Jammu & Kashmir High Court
Bishan Dass vs State Of J&K Through Sho Police Station ... on 19 July, 2023
Author: Mohan Lal
Bench: Mohan Lal
Sr.No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRR No. 46/2008
IA No. 36/2008 c/w
CRR No. 47/2008
IA No. 37/2008
Reserved on: 27.04.2023
Pronounced on: 19.07.2023
Bishan Dass, Age 57 years, S/o Janki ...Petitioner(s)
Prashad, R/o H.No. 40, Dogra Hall,
Jammu.
Through: Ms. Zainab Shamas Watali, Advocate.
Vs.
State of J&K Through SHO Police Station Katra. ...Respondent(s)
Through: Sh. Suraj Singh, Advocate.
CORAM: HON‟BLE MR JUSTICE MOHAN LAL, JUDGE
J U D G M E N T
1. Instant Criminal Revision under Section 439 r/w Section 561-A of Code of Criminal Procedure (hereinafter referred as the „Code‟) has been preferred by petitioner/convict against the judgment/order dated 27.08.2002 passed by the Court of learned Sub-Judge (Judicial Magistrate 1st Class) Katra and the judgment/order dated 20.09.2008 passed by the learned Sessions Judge Reasi, whereby, petitioner/convict has been convicted for the commission of offence punishable under Section 409 RPC and sentenced to undergo simple imprisonment for the period of two years and a fine of Rs.2000/, and in default of payment of fine, petitioner/convict has been ordered to further undergo simple imprisonment for a period of six months.
2. Being aggrieved of & dissatisfied with the impugned judgments, petitioner has questioned their legality, proprietary and correctness and has sought their setting aside on the following grounds:-
(i) that the allegations leveled against the petitioner/convict are, that on 27.06.1991 Chief Accounts Officer of Shrine 2 CRR No. 46/2008 Board through a written communication informed the J&K Bank Ltd. Branch Katra that the amount deposited by the Shrine Board in the Katra Branch of Jammu & Kashmir Bank in its Account No. 1804 on 15.11.1989 was not credited into their account, on further enquiry and reconciliation of the accounts amounts of Rs. 12650/-, Rs.11509/-, Rs. 11337/-, Rs. 27136 and Rs. 16601/-
deposited by the Shrine Board were credited into their Account No. 1804, accordingly Manager of J&K Bank Katra at the instance of his higher authorities lodged a written complaint with the Police Station Katra whereby FIR No. 192/1991 and FIR No. 72/1992 were registered under Section 409/420 RPC against petitioner/convict, after completion of investigation two charge sheets/challans were presented before the Court of learned Sub-Judge (JMIC) Reasi for the commission of offences punishable under Sections 409/420 RPC separately on 29.06.1992 which were transferred to the Court of learned Sub-Judge (JMIC) Katra;
(ii) that the trial court only framed charges against the petitioner/convict for the commission of offence punishable under Section 409 RPC which is vague and ambiguous as the ingredients of the offence have not been clearly brought out and an attempt has been made to convert the simple case of oversight into a criminal act, after the prosecution led the evidence statement of petitioner/convict was recorded under Section 342 CrPC even though there was no evidence against the petitioner and the defense was very much established yet the trial Court convicted the petitioner/convict and sentenced him for two years imprisonment and a fine;
(iii) that the petitioner/convict challenged the said impugned judgment/order in an appeal before the Court of learned Sessions Judge Reasi who too wrongly appreciated the facts thereby upholding the order of learned Sub-Judge Katra, Learned Sessions Judge Reasi took up both the appeals together and disposed them of vide impugned judgment dated 20.09.2008, both the judgments /orders are totally against the well established law and violative of the petitioner‟s fundamental rights;
(iv) that whether the offence of criminal breach of trust is made out in absence of the proof of misappropriation of the said amount, while examining the petitioner/convict under Section 342 CrPC it is not necessary to actually show him the documents placed on record and proved by the prosecution, is the trial vitiated as the petitioner/convict is not given specific/complete notice of the evidence adduced against him as both oral and documentary evidence has not been put to him under Section 342 CrPC and the omission amounts to depriving him of the opportunity to defend himself which has resulted in miscarriage of justice ?;
(v) that the Trial Court as well as the 1st Appellate Court have failed to take into consideration the fact that the prosecution has not established any „dishonest intention‟ and „dishonest misappropriation‟ on the part of the 3 CRR No. 46/2008 petitioner with regard to the amount entrusted to him, the trial court as well as the appellate court have not appreciated that the prosecution has not even been able to establish the conversion of the amount to the petitioner‟s own use or any dishonest disposal of the same which is an important ingredient of the offence under Section 409 RPC;
(vi) that the trial court and the appellate court have not appreciated the fact that on 15.11.1989 an amount of Rs.6660/- found in excess by the petitioner was immediately brought to the knowledge of his superiors by him and the same was deposited by the petitioner in the Sundry Account of the Bank which amply makes the honest intention of the petitioner clear beyond any shadow of doubt, this important fact has not at all been appreciated or explained either by the prosecution or by the trial or appellate court;
(vii) that the alleged „confessional statement‟ upon which the learned trial court and the appellant court have relied heavily is not admissible in evidence as it is not recorded voluntarily by the petitioner himself, the said confessional statement has been recorded/written by some Clerk who was not at all competent to record the same, the said alleged confessional statement is also inadmissible on the account that it was made before the District Manager of the J&K Bank and other high officials who are persons in authority much before any FIR was lodged against the petitioner, the extra judicial confession should be credible however in the instant case it is absolutely apposite, further there is grave contradiction in the statement of the prosecution witnesses about the scribe of the said confessional statement, petitioner in his statement recorded under Section 342 C.rPC has stated that he was pressurized to sign the confessional statement and he has put his signature under duress, there is serious contradiction regarding the fact as to who wrote the confessional statement, the charge sheet depicts that the said confessional statement was written by the petitioner while as the prosecution witnesses say that he was the scribe of the same, the conflicting evidence is sufficient to make it inadmissible, the confession is inadmissible for the reason that same has been secured from the petitioner/convict by inducement, threat and promise made by the District Manager and other superiors who are persons in authority, neither the trial court nor the appellate court has gone into the said fact as to whether the alleged confession was made voluntarily;
(viii) that the report of Assistant Director FSL has been relied upon heavily without examining him before the trail court and not allowing him to cross-examine, the report has been illegally treated as the report of the chemical examiner under Section 510 Cr.PC, the report does not indicate that same has been signed by the chemical examiner, moreover the report of FSL and the evidence of Naib Tehsildar in whose presence the specimen signatures of the petitioner have been obtained has not 4 CRR No. 46/2008 been put to the accused nor brought into his notice while recording his statement under Section 342 CrPC, this omission is sufficient to hold the trial as vitiated entitling the petitioner/convict to acquittal;
(ix) that not even a single person from the Shrine Board came forward to depose that it was the petitioner with whom they deposited the amount in question, even if the prosecution has produced some receipts allegedly bearing signatures of the petitioner no evidence whatsoever has been led by the prosecution which could prove the entrustment of money to the petitioner, the signatures on the receipts do not prove the ingredients of Section 409 RPC, trial court and appellate court have seriously fallen in error in not appreciating that misappropriation has not been established by the prosecution, the impugned judgments/orders are based on sheer presumptions and unfound conjectures;
3. Sh. Suraj Singh, Ld. GA appearing for the respondents, has sought the confirmation of the impugned judgments of conviction by canvassing arguments, that the prosecution has examined as many as eight (8) witnesses out of listed ten (10), the evidence brought on record by the prosecution during the course of trial is cogent, convincing and is reliable as all the prosecution witnesses have supported the case of the prosecution regarding the entrustment of amount misappropriated by the petitioner/accused. It is argued, that the oral as well as documentary evidence brought on record by the prosecution has convincingly proved that the petitioner who was working as Cashier in the J&K Bank Branch Katra at the relevant time of occurrence of 15.11.1989 received Rs.27136/- vide receipt No.71 dated 02.04.1991 and Rs. 16601/- vide receipt No.30 dated 12.04.1991 from Shrine Board and did not credit the said amount into the account No. 1804 of Shrine Board, and instead dishonestly misappropriated the same, thus, the charge for the offence under Section 409 RPC is proved against the petitioner/convict beyond any reasonable doubt. It is moreso argued, that petitioner/convict has been rightly convicted by the trial court of Ld. Sub-Judge (JMIC) Katra vide impugned judgment dated 17.08.2002 which has been rightly upheld by the appellate court of Ld. Sessions Judge Reasi vide impugned judgment dated 20.09.2008.
