Delhi District Court
State vs . : Rajender Prasad on 10 August, 2007
1
IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Rajender Prasad
FIR NO : 108/95
U/s : 408 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. number of the case 85/95
2. Offence complained of
or proved U/s 408 IPC
3. Date of Offence 26.03.95
4. Name of the complainant Subhash Bansal
5. Name of the accused Rajender Prasad
R/o : H number 156, Phase_I
Ashok Vihar, Delhi.
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 10.08.07
Brief reasons for decision:
1. The story of the prosecution in brief is as under: accused was working as servant with Subhash Bansal, the complainant, who was dealing with building materials. The accused without authority of his master Subhash Bansal, sold certain cement bags to another person without any authority which was found later on, when enquiry was conducted by the 2 complainant. Hence, FIR u/s 408 IPC was registered against the accused.
2. IO conducted detailed investigation and filed his final report u/sec. 173 Cr.P.C. After completing the initial requirements copies of documents were supplied to the accused u/sec. 207 Cr.P.C. and arguments on charge was heard. Prima facie material was available against the accused. Hence, charge u/s 408 IPC was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. It is important to mention here that in order to establish the liability of the accused, prosecution examined five witnesses and there is no evidence from the side of the accused in his defence.
4. PW1 SI Suresh Kumar is the duty officer who received one rukka and registered the FIR No. 108/95 of this case which is Ex. PW1/A.
5. PW2 Shyam Sunder has stated that he is running a shop in the name of Bansal Departmental Store at 245, Keval Park, Azadpur and dealing in Cement and Marbels. In March 1995, he purchased 50 bags of cement from Janta Traders and at that time, accused Rajender Prasad was at the shop. Rs. 6750/- was paid to the accused Rajender Prasad. The accused handed over the cash memo to him for Rs. 6750/- The cash memo was prepared b y the accused Rajender who signed the 3 cash memo in the presence of PW2. When Shyam Sunder PW2 was about to leave with the bags, the owner of the shop Subhash Bansal came there and he asked for the cash memo and checked the same. The owner of the shop said that he will give cash memo later on as he has some suspicion over it. On next day, police came to PW2 and inquired him. The whole incident was narrated to the police. Cash memo was identified by PW2. This witness was not cross examined by the accused.
6. PW3 Devender Kumar has stated to the effect that in the year 1995, he purchased 20 bags of cement from the shop of Janta Traders whose owner was Mr. Subhash Bansal. Money was paid in respect of purchase of 20 bags of cement to the owner of the shop. After some time the police came to him with Mr. Bansal and inquired in regard to the purchase of cement bags. The cash memo was handed over to the police. It is stated by PW3 that the cash memo was prepared by the accused Rajender Prasad in his presence and he also signed on the cash memo in his preence.
7. PW4 Subhash Bansal has stated to the effect that he is having a cement shop at A-110, Majlis Park in the name of Janta Traders. It was in the year 1994 when he employed accused Rajender Prasad as his store keeper in the said gowdown at A-110, Majlis Park. In the month of March 1995, accused started mis-appropriating the cement bags while selling 4 the same to different customers. He was in a habit of filling only one copy of cash memo without carbon and the next copy was used to sell the cement bags without carbon thereof to other customers. As per the procedure, the cash memo has to be prepared in Triplicate by filling one original and keeping two carbon copies under it, but the accused instead of preparing the copies in triplicate, used to fill only one copy and using the other copies to achieve his ill motives. ON 25.3.95, accused had mentioned in cash memo NO. 37728 in respect of 50 bags to Bansal Departmental Store and 20 cement bags in same cash memo no. 37728 to B-469, Gali No. 2 and mis-appropriated 70 cement bags. On checking the articles, PW4 found certain cement bags missing. The accused was inquired by him but he failed to give any satisfactory reply. On checking the stocks, it was found that 68 cement bags were less and it was also inquired by PW4 from various rickshaw walas and he came to know about supply of cement bags by the accused. PW4 therefore on 26.3.95 went to PS Adarsh Nagar and on the basis of his statement police recorded FIR Ex. PW1/A. During investigation, the accused was apprehended by the police. Police also went to Bansal Departmental Store and to Devender Kuamar at his house B-469, Majlis Park who were asked to show the cash memos in respect of cement bags which were taken into possession by the police which are Ex. P-1 and PX. 5 Police thereafter, arrested the accused. This witness was also not cross examined by the accused.
