Delhi District Court
State vs . Surender Singh on 11 April, 2019
IN THE COURT OF SH. DEEPAK KUMARII, METROPOLITAN
MAGISTRATE06, DWARKA COURTS, DELHI.
FIR No. 67/10
PS. J.P. Kalan
U/s. 409 IPC
State Vs. Surender Singh
JUDGMENT
A. Sl. no. of the case : 422440/16
B. Date of institution : 21.03.2011
C. Date of offence : From 04.02.2000 till 27.06.2008.
D. Name of the complainant : Dinesh Kumar
E. Name of the accused : Surender Singh
S/o Rambir Singh
R/o Village Mundhela Kalan,
New Delhi.
F. Offence complained of : u/s 409 IPC
G. Plea of accused : Pleaded not guilty.
H. Final order : Conviction
I. Date of such order : 11.04.2019
Brief statement of reasons for decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as culled out from chargesheet are that the accused being Gramin Dak Sewak Branch Post Master, Mundela Kalan, GDSBO, New Delhi misused his official capacity as branch Post Master and made saving bank transactions which FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 1/24 have not been accounted for the government account and was conducting financial business for their personal gain under the garb of official capacity of Gramin Dak Sewak branch Post Master and he was running parallel post office by keeping the passbooks in personal custody and criminally misappropriated a sum of Rs.74,48,663/ due to procedural lapse.
2. Accused was summoned by the court for facing trial for the aforesaid offences. In compliance of section 207 CrPC, the copy of the chargesheet and the documents annexed with it were supplied to the accused. Prima facie charge for the offences punishable under section 409 IPC was made out against the accused. Accordingly, on 03.04.2012, the Ld. Predecessor of this court framed charge against the accused, to which he pleaded not guilty and claimed trial. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined twenty four witnesses. During perusual of the record the undersigned came to know that there has been mistakes in numbering while recording of the depositions of PWs viz. there are many PWs of the same number i.e. there are three PWs as PW7, two PWs as PW8 and two PWs as PW11.Hence for the sake of clarity those PWs whose numbers have been repeated has been renumbered as PW7A for PW Sudershan Kumar, PW7B for PW Sanjeev Chawla, PW7C for PW Rajesh, PW8A for PW Sushila, PW8B for PW Rajkamal, PW11A for PW Prem Lata and PW11B for HC Shiv Charan.
4. PW1 Hunar Singh deposed that in the year 2008, his posting was at FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 2/24 Ujwa Post Office, as SPM; in May, 2008 one person Dev Dutt Kaushik, resident of Village Mundela Kalan brought his saving passbook for getting it updated and for interest; he checked the entries of passbook in his ledger where it was found by him that in the passbook Rs. 8500/ was shown deposited whereas there was no entry in the ledger of the post office and log book; the entry of Rs. 8500/ was bearing the seal of Mundela Kalan Post office; the seal of Mundela Kalan Post Office used to remain with Surender Singh as he was posted as Branch Post Master of Gramin Dak Sewa Branch, Post Office, Mundela Kalan; he reported the matter with the higher authority for further action; he also identified the accused in the court; original complaint written by him to the Senior Superintendent of Post, New Delhi West District is Ex.PW1/A (OSR). In his cross examination he deposed that he informed Dev Dutt Kaushik that entry of Rs. 8,500/ was missing in their accounts; Dev Dutt Kaushik never gave any complaint regarding the discrepancies of Rs. 8,500/ entry.
5. PW2 Dev Dutt deposed that he was having one saving account in post office Mundela Kalan; he used to operate the same by way of withdrawal as well as deposit of the amount; accused Surender Kumar was post master of that post office i.e. Mundela Kalan; he had found no discrepancies in the operation of his account by the post office Mundela Kalan; as the witness was resiling from his previous statement therefore at request he was permitted to be cross examined by Ld. APP for the State. During the cross examination by Ld. APP for State, he admitted that accused Surender belongs to their Village and that there was an entry of Rs. 8500/ shown in his passbook duly stamped FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 3/24 as a deposit which was in fact not entered in the accounts of the passbook; he voluntarily deposed that accused Surender had made the entry in this respect in his passbook and when PW2 told Surender that he had forgotten to bring the cash, accused stated to him to bring the same in one or two days which he forgot and as such Surender was not at fault; accused Surender used to make the entry in the passbook whenever he visited the post office to deposit the money as well as to withdraw the money after taking or giving the money from me which was to be deposited or withdrawn from the account; he denied that entry of Rs.8500/ which was shown in the passbook and not in the ledger of the post office has occurred because the money was given by him to accused Surender for depositing the same in his account but he did not do the same by not showing the same in the ledger; he also denied the suggestion that he was making the statement in favour of the accused as he being won over by the accused being a covillager. Nothing material came on record during the cross examination of this witness.
6. PW3 Dalpat Singh deposed that in July, 2008 he was posted as Public Relation Inspector, Postal, Palam Village; there was an inquiry initiated by Head Office against Gramin Dak Sewa Branch Post Master, Mundela Kalan i.e. Surender Singh; a team was constituted containing Rajiv Sharma IPO SubDivision 1st, Sh. Ram Murti Gupta PRI (P) and Sh. Bal Kishan (OA); he was assisting Sh. Rajiv Sharma; thereafter they distributed SB 46 form in Mundela Kalan Village in order to get the complaints from the account holder regarding their discrepancies; thereafter, the whole things of post office Mundela Kalan were shifted to Ujwa Dak Ghar on 07.07.2008; they had found FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 4/24 number of passbooks of the account holders in the Mundela Kalan Post Office; upon checking the passbooks they had found number of entries in the passbooks pertaining to withdrawal and deposit but the same were not shown in the government ledger i.e. Branch office daily account; the Mundela Kalan post office was under the charge of accused Surender Singh; duty of post master/incharge of deposit and withdrawal was this that whenever a account holder comes to the post office in order to deposit or withdrawal the amount from his account, first of all, after taking the money he has to make the entry in the passbook with date, stamp of post office and his initial; Thereafter, he has to enter in the Branch Office journal pertaining to the withdrawal and deposit against the respective account; the passbook has to be returned to the account holder; thereafter, in the end i.e. on the closure of day the whole entries pertaining to withdrawal as well as deposit has to be mentioned in Branch Office Daily Account Form(BODAF); the Branch Office Daily Account Form has to be sent daily to the account office along with vouchers pertaining to deposit and withdrawal i.e. in this case Ujwa Post Office. The Ujwa Post Office then do their entries on the basis of Office Daily Account Form and the vouchers; the Office Daily Account Form has to be filled and submitted by the Branch Office incharge of respective branch post office; during the inquiry they had compared passbooks entries with Branch Office Daily Account Form which was sent by the accused to the Account Office; this PW demonstrated as to how the accused used to this appropriate the fund by deposing that one passbook bearing no. 8222467 which is Ex. PW7/N23 in favour of Smt. Sumitra Devi and referred to entry dated 10.12.2005 wherein the withdrawal entry of Rs 4,000/ was shown and referred to Branch Office Daily Account FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 5/24 Form (BODAF) of dated 10.12.2005 where the amount of withdrawal of Rs 4,000/ from account 8222467 was not mentioned at point A; further, in the first page of BODAF date 12.12.2005 it was only shown as withdrawal on that day to the amount of Rs 500/ at point B; similarly, on 06.07.2006, the amount of deposit of Rs 35,000/ was mentioned in the passbook of the abovesaid account whereas the same was not mentioned in the BODAF form dated 06.07.2006 which is Ex.PW7/T at point A and point B respectively; similarly, in another passbook of account bearing 8227761 in favour of Sh. Ravinder Kumar which is Ex.PW7/N12, one entry dated 16.06.2006 was showing the deposit of Rs. 30,600/; however, the same was not mentioned in BODAF form; similarly in one passbook bearing no. 8222967 in favour of Sh. Raj Kamal which is Ex. PW7/E, one entry on 03.07.2007 for Rs 21,000/ deposit is shown whereas the same is not mentioned in BODAF form dated 03.07.2007 Ex.PW7/T. PW3 further deposed that in a similar fashion the entries were made in the passbook but the same was not mentioned in BODAF form by the accused.
7. In his cross examination he deposed that he cannot tell whether any yearly audit or inspection of branches/offices of post office is conducted or not; none of the account holders complained regarding any discrepancy in their accounts; he cannot tell whether during checking and tallying the accounts Surender Singh was present there or not; passbooks were seized during the enquiry.