5 CRR No. 46/20084. Ms. Zainab Shamas Watali, learned counsel for the petitioner, has sought the reversal/setting aside/quashment of impugned judgments of conviction, and has further sought the acquittal of the petitioner/convict on the following counts:-
(i) Confessional Statement/Note/Extra-Judicial Confession Made By Petitioner/Convict Hit By Section 24 Of Evidence Act And Is Inadmissible In Evidence:-
It is argued, that PW-1 Adarsh Gupta (Manager J&K Bank Branch Katra) informed PW-6 Netar Parkash Anand (District Manager J&K Bank Udhampur) who did not give any written charges to the petitioner/convict who could have properly and under law explained his position and contrary to this a written confession was allegedly extracted from the petitioner at 7.10 pm after office hours; as per the statement of PW-6 Netar Parkash Anand before the Trial Court on 24- 10-1991 in his examination-in-chief that Branch Manager J&K Bank Katra informed him that the petitioner/ accused misappropriated the money of Shrine Board and on the same day he alongwith PW-7 Shesh Kumar Khajuria went to Katra to investigate the case, accused confessed his guilt and the confessional statement was written by the accused himself and PW-7 Shesh Kumar Khajuria (Manager District Office Udhampur) also signed the confessional statement as a witness alongwith PW1 Adarsh Gupta, while as PW-6 Netar Parkash Anand in his cross-examination has stated that sometimes the Cashier can make excess payment inadvertently which means that the benefit of doubt should have been given to the petitioner/ accused, PW-6 Netar Parkash Anand could not led evidence to the effect that accused has spent the misappropriated money for his own use; the impugned judgments are purely based on the confessional note/statement of the petitioner/convict which is hit by Section 24 of the Evidence Act, as the confession has been made by the petitioner/convict under inducement, threat and promise and before the person in authority i.e., Manager of the Bank, the said extra-judicial confession was made by the petitioner/convict under pressure of the officers and even application in respect of repayment of Rs.6000/- in installments was written by the petitioner under pressure from the police and the Bank officers, therefore, the confessional statement is inadmissible in evidence, on this count the impugned judgments needs to be quashed. Reliance has been placed on, 1961 CriLJ 258 [Mst. Viran Wali Vs. State].
(ii) Inordinate Delay of 2 Years In Lodging FIR Against Petitioner/Convict:-
It is argued, that PW-2 Chaju Ram (peon of the bank) could not prove that the petitioner/convict has misappropriated the amount, PW-3 Manohar Lal Sharma (Chief Accounts Officer Mata Vaishno Devi JI Shrine Board) has neither provided any audit report nor reconciliation document to the police during the investigation and the same has also not been produced in the trial court, the audit of the accounts is conducted in every financial year in all the 6 CRR No. 46/2008 institutions including Shrine Board but surprisingly no complaint of any misappropriation of money or any irregularity has been brought to the notice of the J&K Bank Branch Katra for almost two (2) years and without seizing audit report or reconciliation document and not producing it with the charge sheet, the impugned judgments/orders are shrouded with serious doubts entitling the petitioner/convict benefit of doubt leading to his acquittal, as per the charge sheet original cash book has been kept on supurdnama of PW-4 Bhuvinder Kumar who has not been examined by the prosecution, the original cash book was produced before the trial court and only reliance has been placed on the photocopies which have been exhibited contrary to the law regarding admissibility of the documentary evidence, the person who conducted reconciliation of the accounts has not been cited as witness and the link is missing in order to establish the offence, PW-4 Bhuvinder Kumar custodian of original cash book has remained unexamined causing serious prejudice to the petitioner/convict making the prosecution case doubtful and concocted, the employees of Shrine Board who used to deposit various amounts on different dates in the Bank were not cited as witnesses nor named in the Challan, occurrence has taken place on 15.11.1989 wherein on reconciliation of account No. 1804 of Shrine Board it was found that an amount of Rs. 12658/-
deposited vide receipt No. 31 dated 15.11.1989 by Shrine Board Katra had not been credited in the aforesaid account of Shrine Board and thereafter, after enquiry against accused, on 18.11.1991 after more than 2 years FIR has been lodged against accused, the inordinate delay in lodging FIR has remained unexplained which quite often results in embellishment which is a creature of afterthought, on account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of introduction of colored version and such delay would be fatal for the prosecution making the prosecution story unbelievable and unworthy of reliance.
(iii) Prosecution Has Failed To Prove Offence Of 409 RPC:-
It is vehemently argued, that to prove the criminal breach of trust under Section 409 RPC against the petitioner/convict, the prosecution was required firstly to prove the „entrustment of the property‟ and secondly „dishonest misappropriation‟ of the same or converting it to his own use by the petitioner/convict; PW-1 Adarsh Gupta (Branch Manager Katra) in his statement made before the trial court has stated that the statement of accounts were sent to the Shrine Board regularly from 15.11.1989 to 27.06.1991 and during the said period the Shrine Board never complained any misappropriation of money, that from their Account No. 1804 some money has been transferred to other accounts of the Shrine Board, therefore, even if the receipts have been issued by the petitioner/convict, the prosecution has not been able to prove the ingredients of the offence under Section 409 CrPC as no witnesses examined by the prosecution has deposed any incriminating evidence against the petitioner/convict of having committed any breach of trust and misappropriation of the amount and 7 CRR No. 46/2008 converting it into his own use, the audit report and reconciliation document which forms the base of the charge sheet produced against the petitioner have neither been made part of the charge nor produced before the trial court, the charge of misappropriation of Rs.12660/- on 15.11.1989 is incorrect, the amount alleged to have been misappropriated on that day does not tally with the charge as the petitioner is alleged to have deposited Rs.6660/-
which cash was found in excess and deposited in Sundry Account of the Bank, most of the prosecution witnesses have stated that the petitioner must have paid the excess amount inadvertently which goes to show that there was no dishonest misappropriation of money on the part of the petitioner, instant case is a fit case where benefit of doubt should have been given to the petitioner/convict as by no stretch of imagination the case has been made out against the petitioner. To support her arguments, learned counsel has relied upon the judgments (i) 2005(1) JKJ 245 [Janak Raj Vs. State of J&K], (ii) 1998 CriLJ 3771 [The State of Maharashtra Vs. Mohan Radhkrishna Pednekar], & (iii) Criminal Appeal No. 337/2003 [M/S Rahmania Coffee Works & anr. Vs. State rep by Deputy Superintendent of Police Special Crime Branh Besant Nagar Madras, rendered by High Court of Madras].
5. I have heard Ms. Zanab Samas Watali, learned counsel for the petitioner and Mr. Suraj Singh, learned Government Advocate appearing for the respondents. I have perused the record of the trial court, the impugned judgments rendered by trial court and appellate court, thoroughly examined the evidence led by the prosecution and by the defense and have also scanned the ratios of the judgments relied upon by the learned counsel for the petitioner.
6. It is pertinent to reiterate here that the case of prosecution has been tried to be proved by the evidence of eight (8) prosecution witnesses out of the listed ten (10) in the charge sheet namely, PW-1 Adarsh Gupta (Manager J&K Bank Branch Katra), PW-2 Chaju Ram (Peon of J&K Bank), PW-3 Manohar Lal Sharma (Chief Accounts Officer, Mata Vaishno Devi Ji Shrine Board), PW-5 Joginder Kumar Anand (Cashier of Shrine Board Katra on 29-11-1991), PW-6 Netar Parkash Anand (District Manager J&K Bank Udhampur), PW-7 Shesh Kumar Khajuria (Manager District Office Udhampur), PW-8 Bushan Gupta (Naib Tehsildar Katra) & PW-9 Baldev Singh (I/O).
8 CRR No. 46/20087. Petitioner/convict before the trial court, to demolish the prosecution evidence, has examined only one witness in defense namely DW-1 Vishnu Ram Mangotra.
8. To prove the charges against the petitioner/convict, the prosecution has adduced the oral as well as the documentary evidence. The prosecution has examined its witnesses as under:-
PW Name of the Witness Role
No.
1. Adarsh Gupta (Manager J&K Bank Registered FIR against
Branch Katra) Petitioner/accused).
2. Chaju Ram (Peon of the Bank) Witness to seizure of Bank
records.
3. Manohar Lal Sharma (Chief Witness to seizure memo
Accounts Officer, Mata Vaishno and application. Devi Ji Shrine Board).
5. Joginder Kumar Anand (Cashier of Witness to seizure memo Shrine Board Katra). EXPW-3/F of five( 5) receipts from him.
6. Netar Parkash Anand (District Witness to confessional Manager, J&K Bank Udhampur) statement/note EXPW-1/A made by accused.
7. Shesh Kumar Khajuria (Manager, Witness who recorded the District Office, Udhampur) confessional statement of accused EXPW-1/A in his handwriting in presence of PW-1 & 6, Adarsh Gupta and Netar Parkash Anand.
8. Bushan Gupta (Naib Tehsildar, Witness to the specimen Katra) writings of the petitioner/ accused.
9. Baldev Singh (Investigating Officer) Conducted investigation.
9. Before coming to the conclusion whether the prosecution has successfully substantiated the charges against the petitioner/convict beyond hilt, I find it pertinent to give brief resume of evidence led by the prosecution before the trial court. Relevant portions of the testimonies of the prosecution witnesses and defense witness can be summarized as under:-
9 CRR No. 46/2008PW-1 Adarsh Gupta (Manager J&K Bank Branch Katra, Registered FIR against petitioner/accused) in his statement deposed that he knows the accused. That on 15.11.89, he was posted as Manager with J&K Bank Katra and the accused was posted as cashier with the said Bank at that time. That Shri Mata Vaishno Devi Ji Shrine Board was maintaining A/C 1804 with the said Bank at that time. That on 15.11.89, the shrine board had deposited an amount of Rs 12658/- with the bank in the said Account and the accused had issued receipt in respect of the same but the entry was not made by him in the scroll book nor the voucher was given to the bank by the accused. That on the same day when the cash was being closed, the accused expressed that he had excess cash of Rs 6,660/-. That the said amount was therefore, deposited in the sundry account of the Bank vide voucher No. 1. That in June, 1991, the bank received a letter from the Shrine board wherein, it was complained that the amount of rupees 12658/-
deposited by them on 15.11.89 had not been credited to their account. They produced the receipt Mark-A showing the deposit of the said amount with the bank. That when the receipt was shown to the accused, he admitted its correctness, but claimed that excess payment of Rs 6,660/- deposited by him related to this receipt and that payment in respect of the rest of the amount was in-advertently made by him without making any entry. That accused made a written note Marked-B in this regard. That accused accepted in writing that he will make the re-payment of Rs, 6000/- in monthly installment. That on 24.10.91, another letter was received by the Bank from the Shrine board wherein, it was complained that they had deposited total amount of Rs. 79,250/- with the bank, but the same is not reflected in their account. The letter is Marked-D. That on the same day, he informed the District Manager about this and the same evening, District Manager came to the Bank. He made enquiries from the accused. That at about 7/7.30 P.M. on 24.10.91, the accused accepted that he had miss- appropriated the said amount. That accused also sought to re- pay all the outstanding amount. He executed the note EXPW1/A in this regard. That voucher for Rs. 6,660/- dated 15/16- 11/89 Mark-D bears the signatures of the accused that he obtained permission from his department orally and lodged the report EXPW1/B. He also handed over the six receipts and confession letter to the police and FIR EXPW1/C as registered by the police which bear his signatures. That the report was sent back by the SHO in order to make the statement of Shrine Board up to date and accordingly letter was written to the Shrine Board. That on 13.11.91, The Shrine Board wrote to them that cash entry up to 27.8.91 was correct and thereafter the report was again sent to police vide No. 1488 dated 16.11.91. On that report, the police registered the FIR. That police seized the books of account of relevant transactions vide seizure memo EXPW1/D. The ledger in respect of Sundry A/C and scroll book were seized vide memo EXPW1/E. That ledger was then kept on his supurdnama vide memo EXPW /F. That 10 CRR No. 46/2008 police recorded his statement. In his cross-examination, he stated that he accused had joined the Katra Branch prior to him. That the day accused made the confession before the District Manager, the charge of cashier was taken from the accused and it was handed over to Bhuneshwar Sharma. That the report was lodged with Police on 30.10.91. That accused originally belongs to Finance Department and he was suspended by the department on 25.11.91. That accused was posted on deputation with the Bank. That Shri N. P. Anand was the District Manager whereas, Shri S. K. Khajuria was the Manager District Office at the relevant time. That he had given the written letter to the accused under which he made the admission. That the District Manager made oral enquiry from the accused and no written charge-sheet was given to him. The District Manager reached Katra at about 5 Pm and left for Jammu on the same day at about 7.30 PM after completing the enquiry. That enquiry was made in his presence and the accused made the confession in his presence. That time no case had been registered with the Police nor any instructions had been given to police to register the case at that time. That he received oral instructions for the registration of case from the divisional office Jammu on 29.10.91 and on the next day he lodged report with the police. That a person depositing money with the bank has to deposit it with the cashier against a receipt and the cashier thereafter sends the vouchers to his officer. That the depositor gets a pass book as well as the statement of the account. That he does not remember when the statement of Account was given to the Shrine Board. That he is not aware about any rule regarding the making of entries in the pass book. That the Shrine Board does not withdraw the money from this Account, but they withdraw it after transferring it to another account. That from 15.11.89 to 27.06.91, the statement of account was given to the Shrine Board every month but they did not make any complaint with regard to miss-appropriation of any amount during this period and during this period the money used to be transferred by them to another account. That it was a big account, as such, no pass book was issued to the shrine board instead statement of account was issued. That as per the receipt, the cash in dispute had been deposited with the Bank. The deposit of money can be checked from the scroll of the cashier and Manager. However, in large banks, first the numbering is given and then the amount is deposited with the cashier. That counter-foils of the receipt is given by the cashier to his officer. The accused had not given the voucher in respect of the miss-appropriated amount to his officer nor had he made any entry in the scroll in this regard. The numbering on the receipts is given by the cashier.
PW-2 Chaju Ram (Peon of the Bank, witness to seizure of Bank records) has stated that in the year 1991, he was posted with J&K Bank Katra. That accused was posted as cashier with the said Bank at that time. That Shrine board was having its accounts with the said bank and the police seized the records of the bank vide seizure memo EXPW-1/D as there was 11 CRR No. 46/2008 some misappropriation in the said account. The witness identified the ledger and the cash scroll book seized by the police. The seizure memo EXPW-1/F bears his signatures. The seizure memo EXPW-1/G also bears his signatures. That the letters on record are the same as were seized by the police. That at the relevant time, PW Adarsh Gupta was the Manager of the Bank. In his cross-examination, he stated that he has no personal knowledge about the misappropriation. That he does not know about the contents of the seized letter. Perhaps, the letters were seized on 26.11.91. That he is employee as a Peon with the bank. That he does not remember the number of registers seized by police. That the seizure was made by SHO PS Katra.
PW-3 Manohar Lal Sharma (Chief Accounts Officer, Mata Vaishno Devi Ji Shrine Board, witness to seizure memo and application) has stated that he is working as Chief Accounts Officer with Mata Vaishno Devi Ji shrine board for the last 2 years. That in May/June, 1991, Audit of the accounts of Shrine Board was going on for the year, 1989-90. That during reconciliation some amount deposited in A/C no. 1804 with J&K Bank Katra could not be traced. That he obtained the receipts in respect of the amounts and informed the Bank about it. The amounts shown in the receipts issued in favour of Shrine Board had not been credited to its account. That he wrote the First letter to J&K Bank on 27.06.91. He does not remember, whether any other letter was written by him to the Bank prior to this. That letter EXPW-3/A bears his signatures. That letter dated 24.10.91, Mark-D, also bears his signatures. That letter dated 13.11.91, EXPW-3/B also bears his signatures and this letter was sent by him to the Bank. That seizure memo in respect of cash book EXPW-3/C also bears his signatures. That seizure memo EXPW-3/D in respect of photocopies of relevant pages of cash book also bears his signatures. That police also seized the original records and then the original cash book was kept on supurdnama of PW Bhuvinder Kumar vide supurdnama EXPW-3/E. That police seized five receipts from him vide seizure memo Expw-3/F. That the receipts on record on the file bears his signatures at their back. That he wrote letter dated 13.11.91 and 24.10.91 to the Manager J&K Bank. In his cross examination, he stated that he does not personally go to the Bank to deposit the money. That audit was conducted on 27.06.91. That he has not seen the original cash book in court nor does he know the whereabouts of the original letters. That he does not know whether his predecessor had written any letter to the Bank.
PW-5 Joginder Kumar Anand (Cashier Shrine Board Katra, witness to seizure memo EXPW-3/F of five (5) receipts from him) in his statement deposed that on 29.11.91, he was posted as cashier with shrine board Katra. That the board has its account with J&K Bank Katra. That Police seized five receipts from him vide seizure memo Expw-3/F. That original cash book was kept on the superdnama of PW Bhuvinder Kumar vide memo EXPW 3/B. That he has seen the 12 CRR No. 46/2008 counterfoils three in number Exp-A. That these entered in the cash book. That sale proceeds from Adhkawari for 5.10.90 were Rs. 11,337/- and the same were deposited with the J&K Bank and the same is entered in the cash book. The sale proceeds of 15.11.89 amount to Rs. 12658/- and the same are reflected in the cash book. The sale proceeds from Bhojanalaya for 14.07.90, amounting to Rs. 11,509=50 is also reflected in the cash Book. All these three entries are correct as per the cash book. That seizure memo EXPW-3/P in respect of photo- copy of cash book bears his signatures. That seizure memo EXPW-3/C also bears his signatures. That he has brought the cash book to court. In his cross-examination, he stated that he has only brought the relevant portions of the cash book. That cash book is not in his writing. That the pages of the cash book were taken out at the time of seizure. He is not aware about the method of preparing the cash book. That the cash book does not reflect the receipt numbers in respect of deposits made in the bank. That he does not know as to who used to go to the bank for depositing the money. The seizure memos were prepared by the police in the office. That police took away the receipts but kept the cash book on supurdnama.
PW 6 Netar Parkash Anand, (District Manager, J&K Bank Udhampur, witness to confessional statement/note EXPW-1/A made by accused) in his statement deposed that the year, 1991, he was posted as District Manager of J&K Bank at Udhampur. That accused was performing the duties of cashier with JK Bank Katra, during the period. That on 24.10.91, Branch Manager Katra informed him that the accused has miss-appropriate the money of shrine Board. That on the same day, he along with Manager Personnel Shri Sheesh Kumar Khajuria went to Katra to investigate the case. That accused confessed his guilt. That receipts in respect of deposits made by the Shrine Board Katra have been signed by the accused, but the same are not reflected in the books of the bank. That this shows that accused has miss-appropriated the said amount and the accused confessed his guilt and gave it in writing. That confession was made by accused voluntarily and the case had not been registered by them. The confession was written by the accused himself. The confession note EXPW-1/A bears his signatures as witness. That thereafter, he instructed the Manager PW Adarsh Gupta to get the case registered and accordingly the case was registered. That when the cashier issued a receipt, it is his duty to enter it in the cash scroll and make the entries in the concerned column. That after receiving the voucher from the cashier, the ledger clerk makes the entry and the officer makes the authentication. That voucher has two parts. One part remains with the Bank whereas, the other part is issued to the depositor. That the deposits received by the accused from the Shrine Board from time to time were not entered by him in his scroll book. That the amounts deposited by the shrine Board were miss-appropriated by the accused. The total amount came to about Rs. 79241/-. In his cross- examination, he stated that he made enquiries from accused in 13 CRR No. 46/2008 the Hall of the Bank, but his statement was not recorded. That he did not check any scroll or register or receipt nor did he record the statements of Manager or the clerk. That he reached the Bank at about 5 P.M on 24.10.91. That time of Public dealing is from 10 A.M to 2 P.M and the bank remains open up to 5 P.M. That Katra branch of the bank was under his jurisdiction including the accused and other employees of the said Bank(branch). That when the accused was asked about the matter, he confessed his guilt and executed the note of confession. That he remained in the Bank for about 2 hours. That he witnessed the note of confession at about 7.10 P.M. That Shri Shesh Kumar Khajuria also signed the note of confession as witness PW Adarsh Gupta also signed it. When the accused made the confession, he instructed for registration of the case. The confession was written by accused there only. That police did record his statements that accused had told him that on 16.11.89, out of the amount of Rs 12658/- deposited by Shrine Board on 15.11.89, he had deposited an amount of Rs. 6660/- in the Sundry account of the Bank and regarding the rest of the amount of Rs 6000/- the accused expressed, he might have made excess payment to somebody inadvertently. That at the time of making confession, the accused was not extended any offer of pardon. However, the accused was asked to keep in mind Mata Vaishno devi and thereafter, the accused made the note of confession. That sometimes, the cashier can make excess payment inadvertently. That misappropriation has taken place since, 1989, but the Bank cannot take any action unless, the Account holder makes any complaint. That he cannot tell as to where the accused spent the misappropriated money for his own use.
PW-7 Shesh Kumar Khajuria, (Manager, District Office Udhampur, witness who recorded the confessional statement of accused EXPW-1/A in his handwriting in presence of PW-1 & 6, Adarsh Gupta and Netar Parkash Anand) in his statement deposed that in October, 1991, he was posted in District office Udhampur. That accused was posted as cashier with the Bank at Katra. That he recorded the statement of accused, which is in his hand writing. That statement EXPW/1/A was recorded by him in presence of Adarsh Gupta and N.P Anand. That the accused and the other witnesses signed this note. That accused had misappropriated the amounts, hence, PW Adarsh Gupta got a case registered against the accused. In his cross-examination, he stated that he has no personal knowledge whether the accused brought the misappropriated money to his own use or not however, as per the statement of the accused, he misappropriated the money. That he alongwith District Manager Udhampur went to Katra for enquiring into the case. That the Statement of the accused does not bear any note to the effect that its contents were read over and explained to the accused and he accepted it as correct. That the accused was not warned that he was not bound to make the confession. That he is not aware as to whether the case was registered at the time when the accused 14 CRR No. 46/2008 made the confession or not. That the statement of accused was recorded at 7.10. PM in the cabin of branch Manager Katra, in presence of the Manager of the Katra branch. That banking time was from 10 A.M to 5 PM. That EXPW1/A is in his hand writing. That he did not study the bank record, but it was already inspected by the Manager of the Bank. That he is not aware as to whether any complaint had been received from the Shrine Board by them or not. That he knows the accused because he was working with the bank.
PW-8 Bushan Gupta (Naib Tehsildar, Katra, Witness to the specimen writings of the petitioner/ accused) in his statement deposed that in December, 1991, he was posted as Naib Tehsildar Katra. That accused Bishan Dass was brought before him by the investigating officer and the accused made the specimen writings in his presence and he attested the same in the capacity of a Magistrate. That annexure-A and B bear his endorsement and the same are marked EXPW-8 and EXPW- 8/A. In his cross-examination, he stated that he does not remember whether the request for attestation of specimen writing of accused was made by Police orally or in writing. However, there is no written request on record. That he did not know the accused before and nor did he get the accused identified. That he did not write the name, parentage and the residence of the accused separately. However, it was written at the time of attestation. That accused himself orally disclosed that he was Bishan Dass, the cashier of the Bank. That he does not remember, whether he recorded any statement of the accused before getting his specimen writing. That he has served for 23 years and he has dealt with many such cases. That accused was not compelled to make the specimen writing, he did it voluntarily. That he did not warn the accused that he is not bound to make any specimen writing and that such writing can be used against him. However, he told the accused about it orally but there is no such nothing. That accused was accompanied by Sh Baldev Singh, SHO, who was also the investigating officer. That he does not know wherefrom the accused was brought by the police. That he does not entertain oral requests but acts on the basis of written application. That writing EXPW8/A was written by the accused himself at his instance and that it was not dictated to the accused by him. That at that time, SHO Baldev Singh was present in the court room. That accused was in hand-cuffs at that time. That accused was hand-cuffed on his left hand and he was carried by the constables. That accused made the writing with a ball pen with his right hand. Thereafter, the accused was again taken by the police.
PW-10 Baldev Singh [Investigating officer (I/O)] in his statement deposed that in the month of November, 1991, he was posted in police station Katra. That after registration of FIR No. 192/91 for offenses U/S 409/420/RPC against the accused, he conducted the investigation of the case. That letter dated 30.10.91 along with six enclosures was written to him by PW Adarsh Gupta, Manager of the Bank and he sent it back to the 15 CRR No. 46/2008 Manager asking him to send after reconciliation of the account up to date. That on 18.11.91, the Manager, brought to him the FIR alongwith 7 enclosures and he registered the FIR EXPW/B on the basis of this. That during investigation of the case, he prepared the site map EXPW/O. That he seized the register and cash of the Shrine Board in their office from PW Pavinder vide seized memo EXPW 3/C in presence of the witnesses. That photo copies of cash book of Shrine Board were seized by him vide memo EXPW 3/D. That cash book seized vide memo EXPW 3/C was kept on supurdnama of PW Pavinder vide memo EXPW-3/E. That register in respect of Saving Bank and cash scroll of J & K Bank Katra as produced by PW Adarsh Gupta was seized by him vide memo EXPW/D. That Photostat copies of Saving Account ledger sheets and scroll book were seized vide seizure memo EXPW 1/E. That ledger No 17 from 28.04.88 to 30.09.90. Ledger No 17 from 1-10-90 to date and the scroll book were kept on supurdnama of PW Adarsh Gupta vide meme EXPW 1/E. That the letters written by Shri M. L. Sharma Chief Accounts officer, Shrine Board, the letters dated 13.8.91, 27.9.91 and 24.10.91, whereby the accused made the confession. Transfer order Tok/167-68 dated 8-11- voucher No.1, whereby Rs. 6660/- were deposited with/sundry Account of the Ban, were seized vide memos EXPW 3/F. That photocopy of Scroll dated 15.11.91 (EXPW-10/i), photocopy of Scroll dated 14.10.90, (EXPW-10/2) and photocopy of Scroll dated 1-10-90(EXPW 10/3) are correct as per original record. That photo copy of Saving Bank Account No. 1804 of Mata Vaishno Devi Ji Shrine Board dated 15.11.89, July 90 and Oct. 1990 (EXPW-10/4) and EXPW 10/5, EXPW 10/6) are correct as per original record. That since accused had committed offences of similar nature within a period of more than one year, therefore, out of FIR 192/91, another FIR 72/92 was registered. That investigation of the said FIR was also conducted by him. That photo copies of the documents seized, seizure memo were enclosed with the said file, which was found correct as per the original record. These are EXPW 10/7. EXPW 10/8, and EXPW 10/9. That extracts of saving Bank A/C No. 1804, of Shrine Board for April 1991, EXPW 1/0, 1/P, 1/Q, 1/R, 1/S are correct as per original record. That photo copies of letters dated 2-4-91, 11,4,91, original specimen writing on record on file of FIR No. 192/91 and photo-copy of letter written to FSL Direct & Udhampur are correct as per record. That the FIR NO. 72/92 EXPW 10/10 is in his hand writing. That after investigation of the case, offences u/s 409/420/RPC were found proved against the accused and thereafter both the challans were filed against the accused. In cross-examination, he stated that FIR NO. 192/91 was registered on 18-11-91 whereas offence was committed on 15-11-1989. That delay was due to the reason that Shrine board reconciled its account no 1804 on 27-6-91 and found that the amount deposited by them vide receipt No. 31 dated 15-11-91 had not been credited to their account. Thereafter, the Bank after enquiry, found that the receipt had been issued by the accused who was on deputation as cashier 16 CRR No. 46/2008 with the Bank. That it took time for the Bank and the Shrine Board to verify the facts, as such the case was registered on 18-11-91. That after the verification, it was further found that amounts deposited vide receipts nos. 71 dated 2-4-91, 16 dated 14-7-90, dated 15-11-89, 30 dated 11-4-91 and 63 dated 1.10.90 had not been credited to Account No 1804. That in FIR No 192/91 total misappropriation made on 15-11-89, 14.7.90 and 1-10-90, amounted to Rs. 35504.50. That during investigation, it was also found that accused during the enquiry by the Bank had admitted that on 15-11-89,an excess amount of Rs. 6660/- was found, which was deposited in sundry account of the Bank and the balance amount of Rs. 600/- was not credited to any account. Thus accused admitted his guilt. That accused was on deputation with the J&K Bank since 1988 and at the time of the case, was posted there. That accused had offered to repay the amount in installments in presence of the officers of the Bank on 27.09.1991.
10. The 1st argument urged by Ld. Counsel for petitioner/convict is, that the confessional note/statement in the form of extra judicial confession has been extracted from petitioner under inducement, threat and promise by his superior officers (persons) in authority i.e. the Managers of the J&K Bank namely, PW-6 Nater Parkash Anand, PW-7 Sheesh Kumar Khajuria & PW-1 Adarsh Kumar, the said extra judicial confession is hit by section 24 of the Evidence Act and is inadmissible in evidence.
It is pertinent to mention here, that in FIR No. 192/91 petitioner/convict has been charged for commission of offence of criminal breach of trust u/s 409 RPC for the allegations that on 15.11.1989, 14.07.1990 and 01.10.1990 he while being posted as cashier in J&K Bank Katra committed the criminal breach of trust (embezzlement) of the amount of ₹12658/-, ₹11509/- and ₹11337/- respectively which was deposited by Shrine Board Katra. In another FIR No. 72/91 petitioner/convict has been charged for commission of offence u/s 409 RPC for the allegations that on 02.04.91 & 11.04.91 he while being posted as cashier in J&K Bank Katra committed criminal breach of trust of money in the sum of ₹ 27136/- & ₹16601/- deposited by Shrine Board Katra.
The confessional note/statement in the form of extra- judicial confession is alleged to have been made by petitioner/convict on 24.10.91 vide exhibit EXPW1/A in presence of witnesses namely, PW-6 Nater Parkash Anand (District Manager J&K Bank Udhampur), PW-1 Adarsh Gupta 17 CRR No. 46/2008 (Manager J&K Bank Katra) & PW-7 Sheesh Kumar Khajuria (District Manager J&K Bank Udhampur). For the sake of clarity the said extra judicial confession/note/statement reads as under:-
"I Bishan Dass S/O Sh. Janki Parshad Govt. Cashier deputed to J&K Bank B/O Katra in the office of B/O Katra on 24.10.91 at 5.45 pm in the presence of District Manager J&K Bank Udhampur Sh. N.P. Anand, Sh. Adarsh Gupta Manager B/O Katra and Sh. Sheesh K. Khajuria Manager JK Bank District Office Udhampur submit my statement regarding misappropriation of five (5) cash receipts (1) No.31 dt. 15.11.89 for Rs. 12658=00 (Rs. Twelve thousand six hundred fifty eight only), (2) Receipt No. 16 dt.14.07.90 for Rs. 11509=50 (eleven thousand five hundred nine and paisa 50 only), (3) No.63 dt. 01.10.90 for Rs. 11337=00 (Rs. Elven thousand three hundred thirty seven only), (4) No. 71 dt.
02.04.91 for Rs. 27136=00 (Rs. Twenty seven thousand one hundred thirty six only), (5) No.31 dt. 11.04.91 for Rs. 16601=00 (Rs. Sixteen thousand six hundred one only) for creditable to Shri Mata Vaishnavi Devi Shrine Board (All) S/B account No. 1804 as under:-
(1) Rs. 6660=00 (Rs. Six thousand six hundred sixty on) was found excess on counter on 15.11.89 which was deposited in the sundry account on the next date i.e. 16.11.89, Rs.
6000=00 (Rs. Six thousand) may have been paid in excess to any party which was not traced.
(2) Regarding receipts No. 2 to 5 have been issued under my signatures the amount has been utilized by me for my personal use.
(3) I will be responsible if any more receipts are traced under my signatures."
24.10.91 7.10pm Bishan Dass Cashier Under deputation to J&K Bank Katra Witnesses:-
1. N.P Anand District Manager J&K Bank Udhampur.
2. Adarsh Gupta Manager J&K Bank Katra.
3. S.K. Khajuria Manager District office JK Bank Udhampur.
Section 24 of Indian Evidence Act 1872 deals with the provision of confession caused by inducement, threat or promise. For the sake of brevity Section 24 is reproduced as under:-
24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,1 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the 18 CRR No. 46/2008 Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise,2 having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
The expression "confession" has not been defined in the Evidence Act. Stephen in his Digest of the Law of Evidence, Art. 21, defines it thus: "A confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime". Confessions may be divided into judicial and Extra-judicial. Judicial confessions are those which are made before the Magistrate or in the court in the due course of legal proceedings and it is essential that they may be made of the free will of the party and with full knowledge of the nature and consequences of the confession. Section 164 of Cr.PC deals with the mode of recording confessional statements of accused made during investigation or at any time afterwards, but before the commencement of the preliminary enquiry on trial. Extra-judicial confessions are these which are made by party elsewhere than before a Magistrate or in court, this term embracing not only express confessions of crime, but all those admissions and acts of the accused from which guilt may be implied. All voluntary confessions of this kind are receivable in evidence on being proved like other facts. The evidence of extra-judicial confession in the very nature of things is a weak piece of evidence. Extra-judicial confessions should be proved in the same way as other admissions or statements by the evidence 19 CRR No. 46/2008 of the persons to whom they are made or who heard them made or by the documents (if any) in which they are recorded. Like judicial confessions made before a Magistrate, an extra- judicial confessions may also be obtained by coercion, promise of favour or false hope. An extra-judicial confession may properly be made to any person, or collection or body of persons. Section 164 of Cr.PC deals with recording of confessions and statements. For the sake of clarity Section 164 Cr.PC is reproduced as under:-
S. 164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-"
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence 20 CRR No. 46/2008 against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
Threadbare reading of Section164 Cr.PC make it manifestly clear, that the confessional statement if any has to be recorded during the course of investigation, and the expression „in the course of investigation‟ will not include the period prior to the commencement of investigation and this section will not consequently govern a statement or confession recorded prior to the commencement of the police investigation. Sub- section 2 of Section 164 Cr.pc requires four things to be done--(1) it enjoys on the Magistrate the duty to explain to the persons making the confession that he is not bound to make confession; (2) if he makes a confession, it may be used as evidence against him; (3) the Magistrate must be satisfied and should believe that the confession was voluntarily made; and (4) the Magistrate shall make a memorandum at the foot of the record indicating therein, that he has explained to the accused that he is not bound to make a confession and that if he does so any confession he may make may be used as evidence against him and he was believes that this confession was voluntarily made, it was taken in his presence and hearing, and read over to the person making it and admitted by him to be correct and it 21 CRR No. 46/2008 contains full and true account of the statement made by the said person.
An extra-judicial confession made to one who is not person in authority and which is free from any suspicion as to its voluntarily character has a ring of truth in it and is admissible in evidence. Extra-judicial confession are required to be proved in the same manner as other admission or statements. Perusal of confessional note/statement EXPW1/A in the form of extra- judicial confession as relied by the prosecution in the case in hand, appears to have been made by petitioner/convict and recorded on 24.10.1991 which is much prior to the registration of FIR in the case in hand on 18.11.1991. Therefore, the said confessional statement is not recorded in the course of investigation of the case, as at the time of it‟s recording on 24.10.1991 no FIR was registered against petitioner/convict, and therefore, section 164 Cr.PC would not govern such statement or confession recorded prior to commencement of police investigation which is hit by section 164 Cr.PC. Generally speaking, a "person in authority" within the meaning of Section 24 of the Indian Evidence Act 1872 is one who is engaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him. In the case in hand, petitioner/convict at the relevant time of occurrence was cashier in J&K Bank Branch Katra, his confessional statement/extra- judicial confession is alleged to have been recorded on 24.10.1991 at 7.10pm in presence of 3 witnesses who are his superior officers of the bank namely, PW-6 Nater Parkash Anand (District Manager J&K Bank Udhampur), PW-1 Adarsh Gupta (Manager J&K Bank Katra) & PW-7 Sheesh Kumar Khajuria (District Manager J&K Bank Udhampur). The contents of confessional statement/note EXPW1/A depict, that before recording such statement, petitioner/convict has not been asked that he is not bound to make such confession and if he makes the confession that may be used as evidence against him, and there is even no note/memorandum at the foot of confessional statement EXPW1/A that the confessional statement has been 22 CRR No. 46/2008 read over and explained to the petitioner/convict who voluntarily has admitted it as true and correct. In absence of the aforesaid safeguards available to petitioner/convict, and not making mention of them in his confessional note EXPW1/A, the said confessional statement lacks it‟s voluntarily nature and appears to have been made by petitioner/convict before his aforesaid superior officers of the bank under inducement, threat or promise, and thereafter, the said confessional note/statement EXPW1/A relied by the prosecution in the form of extra-judicial confession is hit by section 24 of the Evidence Act and inadmissible in evidence.
Furthermore, PW-6 Nater Parkash Anand (District Manager J&K Bank Udhampur) in his deposition before the trial court has categorically putforth evidence, that accused confessed his guilt and accused himself wrote the confessional statement EXPW1/A voluntarily, upon which he, PW-1 Adarsh Gupta (Manager J&K Bank Katra) & PW-7 Sheesh Kumar Khajuria (District Manager J&K Bank Udhampur) appended their signatures. PW-7 Sheesh Kumar Khajuria (Manager District Office Udhampur) has grossly contradicted the testimony of PW-6 Nater Parkash Anand by deposing, that he himself recorded the statement of accused EXPW1/A in his handwriting. As PW-6 &7 have putforth highly contradictory versions in regard to the writing of confessional statement of petitioner/convict, it is uncertain and shrouded with mystery as who wrote the confessional note/extra-judicial confession of the petitioner/convict. Therefore, by no stretch of any imagination, the confessional statement/extra-judicial confession EXPW1/A alleged to have been made by petitioner/convict is admissible in evidence.