8. PW5 SI Jaipal Singh has stated to the effect that he was posted at PS Adarsh Nagar as ASI. Duly officer Subhash handed over case file to him for investigation and he along with const. Kashi Ram went to Janta Traders. Subhash, the complainant handed over two cash memos sr. no. 37728 which are Ex. P-1 and PX. They were seized. Site plan was prepared at the instance of the complainant which is Ex. PW5/A. PW Devender and Shyam sunder were also inquired. During inquiry they told that it was the accused who had given cash memos to them. Those cash memos are also stated to be in the handwriting of the accused. Statement of both the PWs was recorded u/s 161 Cr. P. C. Accused was interrogated and he was arrested. His personal search was conducted. Two other personal were also named by complainant namely Om Prakash and Raj Kumar however whereabout of these two persons were not known, hence they could not be arrested. This witness was also not cross examined by the accused.
9. After examination of abovesaid 5 PW's PE was closed. One opportunity was given to the accused u/s 313 Cr. P. C r/w Section 281 Cr. P. C wherein all the accusations and incriminating evidence has been explained to him. Accused 6 pleaded his innocence and stated that this case has been falsely imposed upon him. It is further stated by accused that he want to lead evidence in defence, however no evidence was brought by the accused and on dated 21.6.07 accused stated voluntarily that he has not able to bring any witness in his defence, thus DE was closed.
12. Final arguments heard at length. Record perused thoroughly. Section 408 IPC lays down the law relating to the criminal breach of trust by clerk or servant with is reproduced as under:
"Whoever, being a clerk or servant or employed a 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"
This section talks about the criminal breach of trust by clerk or servant.
Criminal breach of trust as defined u/s 405 IPC. Section 405 IPC:-
"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or 7 converts to his own used that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trusts 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".
Section 406 IPC prescribes the punishment for the criminal breach of trust simplicitor. The ingredients of the offence of criminal breach of trust are :
1 The accused must have been entrusted with the property or dominient over it.
2. The accused must have mis-appropriated or disposed of that property in violation of such trust.
Section 408 IPC which is attracted in the present case as stated by the prosecution providing the species of section 405 IPC. Thus a third ingredients is also relevant here which is;
3. Such criminal breach of trust is committed by a clerk or servant.
Thus the main requirement of these section is there must be entrustment of the property, there must be dishonest 8 mis-appropriation of conversion of that property. It is important to mention here that him-appropriation simplicitor without dishonest intention does not attract section 405 IPC. The entrustment means handing over the dominion over the property by someone. The word "entrusted" is not a term of law in its most general significance, all its merits is a handing over of the possession for some purpose which may not imply the conferring of any proprietory right at all.
13. In "Som Nath Puri Vs. State of Rajasthan" AIR 1972 SC 1490, it was held by Hon'ble Supreme Court of India that Section 405 IPC does not provide that the entrustment of property should be by someone or the amount received must be the property or the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership deal in same persons other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner.
14. A trust implies the confidence placed by one means in another and such confidence was freely and there is a true consent. There is no true consent, if confidence is obtained as a result of a trick.
15. Another important requirement of section 408 IPC is 9 that such act should be committed by clerk or servant. In the present case it is stated that accused was employed as servant of the complainant. A servant means the relation of master and servant whereby a person calls in assistance of other where his owned skill and labour are not sufficient to carry out his own business or purpose.