8. PW4 Darshna Devi deposed that she was having one post office FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 6/24 saving account in post office village Mundela Kalan; accused was posted there as Post Master; she correctly identified the accused; she used to go to the post office and used to give the money to to accused upon which he used to deposit the same by making the entry in the passbook and after properly stamping it, he used to return the same to her; same was the procedure in the case of withdrawal. In her cross examination she deposed that she do not have any complaint in respect of her passbook entries made by accused and she had found any irregularities/errors in the entries of her passbook.
9. PW5 Santosh Devi, PW6 Jaivir, PW7A Sudershan Kumar, PW8A Sushila, PW8B Raj Kamal, PW9 Raj Rani, PW10 Babita, PW11A Prem Lata PW18 Sudesh have deposed almost on the same lines as of PW4 and therefore their deposition have not been reproduced in the judgment for the sake of brevity.
10. PW7B Sanjeev Chawla proved the ledger pertaining to the pos office, Mundela Kalan alongwith bracnh office daily account form (BODAF) pertaining to the period January 2005 to June 2008; the certified copies of the ledger forms are Ex.PW7/A (colly) and certified copy of the BODAF forms are Ex.PW7/B to Ex.PW7/AQ (colly). This witness was not cross examined despite opportunity being afforded to Ld. Defence Counsel.
11. PW7C Rajesh deposed that in the year 2011, he was posted as Public Relation Inspector(PRI), Najafgarh Post Office; a order was given to him by Divisional Office Naraina in respect of delivery of 11 pass books having FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 7/24 account No.s 8228540, 8222693, 8225185, 8227498, 8222967, 8224947, 8227438, 8221771, 8225620, 8227628, 8225467; those pass books are Ex. PW7/A to Ex.PW7/K respectively and were seized by IO vide Ex. PW7/L; till the time pass books remained with him no tampering or alteration was done with them; on 21.04.2011, on the order of divisional office Naraina which Ex. PW7/M, he had handed over the attested copies of posting order of accused Surender, the attested copy of appointment letter of accused Surender; copy of investigation report, 34 pass books of account holder the detail of which are mentioned in Ex. PW7/N (34 in number); and said pass books are Ex. PW7/N1 to Ex. PW7/N34; all the aforesaid documents were seized by IO vide Ex. PW7/O; on 16.06.2011, on the order of divisional office of Naraina vide Ex. PW7/P he had also handed over the Branch Office Daily Account i.e. ( BODA) 5 in number to the police which are Ex. PW7/Q to Ex. PW7/R and same was seized by IO vide Ex. PW7/S. This witness was not cross examined despite opportunity being afforded to the Ld. Defence counsel.
12. PW 11B HC Shiv Charan proved FIR no.67/10 as Ex.PW11/A and endorsement thereon as Ex. PW11/B. This witness was not cross examined despite opportunity being afforded to the Ld. Defence counsel.
13. PW12 Ct. Dushyant deposed that on 21.01.2011, he alongwith SI Praveen went to the house of accused; after interrogation, he arrested accused vide Ex. PW12/A, personal search of accused was conducted vide memo Ex. PW12/B, disclosure statement of accused recorded vide memo Ex. PW12/C. On 22.01.2011, IO took the specimen signature of the accused vide FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 8/24 Ex. PW12/D (colly). In his cross examination the PW denied that the accused was illiterate or that he cannot write or sign.
14. PW13 Anand Prakash deposed that during the investigation, police had sought various documents pertaining to the case which he had given through Sh. Rajesh, PRI(P), Najafgarh vide letter dated 21.04.2011 vide Ex.PW7/M and Ex. PW7/N; the certified copy of posting order of accused is Ex.PW13/A; the certified attestation form of accused is Ex.PW13/B; sanction under section 197 CrPC on behalf of department of Post is Ex.PW13/C (OSR). Northing material came on record during the cross examination of this witness.
15. PW14 Rajiv Sharma deposed that in July 2008, a complaint i.e. Ex. PW1/A was marked to him which was filed by Hunar Singh SPM, Ujwa Post Office pertaining to the account holder Devdutt Kaushik; on which one team was constituted for making a preliminary inquiry including him, Bal Kishan, Dalpat and Ram Maurti Gupta; they compared the records of the Ujwa Post office and after comparing ledgers and Pass book of Devdutt Kaushik, they found there was difference between the ledgers and pass book entries; they informed the SSPO who ordered them to make a detailed past work verification; after that they distributed form SB 46 in the Village Mundela Kalan vide which it was requested to account holders to tell their balance and any problem qua the same; few account holders came in the post office Ujwa on which it was found that the entries showing in the pass book are not shown in to the Govt. Ledgers; the post office Mundela Kalan BO was ordered to be FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 9/24 shifted to Ujwa Post Office which is account office of Mundela Kalan BO; while shifting Mundela Kalan BO to Ujwa Post Office one polythene bag was found containing pass books; entries available in the pass books were compared with the entries of the ledgers i.e. BODAF and SB Ledger and huge difference were found; as per the ledgers and the pass books the entries which are shown in respect of withdrawal and deposit was not shown in the Head Office Ledger & BODAF; the BODAF form was to be prepared by the Branch Post Master Mundela Kalan on the basis of which the Head office Ledger was to be prepared by Head Office employee; if the entries is not shown in BODAF then the same cannot be shown in Head office Ledger also; the witness explained by giving example that the account no. 8222967 pertaining to Smt. Raj Kamal there is an entry dated 03.07.2007 in respect deposit of Rs.21,000/ in it whereas as per BODAF form which is Ex. PW7/AF the entry of deposit is not shown in BODAF Form dated 03.07.2007 and also account number of pass book and amount is also missing in the list of saving bank pass book account number; similarly, in one pass book bearing no. 8227761 pertaining to one Ravinder Kumar one entry dated 25.08.2007 of Rs. 20,000/ withdrawal is shown in the pass book which is Ex.PW7/N12, however in BODAF Form which is Ex. PW7/AG the said entry of Rs. 20,000 withdrawal is missing as well as the number of the pass books is missing from the list of pass book for the said date; thereafter, he prepared preliminary inquiry report and submitted the results to SSP New Delhi West Division; police had investigated the matter from him.
16. In his cross examination he deposed that there is no FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 10/24 recommendation of any senior officer to take action on Ex.PW1/A; he admitted that Surender Singh was removed for the Post Office, Mundela Kalan from 07.07.2008; no written complaint was given by Satbir Kaushik as mentioned in Ex.PW1/A; te complaint was given to SSPO (SSP), West Division, New Delhi; the immediate order of the department was give him orders for preliminary inquiry; he had told the police that department had given him orders for doing preliminary inquiry; no account holder had given him any complaint in writing against accused Surender regarding any discrepancies in their accounts.
17. PW15 Inspector Naresh Kumar deposed that on 30.09.2010, investigation of the present case was marked to him and during investigation, he got transferred from PS J.P.Kalan. This witness was not cross examined despite opportunity being afforded to the Ld. Defence counsel.
18. PW16 Dinesh Kumar, District Magistrate deposed that during his tenure as SSPO one matter pertaining to financial irregularities at Mundela Kalan BPO (under Ujwa SPO) was brought in his knowledge during annual verification of accounts of Ujwa SPO, Mundela Kalan BPO; a team consisting of four members was set up to investigate the matter; they had investigated the matter and reported him that the GDSBPM namely Surender Kumar had committed financial irregularities in account of the concerned post office; he prepared Divisional Level Inquiry and the same is Ex. PW16/A; on 13.01.2009, he made a complaint to the police to register FIR against accused Surender for offence committed by him; his complaint is Ex. PW16/B; annexure A and annexure B attached alongwith his report are Ex.PW16/C and FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 11/24 Ex.PW16/D.
19. In his cross examination he deposed that the matter was reporting to him in writing by Sh. Rajeev Sharma regarding the financial irregularities at Mundela Kalan VPO; the work Sh. Rajeev Sharma was to conduct annual verification of account of post offices pertaining to his subdivision; he reported to him that financial irregularities was pertaining from th year 20002008; the main duty of the Rajeev Sharma was to verify the accounts of the concerned division and sometimes they have also done the works of verification of accounts; work of annual audit is carried out every year and as per his information during the relevant period no financial irregularities were brought to his notice; he voluntarily deposed that the accused was running a parallel post office and did not account the money, deposited or withdrawal in daily accounts of the BO as evident from the documents; he had not received any complaint from the account holder in respect of any irregularities in their account; the inquiry team was solely on the basis of information given by Sh. Rajeev Sharma; he personally did not look into the matter before the constituting the inquiry team nor he took the prior permission of his senior official to constitute the same; voluntarily he deposed that matter of financial irregularities before him therefore he constituted a team; complaint to the police was made on the basis report prepared by the team which was constituted by him; he do not remember as to whether he had obtained the permission to lodged the complaint against the accused; he did not verified the documents which were submitted by him to the police as annexure A and B. FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 12/24
20. PW17 Sunita deposed that in the year 2000, he had opened an account in the post office situated in his village; whenever he used to deposit the amount in the said account; he used to give through accused Surender and he used to make entries in her passbook; accused was correctly identified by this witness. Nothing material came on record when Ld. APP for the State was permitted to ask leading question to the witness. This witness was not cross examined despite opportunity being afforded to the Ld. Defence counsel.