In 1961 CriLJ 258 [Mst. Viran Wali vs State] relied by Ld. Counsel for petitioner/convict, Hon‟ble J&K High Court while acquitting appellant u/s 302 RPC sentenced to life imprisonment for murder of her child and appreciating the provision of law in regard to extra-judicial confession made by said appellant/convict nurse before her superior officer Dr. 23 CRR No. 46/2008 Prabha Sharma, in paras 10,11,13 of the judgment held as under:-
10. In the present case, as already indicated, there being no material to show that at the time when the appellant was examined by Dr. Sharma there was any accusation against her, the first essential condition for the application of this Article is not fulfilled. We are, therefore, of the opinion that Article 20 cannot be successfully invoked in this case.
The contention of Mr. Sharma, on this point, is therefore, overruled.
11. I shall now deal with the confession made by the appellant to Dr. Sharma and other witnesses. In this connection Mr. Sharma has placed before us the entire evidence and has submitted that as the prosecution evidence clearly shows that the confession was made under threat and inducement it is inadmissible under the provisions of Section 24 of the Evidence Act. It appears from the evidence of Dr. Sharma that at the time when the confession was made to her, Staff Nurse Isher Devi, Krishena Sharma Nurse, and Kuldeep Nurse were present. P.W. Krishena Sharma says at page 5 that the appellant was questioned for about half an hour and thereafter she made the confession. She further states towards the close of her statement that before the confession the Lady Doctor told her (the appellant) that she should tell the truth and that nothing will happen to her service if she tells the truth. The? exact words used by the witness in her evidence are as follows:
13. The Advocate General on the other hand submitted two serious arguments to rule out the application of Section 24 of the Evidence Act. In the first place he contended that Dr. Sharma to whom the confession was made was not a person in authority as envisaged by Section 24 of the Evidence Act. In support of his contention he relied mainly on a Full Bench decision of the Patna High Court reported in AIR 1933 Pat 149, Santokhi Beldar v. Emperor where their Lordships of the Full Bench have made the following observations:
There is no statutory definition of the words "person in authority" but it is well established that the words have reference to a person who has authority to interfere in the matter under inquiry.... The reported cases on the point show that, generally speaking, a "person in authority within the meaning of Section 24 is the one who is engaged in the apprehension, detention or prosecution of the accused or the one who is empowered to examine him. In my opinion, the question as to whether a person to whom a confession has been made is a person in authority would naturally depend on the circumstances of each case having regard to the status of the accused in relation to the person before whom the confession is made. The words "person in authority must be liberally construed because the legislature seems to have broadened the ambit of the section. Contrasting Section 24 with Section 25, it appears that whereas Section 25 deals with confession to a 24 CRR No. 46/2008 police officer, Section 24 deals with confession made to police officers or other persons of influence. The question as to who is person in authority does not seem to be free from difficulty. There is no doubt the view of the Patna High Court that a person in authority is one who is in charge of prosecuting, conducting, or defending cases. There is on the other hand a number of authorities which seem to have taken a more liberal view of the matter. In Bhagabaticharan v. Emperor AIR 1933 Cal 644, which is a Full Bench decision, it has been laid down, that even a superior officer of an accused is a person in authority. To the same effect is a later decision of the same court reported as GungaProsad v. Emperor AIR 1945 Cal 360. To the same effect is also the decision reported in AIR 1917 Sind 65, Loung Rashid v. Emperor. In Emperor v. Attursing AIR 1932 Sind 64, manager of the office where the accused was employed was held to be person in authority. Similar seems to be the view of the Lahore High Court in the case reported as Mahomed v. Emperor. AIR 1936 Lah 264. In E.D. Smith v. Emperor AIR 1918 Mad 111 it was held that the words "person in authority" are wider in the meaning than the actual prosecutor. I, therefore, propose to construe the words "person in authority in the light of the decisions mentioned above.
Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that if a confession is made under threat or inducement to a person in authority such confession is hit by section 24 of Evidence Act and is inadmissible in evidence. In the case law (Supra)appellant/convict a nurse on duty in male eye ward in S.M.G.S. Hospital Jammu accused for murder of her child made confession before Dr. Prabha Sharma who was person in authority within the meaning of Section 24 Evidence Act, and the said extra-judicial confession was held inadmissible as made under inducement.
In CRIMINAL APPEAL NOS.333-334 of 2017 [SHALINDRA RAJDEV PASVAN AND OTHERS--
APPELLANT(S) VERSUS STATE OF GUJARAT ETC.-- RESPONDENT(S)] Hon‟ble Supreme Court while acquitting appellants/convict for commission of offences punishable u/ss 302,363,364,364-A, 365, 120-B IPC r/w 21(1)(a) of Arms Act and Section 3&5 of Indian Explosive Act, and while appreciating aspect of the provision of law in regard to evidentiary value of extra- judicial confession in para 19 of the judgment observed as under:-25 CRR No. 46/2008
19. In Sahadevan v. State of T.N. 5 referring to the aspect of evidentiary value of extra-judicial confession, it was observed:
"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration."
Elaborating on the jurisprudence that has evolved with regard to extra-judicial confessions, this Court in Sahadevan (supra) had stipulated the principles that are required to be kept in mind while relying on extra-judicial confession as evidence. These principles have been succinctly mentioned in Jagroop Singh v. State of Punjab6 as:
"30. Recently, in Sahadevan v. State of T.N., after referring to the rulings in Sk. Yusuf v. State of W.B. and Pancho v.State of Haryana, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be State of Haryana, a two-Judge Bench has (2012) 6 SCC 403 (2012) 11 SCC 768 laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra-
judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law."
Ratio of the judgment (Supra) further makes it manifestly clear, that extrajudicial confession is weak piece of evidence and court must ensure that the same inspires confidence and is not contradicted by the other prosecution evidence, however, if extra-judicial confession suffers from material discrepancies or inherent improbabilities, it may be difficult for the court to base conviction on such confession. Ratios of the judgments (Supra) 26 CRR No. 46/2008 squarely apply to the facts of the case in hand. It is apt to reiterate here, that the extra-judicial confession/note EXPW1/A dated 20.10.1991 relied by the prosecution is shrouded with mystery as who wrote the said confessional note/statement. There is not an iota of utterance/noting/memorandum that the said confessional statement/note/extra-judicial confession has been made by petitioner/convict voluntarily. Further there is no material evidence on record to show that at the time when petitioner/convict made the said extra-judicial confession there was any accusation against him. As per the evidence of PW-7 Shesh Kumar Khajuria (Manager District Office Udhampur) the bank timing at the relevant time when the confessional statement is alleged to have been made by the petitioner was from 10am to 5pm, however, the confessional statement of the petitioner EXPW1/A was recorded at 7.10 pm in the cabin of Branch Manager Katra, which clearly demonstrates/establishes that after office hours the said confessional statement is extracted by the bank officials being superior in authority to the petitioner under inducement and the same is not voluntary and inadmissible u/s 24 of Evidence Act, as such no reliance can be placed on the genuineness/creditworthiness of said confessional note/statement EXPW1/A.
11. The 2nd argument portrayed by Ld. Counsel for petitioner/convict is, that the occurrence has taken place on 15.11.1989 wherein on reconciliation of account No. 1804 of Shrine Board Katra it was found that an amount of Rs. 12658/- deposited by Shrine Board Katra vide receipt No. 31 dated 15.11.1989 has not been credited in the aforesaid account of Shrine Board and therefore, after enquiry against petitioner/convict, on 18.11.1991 after more than 2 years FIR has been lodged against petitioner, the inordinate delay in lodging FIR has remained un-explained resulting in embellishment and introduction of coloured version making the prosecution story unbelievable, concocted and unworthy of reliance.
The issue whether prosecution case is liable to be thrown out on the ground of inordinate delay in lodging FIR is no longer res-integra and stands settled by catena of the decisions of Apex Court. The Apex Court in the case of Apren Joseph alias Current Kunjukunju and others Vs. State of 27 CRR No. 46/2008 Kerala reported in AIR 1973 Supreme Court 1, has observed as hereunder:-
"Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and another Vs. State of Punjab reported in AIR 2001 SC 3576, is reproduced herein below:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgement to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite 28 CRR No. 46/2008 common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. In Tara Singh vs. State of Punjab (1991 Suppl. (1) SCC 536) Hon‟ble Supreme Court made the following observations:
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief- stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
In State of Himachal Pradesh Vs. Gian Chand reported in AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:-
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."
Ratios of the judgments (Supra) squarely apply to the facts of the case in hand. It is apt to reiterate here, that the allegations against petitioner/convict are, that on 27.06.1991 Chief Accounts Officer of Shrine Board Katra through a written communication informed J&K Bank Ltd. Brach Katra that the 29 CRR No. 46/2008 amount deposited by Shrine Board in the Katra Branch of Jammu & Kashmir Bank in it‟s account No. 1804 on 15.11.1989 was not credited into their account and on further enquiry and reconciliation of accounts it was found that amounts of Rs. 12650/-, Rs. 11509/-, Rs. 11337/-, Rs. 27136/- and Rs. 16601/- deposited by the Shrine Board Katra were not credited into their aforesaid account no. 1804, which led to registration of FIR against petitioner on 18.11.1991. It is pertinent to mention here, that the occurrence is of 15.11.1989 and after an inordinate delay of 2 years (730 days) FIR has been registered against petitioner/convict on 18.11.1991. PW-3 Manohar Lal Sharma (Chief Accounts Officer Mata Vaishno Devi Ji Shrine Board Katra) who wrote first letter to J&K Bank on 27.06.1991 for registration of FIR, has putforth evidence before the trial court that in May/June 1991 audit of accounts of Shrine Board was going on for the year 1989-90 and during such audit/reconciliation some amount deposited in account No. 1804 of Shrine Board Katra with J&K Bank Katra could not be traced, which clearly demonstrates that even if the offence of misappropriation/embezzlement of money against petitioner/convict was traced in the month of May/June 1991, the FIR was registered against petitioner/convict on 18.11.1991 even after a delay of more than 5 months (150 days). PW-10 Baldev Singh (I/O) in his cross-examination has admitted that the offence is alleged to have been committed by petitioner/convict on 15.11.1989 and FIR no. 192/91 was registered against him on 18.11.1991. I/O has tried to explain the delay by deposing that the delay was due to the reason that Shrine Board reconciled its account No. 1804 on 27.06.1991 and found that amount deposited by them vide receipt No.31 dated 15.11.1989 was not credited into their account. The deposition of PW-10 Baldev Singh (I/O) clearly demonstrates that there is delay of almost 2 years or at least 5 months in lodging FIR against petitioner/convict and the same has remained unexplained by the prosecution. In light of ratios of the judgments (Supra) and critical appraisal of the evidence 30 CRR No. 46/2008 tendered by PW-3 & PW-10 aforesaid, inordinate and un- explained delay aforesaid in lodging FIR against petitioner/convict has quite often resulted in embellishment which is creature of afterthought, whereby, the FIR not only gets bereft of the advantage of spontaneity but danger creeps in of introduction of coloured version, concocted story as a result of consultation and deliberation which has demolished the very edifice of the creditworthiness/reliability of the prosecution case.
12. The 3rd argument canvassed by Ld. Counsel for petitioner/convict is, that the prosecution in the case in hand has utterly failed to prove the essential ingredients of the offence of section 409 RPC in regard to Criminal Breach of Trust by misappropriating (embezzlement) of the money as the essential ingredients of the said offence i.e. (i) the entrustment of the money and (ii) dishonest misappropriation of the same or converting it to its own use by petitioner/convict has not been proved.
In 2005 (1) JKJ 245 [Janak Raj vs State] relied by Ld. Counsel for petitioner/convict, while acquitting the accused/convict a store keeper of Irrigation Division Dharmari Mahore District Reasi for commission of offence Under Section 409 RPC for embezzlement of Rs. 6000/- as sale consideration of 200 bags of cement received by him, Coordinate Bench of this Court in paras 11, 12&13 of the judgment observed as under:-
11. In order to complete the commission of offence and hold the accused, Janak Raj, guilty of criminal breach of trust by misappropriating (embezzlement) of the money, it was incumbent upon the prosecution to prove criminal conspiracy with accused Bishan Dass and dishonest misappropriation of money by accused Janak Raj.
12. The case of the prosecution with regard to entrustment of 200 bags of cement is also admitted by the accused. The only question required to be proved by sufficient and cogent evidence is, was there a criminal conspiracy and misappropriation of money by accused Janak Raj? There is not an iota of evidence adduced by the prosecution to prove that there was an agreement to do an illegal act between Janak Raj accused and Bishan Dass, nor there is any evidence, circumstantial or direct, to prove that the sale proceeds of the cement sold in black-marketing were received or shared by accused Janak Raj.
13. Another evidence reached upon by the prosecution is recovery of Rs. 6,000/- from the personal search of the accused, when arrested immediately after the occurrence.31 CRR No. 46/2008
The accused had given explanation for having in his possession Rs. 6,000/-, being the Government money, given to him by Executive Engineer, J.L. Koul. This fact stood affirmed from the certificate, issued by J.L. Koul, and proved in his evidence, examined in his defence. This circumstance, therefore, totally negatived the prosecution case with regard to the criminal conspiracy between Janak Raj accused and Bishan Dass in the sale of the cement, instead of taking it to the place of its destination, and further misappropriation of the money by Janak Raj, accused. At the most, it could be said to be a negligence on the part of Janak Raj accused for haying not carried out the terms of entrustment in carrying the cement to the place of its destination and having handed over the cement to Bishan Dass to do the job, in violation of the terms of the entrustment, but could not provide a sufficient inference from such circumstance even with regard to the criminal conspiracy or with regard to misappropriation of money by any stretch of reasoning. An identical situation came up for consideration before the Apex Court in case entitled Kailash Kumar Sanwatia v. State of Bihar and Anr., 2003 Crl. L. J. 4313, in which it was held as under:
"In the instant case even if it was proved as contended by learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of prosecution that money which was given to the accused-Gautam Bose and the cash peon to obtain bank drafts was taken away by accused Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405, IPC or Section-409, IPC, unless misappropriation, or conversion to personal use or disposal of property is established."
In 1998 CriLJ 3771 [The State Of Maharashtra vs Mohan Radhkrishna Pednekar] relied by Ld. Counsel for petitioner/convict, while acquitting accused/convict a Head Cashier at Maharashtra State Co-operative Bank, Vile Parle (West) Branch Bombay for commission of offence under section 409 RPC in regard to shortage of amount of Rs. 29200/- Bombay High Court in paragraphs 6,7&8 of the judgment held as under:-
32 CRR No. 46/20086. The facts of this case are more or less admitted by all the persons concerned. There was a missing of cash of Rs. 29,200/- from the counter. Prima facie, the cashier is answerable for this loss. According to the respondent the cash was missing but he has not misappropriated it. On the facts and circumstances proved in this case the respondent has not committed any offence of misappropriating the amount. Merely because the respondent was not able to produce the property which was entrusted to him it cannot be said that the respondent is liable for criminal breach of trust as defined under section 408 I.P.C. Section 408 I.P.C. reads thus:
"408. Criminal breach of trust by clerk or servant--- Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
We are fully in agreement with the finding of the learned Magistrate.
7. In order to establish an offence under section 408 I.P.C. there must be a dishonest misappropriation of the property entrusted. So long as the amount has not been recovered from the person of the respondent or from his house and there is no evidence that he has taken the amount, though he was answerable for the amount as cashier, it cannot be held that he has dishonestly misappropriated that amount. In a bank transaction due to the rush of the customers who come for transactions in the counter, the amount might have been missed by paying excess amount to the customers. Every such incident of missing of the amount in the counter cannot be said to be an act of criminal breach of trust, unless there exists material to implicate the incumbent for criminal offence.
Criminal breach of trust has been defined under section 405 I.P.C., which reads thus:
"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 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, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
To constitute an offence of criminal breach of trust as rightly pointed out by the Court below there must be a dishonest misappropriation. Mere misappropriation will not amount to criminal breach of trust. It must be dishonest. Dishonest misappropriation is again defined under section 403 I.P.C., which reads as under:
"403. Dishonest misappropriation of property.--- Whoever dishonestly misappropriates or converts to his own use any moveable property, shall be punished with 33 CRR No. 46/2008 imprisonment of either description for a term which may extend to two years, or with fine, or with both."
'Dishonestly' has been further defined under section 24 of the Indian Penal Code, which reads as under:
"24. 'Dishonestly'.---Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
"Whoever does anything with the intention of causing wrongful gain or loss to any other is said to have committed that thing dishonestly. Therefore in order to constitute an offence under sections 403 and 408 I.P.C. there must be a wrongful gain to the person who commits the offence or there must be wrongful loss to another person. Thrust of the provision is to the gain or loss. In these circumstances it is important to note that so long as the money has not been recovered either from the person or from the house of the respondent it cannot be said that he had an intention of causing wrongful gain by taking the said amount. No witness has spoken that the amount was taken by the respondent. Therefore, as rightly observed by the Court below no offence of criminal breach of trust has been constituted in the facts and circumstances of the case and the Court below rightly acquitted the respondent. Sometimes the respondent may be liable for negligence but not liable for the offence, he was charged. In view of this we do not find any ground to interfere with the impugned judgment.
8. In the result the appeal filed by the State is liable to be dismissed. We do so.
In Criminal Appeal No.337 of 2003 [M/S.Rahmania Coffee Works vs Unknown] relied by Ld. Counsel for petitioner/convict, while acquitting appellant/convict for the charges of commission of offences under sections 120-B r/w 409/477 IPC for misappropriation of amount of ₹ 8687108/-, Madras High Court in paragraphs 15,19,23,26,27 of the judgment held as under:-
15. The next point to be decided is whether the complaint has been proved?
It is true that the FIR is not an encyclopaedia. The complaint/FIR is not a substantial piece of evidence and the same could be used only for corroboration and contradiction. It is pertinent to note that the Complainant Ramaswamiah who preferred the complaint on 18.05.1990 has retired from service on 20.03.1989 and the case was registered by the respondent only on 23.07.1990. In the said complaint, it was stated that an internal audit party of Coffee Board had taken up the audit of the accounts of M/s.Rahmania Coffee Works, Mettupalayam during the month of October, 1989 and it was found that the said company had misappropriated the Board's money to the tune of Rs.83 lakhs and the said misappropriation had taken place from 1980-81 onwards.
34 CRR No. 46/2008Further, it was stated that after receipt of the show cause notice the accused sought time till February, 1990 to refund the amount. Though time was granted, the said amount was not refunded and hence, they had preferred the complaint. At this juncture, it is pertinent to note the following points:
(i) The complainant Ramaswamiah, Vigilance Officer of the Coffee Board was not examined before the Court.
(ii) The basis on which the complaint was preferred is only the audit report. Admittedly, the said audit report was not filed before the Court.
(iii) The person who conducted the audit was not a qualified person, but he is only the staff of the Coffee Board, which is evident from the deposition of P.W.8/Vasudeva Rao Chavan.
19. The learned counsel for the appellant also mainly focused on the point that the ingredients of Section 409 has not been made out. The respondent needs to prove the entrustment of the amount alleged to be misappropriated. However, in the given case the entrustment has not been proved by the prosecution. To prove the same, the learned counsel also taken me through the evidence of P.W.17/Lalitha, who was working as Head Clerk in the Coffee Board, Bangalore. P.W.17 in her deposition has stated that she has not issued any letter of credit, but only signed the covering letter under which the letter of credit has been issued. The procedure followed by the Board to pay money to the Coffee growers is that the collection agent and pool agent would procure coffee beans from the Coffee growers and the cost of the same would be sent to the agents by way of letter of credit in the account of the pool agents and the collection agents. This appellant is not only the collection agent but also the pool agent. After collecting the coffee bean, the agents would cure the same, stock it and thereafter, transport it to the Coffee Board. The agents after deducting the expenses incurred by them for curing, stocking and transporting would mention the balance amount under Form 15 and 15A. So, there is no cash transaction between the Coffee Board, the Pool agents and Collection agents, but the transaction takes place only through the letter of credit.
23. Thus, the evidence of P.W.5/Unnikrishnan and P.W.6/Govindaraj, the Bank officials would clearly reveal that the amount was not paid in cash by the Coffee Board to the Collection agent and Pool agent, but it was only sent by way of letter of credit. So, it is duty of the prosecution to prove that a sum of Rs.83,87,108/- has been paid to the accused.
26. Further, on perusal of the evidences of P.W.5 Unnikrishnan, P.W.6 Govindaraj, P.W.9 Chennakrishnan, P.W.14 Subba Rao, P.W.17 Lalitha, P.W.18 Lakshminarayanan, P.W.19 Ramamoorthy and P.W.20 Shantaraj has not proved the entrustment of amount. Even though Exs.P.31 to 33 were marked to prove the transfer of money through letter of credit, the said exhibits were only the covering letters. Admittedly, the letter of credits and the LC Registers were not filed before the court to prove the entrustment. The bank officials who were examined as P.W.5 Unnikrishnan, P.W.6 Govindaraj and P.W.19 35 CRR No. 46/2008 Ramamoorthy has also not spoken about the letter of credit. So, I am of the view that the prosecution has not proved the entrustment of Rs.83,87,108/- .
27. The learned counsel for the appellant has raised the point that once the entrustment of money has not been proved, then the offence under Section 409 IPC fails. To substantiate the same, he relied upon the decision reported in AIR 1983 Supreme Court 631, Roshan Lal Raina v. State of Jammu & Kashmir, wherein it was held that without proof of entrustment, there can be no question of the accused being found guilty of the offence under Section 409 of the Code. At this juncture, it would be appropriate to incorporate Section 409 IPC.
409. Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Ratios of the judgments of "Janak Raj", "Mohan Radhkrishna Pednekar" & "M/S.Rahmania Coffee Works" cases (Supra) relied by Ld. Counsel for petitioner/convict make the legal proposition manifestly clear, that to prove the offence of criminal breach of trust u/s 409 IPC, the prosecution has to prove, 1stly entrustment of the property to the accused, & 2ndly dishonest misappropriation of the said property by the accused or converting it to his own use, and so long as the amount misappropriated/embezzled has not been recovered from the person of accused or from his house and there is no evidence that accused had taken the amount though he was answerable for the amount as cashier, it cannot be held that accused has dishonestly misappropriated that amount, as in Bank transactions due to rush of customers who come for transaction in the counter the amount might have been missed by paying excess amount to the customer, every such incident of missing the amount in the counter cannot be said to an act of criminal breach of trust. Ratios of the judgments (Supra) squarely apply to the facts of the case in hand. PW-1 Adarsh Gupta (Manager J&K Bank Brach Katra) in his deposition before the trial court has categorically led evidence, that in June 1991 Bank received a letter from Shrine Board wherein it was complained that 36 CRR No. 46/2008 amount of Rs. 12658/- deposited by them on 15.11.1989 had not been credited to their account No. 1804 with the said bank. It is the further evidence of PW-1 that accused/convict expressed that he had excess cash of Rs. 6660/- which was deposited by the accused in sundry account of the bank. PW-2 Chhaju Ram (peon of the bank) has stated that he has no personal knowledge about misappropriation of the money by the accused. PW-3 Manhoar Lal Sharma (Chief Accounts Officer Mata Vashno Devi Ji Shrine Board Katra) in his deposition before the trial court has putforth evidence, that in May/June 1991 audit of accounts of Shrine Board for the year 1989-90 was being conducted and during the said audit/reconciliation some amount deposited in account No. 1804 with J&K Bank Katra could not be traced, therefore, he wrote first letter to J&K Bank on 27.06.1991. PW-5 Joginder Kumar Anand (Chashier Shrine Board Katra) has deposed that police seized 5 receipts from him vide seizure memo EXPW- 3/F. Pw-6 Nater Parkash Anand (District Manager J&K Bank Udhampur) in his testimony before the trial court has deposed that confessional note/statement EXPW1/A was written by accused himself and total amount of Rs. 79241/- was misappropriated by the accused. It is surprising that the basis on which FIR was registered against petitioner/convict is only the audit /reconciliation report which has not been filed before the trial court, and moreso, the person who prepared the audit/reconciliation report for the year 1989-90 has not been cited as prosecution witness in the charge sheet. On critical appraisal of the evidence tendered by PWs-1,2, 3, 5 & 6 namely, Adarsh Gupta, Chhaju Ram, Manhoar Lal Sharma, Joginder Kumar Anand & Nater Parkash Anand, by no stretch of imagination it can be held that the alleged misappropriated amount has been recovered from petitioner/convict, and there is no cogent evidence muchless any evidence adduced by the prosecution that petitioner/convict has taken the amount and converted it to his own use. It is apt to reiterate here, that though petitioner/convict at the relevant time of audit and 37 CRR No. 46/2008 registration of FIR was cashier in J&K Bank Branch Katra, it cannot be held, that he has dishonestly misappropriated the said amount reflected in the memorandum of charges framed against him. It is apposite to mention here, that due to nature of the work petitioner/convict use to perform, in a bank transaction due to rush of customers who come for transactions in the counter the amount as allegedly misappropriated might have been missed by paying excess amount to the customer. Therefore, every such incident of missing of amount in the counter cannot be said to be an act of criminal breach of trust as there exists no material/cogent evidence to substantiate the fact that the amount has been dishonestly misappropriated by petitioner/convict.
13. I, on the basis of the aforesaid evidence, hold that there is no legal evidence on record to prove that appellant/convict is the mastermind of misappropriation of alleged amount of money attributed to him. The direct evidence/the circumstances as relied upon by the prosecution are not strong enough indicating the involvement of petitioner/convict in the commission of crime and all the circumstances are not compatible with the possibility of guilt of the accused. The witnesses examined by the prosecution, have not been able to putforth in their evidence a ring of truth, so as to inspire confidence in this court. Evidence of prosecution witnesses, is therefore, qualitatively and quantitatively, insufficient to bring nexus between petitioner/convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. It would be highly dangerous and hazardous to hold the petitioner/convict guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The 38 CRR No. 46/2008 whole case of the prosecution, therefore, becomes doubtful. For the foregoing reasons and discussion, I am of the considered view, that prosecution has miserably failed to prove the guilt of the petitioner/convict beyond reasonable doubt for commission of offence u/s 409 RPC. The criminal revision, therefore, deserves to be allowed and the same is allowed. Resultantly, the impugned judgment and order of conviction dated 27.08.2020 rendered by the trial court of Ld. Sub-Judge (Judicial Magistrate 1st Class) Katra and the judgment/order dated 20.09.2008 rendered by the court of Ld. Sessions Judge Reasi whereby petitioner/convict has been convicted for commission of offence punishable u/s 409 RPC based on surmises, assumptions and presumptions is unsustainable in the eyes of law, and the same is set aside/quashed. Petitioner/convict namely, Bishan Dass S/O Janki Parshad R/O H. No. 40 Dogra Hall Jammu, is therefore, cleanly acquitted of the charges leveled against him. He shall stand discharged from his bail and personal bonds. Seized case property if any shall be released in favour of concerned department/bank. Criminal revision is disposed of. Record of the appellate/trial courts be sent back forthwith alongwith copies of the judgment for information of the courts below.
14. Disposed off accordingly alongwith connected CMPs if any.
(MOHAN LAL) JUDGE JAMMU 19.07.2023 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes/No