, he testifies that an amount of Rs.1,88,916/- has been misappropriated but at the same time he deposes that the misappropriated amount was of Rs.1,83,000/- and further testifies that as per audit report Ex.PW-2/A, the net shortage was of Rs.1,86,692/-.
8(iii).
rt PW-6 (H.C Krishan Kumar), who admits to be the Cashier of S.P. Office, Hamirpur as well as of the office of Commandant 2nd Indian Reserve Battalion, Jangal Bairi, has deposed that as per the Road Certificate No.15/2001 dated 10.07.2001, Ex. P-1, an amount of Rs.14,35,803/- was handed over to accused as per details in Ex. P-2. He further admits that Expenditure Sheet, i.e. Ex. PW-1/B, have been prepared by him. He stated that he handed over the records i.e. Ex. P-1 to Ex.P-5 and Ex.PW-1/B to the Police on 07.02.2004.
Statement of PW-6 (HC Krishan Kumar) aggravates the doubt(s) in the prosecution story in view of the fact that on one hand he deposes that as per Road Certificate No.16/2001 dated 16.07.2001, Ex. P-3, an amount of Rs.1,88,916/- was ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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sent by him to accused-Daljeet Singh but this amount was returned to him by the accused as per Road Certificate .
No.1/2001 dated 11.10.2001, Ex.P-4. He further deposes that as per Road Certificate No.142/2001 dated 11.10.2001, Ex.P-
5, an amount of Rs.12,46,887/- was sent by him (PW-6, Krishan Kumar) to the accused-Daljeet Singh, but he further of states that Ex.P-5 was cancelled; which lacks credence as the cancellation qua Ex.P-5 was not proved. Additionally, PW-6 rt (Krishan Kumar) has deposed that on 03.07.2003 i.e. Ex. P-
22/F, he had deposited a sum of Rs.1,88,916/- creates suspicion when, no material has been proved to justify as to who gave this amount to PW-6, at whose instance, on which date and for what purpose because it is highly improbable that why did he deposit the amount, if not, misappropriated by him.
No records of penalty allegedly imposed on PW-6, Krishan Kumar, were produced. Moreover, PW-6 himself admits that he was the Cashier on relevant time and even a perusal of Ex. P-5 and Ex. P-22/F also negates the prosecution story as PW-6, being Cashier had remitted only Rs.12,46,887/- but misappropriated Rs.1,88,916/- (deposited subsequently).
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8(iv). The prosecution has also failed to prove whether this amount of Rs.1,88,916/- was a part of the amount of .
Rs.14,35,803/- (as in Ex. P-1, Ex.P-2 and Ex. PW-1/B) or was part of an amount of Rs.1,88,916/-, which was returned by accused on 11.10.2001, Ex. P-4 or was part of an amount of Rs.1,88,916/-, which was deposited by PW-6 (HC Krishan of Kumar) on 03.07.2003, Ex.P-22/F or was an amount in addition to amount of Rs.12,46,887/-, Ex.P-5 (supra). The rt prosecution has failed to produce the cash book and the ledger(s), which were duly maintained and inspected by higher authorities. The prosecution has failed to establish entrustment and the dishonest intention of the accused in alleged misappropriation when, it is PW-6, Krishan Kumar, who being the Cashier at relevant time, who had misappropriated this amount, which admittedly was deposited by him on 03.07.2003, Ex.P-22/F. In absence of any proof of entrustment; dishonest intention to misappropriate and violation of any direction of law or any legal contract, the entire prosecution story is untrustworthy, lacks credence, is doubtful and needs to be discarded.
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10. Besides the above, the prosecution story suffers from serious and material inherent contradictions, which as .
detailed here-in-below:-
10(i). DISCREPANCY WITH RESPECT TO AMOUNT ALLEGEDLY MISAPPROPRIATED:
A perusal of F.I.R. Ex.PW-1/A and the charge framed on 6.7.2007 by learned Trial Court, specifically alleges of that the respondent-accused has misappropriated an amount of Rs.1,88,916/-, which is in total contradiction to the audit rt report dated 5.6.2003 Ex.PW-2/A whereby the net shortage of funds of minor work was shown to be Rs.1,86,692/-. In addition to this, an amount of Rs.1,86,692/- has been shown as alleged shortage in para 8 of the instant appeal. In view of these material contradiction(s) the entire prosecution story that the respondent-accused has misappropriated an amount of Rs.1,88,916/- is under shadow of doubt.
10(ii) DISCREPANCY REGARDING PERSONS ALLEGEDLY INVOLVED IN MISAPPROPRIATION:
PW-1, R.M.Sharma, who was the then Superintendent of Police, Hamirpur, and was also holding the additional charge of Commandant, 2nd Indian Reserve ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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Battalion, Jangal Bairi, has specifically deposed that the alleged misappropriation was done by the respondent-accused .
herein or by the Accountant ASI Kuldeep Chand in collusion with each other. The prosecution has failed to examine the aforesaid ASI Kuldeep Chand. However, a perusal of the statement of PW-8 Kamlesh Kumari reveals that one of Sh. Kuldeep Singh Rana, ASI, expired on 18.04.2004. In absence of any proof of charge, mere statement of PW-1, rt cannot be taken as gospel truth.
10(iii) PROSECUTION STORY BASED ON AUDIT REPORT:
In Audit Report Ex.PW-2/A, dated 5.6.2003 the net-shortage was shown of Rs.1,86,692/- which is in total variance to the alleged misappropriated amount of Rs.1,88,916/-. In addition to this, the Audit Report Ex.PW-
2/A cannot be used against the accused when, the Section Officer, who conducted the aforesaid audit, had neither associated nor he had issued any notice to the accused to participate during audit. Even the accused was not apprised of the records which were relied upon by audit. Thus, the ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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audit conducted behind the back of accused cannot be relied upon against the accused.
.
10(iv). DEPOSIT AND RETURN OF Rs.1,88,916/-
A perusal of Ex.P-3, Road Certificate reveals that though the amount of Rs.1,88,916/- was sent to the Accounts Branch and handed over to accused Daljeet Singh but a of perusal of Ex.P-4 dated 11.10.2001 i.e. the Road Certificate undoubtedly establishes that Rs.1,88,916/- was returned by rt the accused to the Incharge Accounts, S.P.Office. In view of this, once the alleged amount was returned to the Incharge Accounts, S.P.Officer, Hamirpur then, the entire prosecution story as contained in F.I.R. i.e. Ex.PW-1/A and the charges framed on 6.7.2001 falls to the ground.
10(v). DEPOSIT OF Rs.1,88,916/- BY PW-6 KRISHAN KUMAR:
In cross-examination PW-1 (R.M.Sharma) admits that Rs.1,88,916/- was deposited by PW-6 (H.C Krishan Kumar), which is also admitted by PW-6 in cross-examination that he had deposited the amount of Rs.1,88,916/- on 3.7.2003 vide Ex.PW-22/F. A perusal of the statement of PW-6 further reveals that this amount was deposited as the head of department had imposed a penalty on him. This statement of ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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PW-6 creates doubt with respect to the factum and rational behind the deposit of this amount. Had any department .
proceedings and penalty been imposed for which the aforesaid amount of Rs.1,88,916/- was deposited by PW-6, then, the prosecution was duty bound to examine the records and to corroborate the veracity of such statement as to whether the of aforesaid amount was deposited was result of penalty so imposed or not. In absence of any such collaboration, the rt deposition of PW-6 that the amount so deposited in lieu of penalty is unbelievable. However, once the amount of Rs.1,88,916/- has admittedly been deposited then, prosecution story alleging misappropriation is without any foundation leading the prosecution edifice to consequently fall.
10(vi). DEPOSIT OF AMOUNT BEFORE F.I.R.
A perusal of F.I.R. Ex.PW-1/A, reveals that it was registered as F.I.R. No. 9 of 2004 dated 9.1.2004, whereas Ex.PW-2/F dated 3rd July, 2003 proves on record that the amount of Rs.1,88,916/- had already been deposited by PW-6 Krishan Kumar before the registration of F.I.R. and therefore the basis of criminal breach of trust cannot in any manner be attributed to the accused herein.
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10(vii). BILLS-PAYMENTS RELEASED UNDER AUTHORITY OF DDO.
Moreover, a perusal of the records i.e. the bills .
under which the disbursement of amount was made were drawn under the signature of D.D.O, but the prosecution has not made any attempt to produce the DDO(s) to prove its case.
Thus, non-cross-examination of material witnesses i.e. DDO's of is sufficient to disbelieve the prosecution story which has no foundation. rt 10(viii). EXPLANATION OF ACCUSED UNDER SECTION 313 CR.P.C. Even the explanation given by the accused, under Section 313 Cr.P.C. disproves the case of prosecution, whereby the accused has specifically stated that PW-6 (HC Krishan Kumar), who was cashier, had misappropriated the alleged amount of Rs.1,88,916/-.
11. ANALYSIS QUA CHARGE UNDER SECTIONS 467, 468 AND 471 IPC 11(i). The appellant-State in order to find a bird in the sky has relied upon FSL report i.e. Ex.PW-24/J, to show that in Expenditure Statement, Ex.PW-1/B, Questioned Item i.e. Q-5 therein regarding Entry No.5 of Rs.1,88,196/-
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was inserted by the accused. This reliance is without any merit when the FSL i.e. Scientific Officer, Document and Photo .
Division, SFSL, Junga, H.P. has opined in Ex.PW24/J that it has not been possible to express any opinion regarding the authorship of Questioned Item Q-5, due to non- availability of similar material for comparison. Once the authorship of of Questioned Item Q-5 remains unanswered, even by the expert, then, the prosecution story and the accusation that an rt amount of Rs.1,88,916/- was misappropriated by the accused is without any substance. In addition to this, the provisions of Section 47 of the Indian Evidence Act, 1872 mandates that that an opinion as to the person by whom any document was written or signed can only be formed by proving the same on the basis of opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed. In the instant case, once the prosecution has failed to examine any person, who could prove, the averments in Questioned Item Q-5, then, the prosecution story and the accusation has rightly not been held to be not proved, against the accused.
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11(ii). Thus the offence(s) under Sections 467, 468 and 471 of the Indian Penal Code are not made out on .
facts and in law.
12. Moreover, nothing has been shown from records or evidence or during arguments that the findings recorded in Para 20 of the judgement dated 23.09.2017 recorded by of the learned Sessions Court are perverse and absurd.
13. CONCLUSION AND DIRECTION(s):
13(i).
rt In view of the discussions, made hereinabove, coupled with the fact the prosecution has failed to prove the charges against the accused regarding the alleged misappropriation or criminal breach of trust at the behest of the accused (under Section 409 IPC) and has also failed to prove the forgery of records (under Section 467 IPC) and has also failed to prove the ingredients of Section 471 IPC, we pass the following direction:-
(i) The judgement passed by the learned Sessions Judge, Hamirpur, in Cr. Appeal No. 02 of 2013 acquitting the accused for the offences punishable under Section 409, 467 and 471 IPC calls for no interference. Accordingly, the instant ::: Downloaded on - 18/08/2023 20:34:48 :::CIS
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appeal i.e. Cr. Appeal No. 429 of 2018 titled as State of Himachal Pradesh vs. Daljeet Singh is .
dismissed.
(Tarlok Singh Chauhan)
Judge
of
(Ranjan Sharma)
rt Judge
August 18, 2023
(TM)
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