21. PW19 SI Praveen deposed that in the month of December 2010 he was posted as SI at PS J.P Kalan and during the investigation he recorded statement of account holders who were having account in post office, Mundela Kalan; he recorded the statement of official of postal department at village Ujwa; he gave notice under section 91 CrPC to postal department to obtain some documents and same is Ex. PW19/A; on 21.01.2011 accused was arrested vide arrest memo already Ex.PW12/A, his personal search was conducted vide memo already Ex.PW12/B; accused was correctly identified by this witness; disclosure statement of the accused was recorded which is already Ex.PW12/C; eleven passbooks of account holders were seized vide seizure memo already Ex.PW7/L and the said passbooks are the same which are place on record; thereafter he seized 34 passbooks from postal department, copy of appointment letter of accused Surender, copy of divisional level investigation report and document of posting of accused Surender at post office Mundela Kalan vide seizure memo already Ex.
FIR No. 67/10PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 13/24 PW7/O; admitted signature of accused was seized vide memo already Ex.PW7/S; all the documents were sent to FSL for examination; sanction u/s 197 CrPC was obtained from the competent authority and thereafter supplementary chargesheet was filed in the present case. In his cross examination he do not know as to whether there was any written complaint received at the PS against the accused Surender.
22. PW20 SI Nanag Ram deposed that in the year 201415, FSL report no. FSL.2011/D4157 dated 29.12.2014 was addressed to SHO, J.P.Kalan; thereafter, SHO marked him further investigation of the present case. He prepared the supplementary chargesheet and filed the supplementary chargesheet alongwith FSL report before the concerned court. This witness was not cross examined despite opportunity being afforded to the Ld. Defence counsel.
23. Accused in his statement recorded under section 294 Cr.P.C on 01.12.2018 admitted the genuineness of FSL report no. F.S.L.2011/D4157 dated 29.12.2014 as ExP/A/1 and on the same day PE was closed. Statement of the accused under section 313 CrPC was recorded on 10.12.2018. In the said statement all the incriminating evidence against the accused were put to him seeking his explanation. He stated that he is innocent and had not done anything. He further stated that he wants to lead evidence in his defence. On 12.03.2019 it was submitted by Ld. Defence counsel that accused did not want to lead any evidence in his defence and accordingly DE was closed and final arguments were heard in the present case.
FIR No. 67/10PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 14/24
24. I have heard Ld. APP for the state and Ld. counsel for the accused. I have also carefully perused the case file.
25. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
26. Before deciding the present case it is imperative to refer to section 409 IPC which reads that "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 409 IPC lays down the offence pertaining to criminal breach of trust by public servant or by banker, merchant or agent. It is further important to define the term Criminal Breach of Trust which is defined as under section 405 IPC and reads as under that "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 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, FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 15/24 which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
Explanation 1. A person, being an employer, of an establishment whether exempted under Section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 (19 of 1952) or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2 A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948) , shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act,. Shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
27. Now, in Sadhupati Nageswara Rao Vs. State of A.P. reported as 2012(8)SCC 547, it has been held that in order to prosecute successfully under section 409 IPC, two ingredients are to be proved, i.e. (i) accused, a public servant or agent or banker, was entrusted with property of which he was duty bound to account for; and (ii) that the accused has committed breach of trust. Furthermore as to what amounts to criminal breach of trust has been provided under section 405 of IPC and in V.P. Shrivastav vs Indian Explosive Ltd (2010) 10 SCC 361, it was held that criminal breach of trust involves the following ingredients i.e. (i) a person should have been entrusted with property FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 16/24 or dominion over property, (ii) that persons should dishonesty misappropriate or convert to his own use that property or dishoneslty use or dispose of that property and (iii) that such misappropriation, disposal, conversion or use should be in violation any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract which the persons has made touching the discharge of trust.
28. Thus, for an offence under section 409 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. Therefore the prosecution, in the first instance, must show that the entrustment of property or dominion over property "in any manner whatsoever" was secured by the accused "in his capacity as a public servant, agent etc.
29. In the present case, the accused was functioning as Gramin Dak Sewak Branch Post Master post master during the commission of the alleged offence. Pertinently the accused was appointed as EDBPM vide appointment letter dated 22.01.1999 and that he was governed by P&T Extra Departmental agents (Conduct and Servies) Rules, 1964 as amended from time to time and the said appointment letter is Ex.PW13/A which proves that the accused herein was a public servant. The accused has also not disputed this fact that he was not working as post master and as such, this fact constituting one of the ingredients for offence under section 409 IPC stands substantiated.
FIR No. 67/10PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 17/24
30. So, what remains to be further seen is whether there is sufficient evidence to establish that the accused committed criminal breach of trust in terms of section 405 of IPC in respect of the money which he used to receive from the account holders for depositing the same in their respective accounts. In Onkar Nath Mishra v. State (NCT of Delhi) 2008(2)SCC561, it was held 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.
31. Thus, entrustment of property is one of the essential ingredients of the offence of criminal breach of trust. In common Cause v. Union of India (1999)6 SCC 667, it has been held that a trust contemplated by section 405 IPC would arise only when there is an entrustment of property or dominion over property. The first essential ingredient is "entrustment" of the property. In its most general significance all its imports is a handing over of the possession for some purpose which may not imply the conferring of any proprietary right at all. It was held by Lord Haldane in Lake V. Simmons (1927) AC 487. The natural meaning of 'entrusted' involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty. Hence, the expression "entrustment" carries with it the implication that the person handing over any property or on whose property is handed over to another, continues to be its owner. Further, the person handing over property must have confidence in the person taking FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 18/24 the property so as to create a fiduciary relationship between them. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner. As per allegations in the present case, the accused used to accept the payments from the account holders for depositing the same in their account in his official capacity as Gramin Dak Sewak Branch Post Master. It has also been proved from the testimony of PW3 that the duty of postmaster/incharge of deposit and withdrawal was that whenever an account holder comes to the post office so as to deposit or withdraw the amount from his account then, first of all after taking the money he has to make an entry in the passbook with date, stamp of post office and his initial and thereafter he has to enter it in the branch office journal pertaining to withdrawal and deposit against the respective account. Thereafter the passbook has to be returned to the account holder. On the closure of the day the whole entries pertaining to the withdrawal as well as deposit has to be mentioned in branch office account form (BODAF) and that form has to be sent daily to the account office alongwith vouchers of deposit and withdrawal.
32. Moreover, PW1 Honar Singh who was posted as SPM, Ujwa Post Office had found in the month of May 2008 that the entry of Rs. 8500/ in the passbook of one Dev Dutt Kaushik did not tallied with the ledger of the post office and the logbook. Moreover, the FSL report dated 29.12.2014 which has been admitted by the accused in her statement recorded under section 294 CrPC as Ex.P/A/1 stated that the possibility of common authorship of the writings/ signatures on passbooks Marked as Q1 to Q17 with the admitted FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 19/24 signatures as S1 to S3 and A1 to A5 cannot be ruled out. It implies that the initials/ signatures on the passbooks in question are of the accused himself.
33. Section 405 IPC does not provide that the entrustment of property should be by someone or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustement and for the benefit of the owner. The expression "entrusted " in section 409 IPC is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. Similar observation have been made by Hon'ble Supreme Court of India in Somnath Puri Vs. State of Rajasthan AIR 1972 SC 1490. In another case State of Gujrat Vs. Jaswant Lal AIR 1968 Sc 700 it was held by Supreme Court of India that in case of entrustment, the ownership of the property retained by the person who entrusts the same, before there can by any entrustment, there must be an obligation annexed to the ownership of the property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. Essential ingredient to constitute the offence of the criminal breach of trust is dishonest misappropriation or conversion of property to one's own use or dealing with the property contrary to the terms of the obligation created. There can be no criminal breach of trust where there is no dishonesty, since FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 20/24 the definition of criminal breach of trust requires that misappropriation or conversion to use must be with the dishonest intention.
34. Accordingly, I hold that requirement of entrustment or dominance over the property in terms of section 409 IPC is fulfilled in the present case as the misappropriation can be inferred in given facts and circumstances. Moreover, the onus was upon the accused to rebut the presumption of dishonest misappropriation in which he has miserably failed to do so. In the opinion of this Court, therefore, the case of deemed dishonest misappropriation is clearly established on record for the period 04.02.2000 till 27.06.2008 for which no plausible/acceptable explanation or any positive proof or rebuttable evidence has been brought on record by the defence.
35. From the testimony of the official prosecution witnesses it is proved that the accused while working as post Gramin Dak Sewak Branch Post Master master was entrusted with the sum of money by the various account holders and he used to make entries in their passbooks showing that the sum of money has been deposited in their account but in actual he did not made entry in the ledger, or any other relevant account book and thus not deposited the money with the Post Office and misappropriated the same by making false entries in the passbook. Though all the account holders who have been examined by the prosecution in support of their case has identified the accused but have not supported the prosecution in respect of the offence in question. It is also an admitted fact accused and the account holder prosecution witnesses were the residents of the same village and hence the FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 21/24 possiblity of they being won over the accused also cannot be ruled out. The documents and the records coupled with the testimony of official prosecution witnesses very well contradict the defence of the accused as well as the testimony of the account holder prosecution witnesses.
36. In prosecution for Criminal Breach of trust, direct evidence of dishonest conversions to the accused's own use of money, entrusted to him, can seldom be found and such dishonest intention and conversion have to be inferred from the proved facts and circumstances of each case. Intention can only be inferred from the circumstances. Admittedly, in this case there is no recovery of money from the accused person after registration of the case but from the testimony of the prosecution witnesses coupled with documents I find that the sum of money was entrusted to the accused by the various acccount holders which he misappropriated and converted to his own use. The recovery of money is immaterial for constituting an offence punishable uder section 409 IPC.
37. During the course of the arguments it was submitted by Ld. Counsel for the accused that the no sanction has not been proved as per law as there is interpolation on the date whereas Ld. APP for the State had argued that the sanction has been proved as per law.
38. Admittedly there is an interpolation on the date which has not been counter signed. However, the same interpolation is not on the sanction but on the covering letter annexed with the sanction. The sanction has been duly FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 22/24 proved as Ex.PW13/C and the contention of the defence counsel is liable to be discarded as the same is without any substance. More so, no question in this regard was put to PW13 by Defence counsel during his cross examination.
39. PW3 has explained in detail during his deposition as to what were the nature of duties of the accused and what he was supposed to do. It was the duty of the accused to account for and deposit the money received by him from the account holders by making appropriate entires in this regard but he failed to do so.
40. Accused has been correctly identified by PW1 Hunar Singh, PW2 Dev Dutt Kaushik, PW3 Dalpat Singh, PW4 Darshana Devi, PW5 Santosh Devi, PW6 Jaivir, PW7A Sudershan Kumar, PW8A Sushila, PW8B Raj Kamal, PW9 Raj Rani, PW10 Babita, PW11 Prem Lata, PW12 Ct Dushyant, PW14 Rajeev Sharma, PW17 Sunita, PW18 Sudesh, PW19 SI Parveen. Though all the account holder prosecution witnesses have not supported the case of the prosecution and have deposed in favour of the accused. However, this court is of the considered opinion that those account holder prosecution witnesses not supporting the prosecution case is of no value as the case of the prosecution is majorly based on the documentary evidence which has been proved beyond reasonable doubt by other official prosection witnesses.
41. In the present case prosecution has succeeded in proving that the accused has committed the offence punishable under section 409 IPC as all FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 23/24 the ingredients provided under that section has been fulfilled. Firstly accused was a public servant/agent of the Department of Post & Telegraph and was posted as Gramin Dak Sewak Branch Postmaster. Secondly he did not made relevant entries in the ledger book and BODAF while making entry in the passbook of the account holders at the time of taking deposited from them. Thirdly his signatures/ initials on the questioned passbooks has been tallied with the admitted signatures as Ex.P/A/1. Fourthly he was being entrusted with the property which he dishonestly misappropriated.
42. In the light of the above discussion, the accused Surender Singh is convicted for the offences under section 409 IPC.
Let he be heard on the point of sentence on 18.04.2019.
Digitally signedDEEPAK by DEEPAK KUMAR KUMAR Date: 2019.04.11 16:35:17 +0530 ANNOUNCED IN OPEN COURT (DEEPAK KUMARII) TODAY i.e. 11.04.2019 MM06/DWK/NEW DELHI FIR No. 67/10 PS. J.P. Kalan U/s. 409 IPC State Vs. Surender Singh No. 422440/16 Page No. 24/24