16. In the present case, after relying the evidence, so adduced by the prosecution, the prosecution has established the liability of the accused and in the present case no evidence in defence from the side of accused it is shown that:
a. Accused was the servant of the complainant Subhash Bansal. This fact was stated by the complainant Subhash Bansal in his evidence and is unrebutted. The accused has not stated anything in his statement u/s 313 Cr. P. C that he is not the servant of the complainant. Complainant has also not been cross examined by the accused in this regard. Thus, it is established and undisputed fact that accused was the employee/servant of the complainant.
b. That accused was having the charge of the store keeping and to take care of the cement bags and other materials lying in the store in the ownership of Subhash Bansal. This fact is also not disputed.
c. The prosecution has also shown that the accused was having dominion over the cement bags which were given to him 10 on the basis of faith and a free consent was there from the side of Subhash Bansal, the complainant to deal with them as per the directions. Thus there is an entrustment handed over the dominion of the property i.e., the cement bags. d. Accused prepared false cash memos by obtaining the copies of cash memo No.37728 and on the basis of those two copies of two receipt with same No. 37728, he prepared two cash memos of 50 bags and 20 bags. Such an act clearly reflects that accused was having a criminal intention in his mind to mis-appropriate the goods, so entrusted to him by Subhash Bansal without his consent. Thus the essential ingredients of the criminal liability i.e., "mens-rea" is existing in this present case.
e. The accused filled up the cash memos and approached to different persons to sale 50 bags and 20 bags of cement, signed those cash memos in presence of those two witnesses i.e., Devender Kumar and Shyam Sunder. He was having no authority nor any consent from his employer Subhash Bansal. Thus the second essential requirement of the criminal liability i.e.,"actus-reas" is also present in this case i.e., the conduct of the accused.
f. The prosecution has also shown and established this fact by way of documentary as well as oral that those cash memos were prepared and signed by the accused in presence 11 of two witnesses Devender and Shyam Sunder and 50 and 20 bags of cement were handed over to them. Thus, there is furtherance of the conduct of the i.e., the delivery of the goods without consent of the owner Subhash Bansal. g. The cash memo and the receipts bearing the signatures of the accused are on record. This fact is also not dispute nor the witnesses have put to cross examination on this point by the accused.
h. Public witness Devender and Shyam Sunder have stated categorically that it was the accused who approached them to sale the goods 50 and 20 bags of cement respectively purportedly the cash memos were issued by the owner Subhash Bansal.
It is further important to mention here that none of the witness has been cross examined by the accused. All the PW's have duly corroborated the story of the prosecution on all the aspects stated that it was the accused who was the employee/servant of the complainant and he approached Devender and Shyam Sunder to sale 50 and 20 cement bags and sold them against the same cash memos No. 37728.
17. Thus from the abovesaid reasons and findings, I am of the considered opinion that following things have been established by the prosecution that:
a. There is an entrustment and the handing over 12 dominion with the case property i.e., cement bags to the accused by Subhash Bansal.
b. Accused mis-appropriated the property and disposed of that property in violation of such particulars to Devender and Shyam Sunder.
c. The accused is the employee/servant of the complainant Subhash Bansal.
18. In the light of these facts and circumstances and the reason given above, I am of the considered opinion that prosecution has established the liability of the against beyond reasonable doubt, that accused being in the capacity of a clerk/servant of Subhash Bansal, committed the criminal breach of trust with regard to 70 cement bags by forging certain cash memos, by putting his signatures thereof. Thus, I am of the considered opinion that accused has committed an offence punishable u/s 408 IPC. Hence, he is convicted accordingly. Announced in open Court (PRASHANT KUMAR) Dated 10.08.07 Metropolitan Magistrate Delhi 13 FIR NO. 108/95 PS Adarsh Nagar State Vs. Rajender Prasad 10.8.07 Present: Ld APP for the State.
Accused on bail.
Final arguments heard at length. Final judgment is pronounced against the accused. In the facts and circumstances of the case, accused is convicted u/s 408 IPC.
Put up for arguments on the point of sentence on 25.08.07.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi