Punjab-Haryana High Court
Ratinder Singh Sayianwala Alias Neelu vs State Of Punjab on 22 May, 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. M. No.M-8390 of 2011
Date of Decision:22.5.2012
Ratinder Singh Sayianwala alias Neelu .... Petitioner
Versus
State of Punjab .... Respondent
CORAM: Hon'ble Ms. Justice Nirmaljit Kaur
Present: Mr. R.S. Rai, Sr. Advocate with
Mr. P.S. Ahluwalia, Advocate and
Mr. Rohit Sood, Advocate for the petitioner.
Mr. K.D. Sachdeva, Addl. A.G. Punjab.
****
1.Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2.To be referred to the Reporters or not?
3.Whether the judgment should be reported in the
Digest?
NIRMALJIT KAUR, J.
The present petition has been filed under Section 482 Cr.P.C. for quashing of FIR No.8 dated 21.1.2003 registered under Sections 406, 409, 120-B, 420 IPC at Police Station Ferozepur Cantt and all subsequent proceeding arising therefrom.
While praying for quashing of the FIR, it was contended that there was no allegation against the petitioner with respect to the embezzlement of any fund in his capacity as the President of the Guru Nanak College, Ferozepur. As such no offence is made out against him.
Secondly, the provident funds are maintained by the Principal under the guidance of the Registrar. An inquiry was conducted against the said Principal. As per the said inquiry, it was concluded that the allegations against the said Principal were baseless and without any truth and it was held that the allegations Crl. M. No.M-8390 of 2011 -2- against him are not proved. However, it is the Principal, who is responsible for deposit of the Provident Fund. He has been duly exonerated. No challan has been filed against him. As such, the petitioner in his capacity as the President of the said College cannot be found guilty of the offence under Section 409 IPC.
Fourthly, the amount was already stood deposited in the Provident Fund even prior to the registration of the FIR. Hence, no offence under Section 409 IPC is made out. It was further contended that offence if at all falls under the Employees Provident Funds Act and no proceedings under the IPC can be initiated.
Fifth, the petitioner is neither entrusted with the alleged amount nor responsible for the same. As such, Section 409 IPC cannot be launched against the petitioner.
Lastly, it is the duty of the Registrar of the University and the Principal to control over the Provident Fund in view of Chapter XII (Rule 3) of Punjab University Calendar-Vol. III, 2005 Reply has been filed by the State. It is not denied in the said reply that the Principal has been exonerated in the inquiry conducted through Incharge Anti Fraud Staff, Ferozepur. However, it is stated that during the inquiry conducted by Sub Divisional Magistrate, Ferozepur, petitioner himself admitted that a sum of ` 1953180/- is yet to be deposited by him in the Provident Fund Account of the employees and had deposited the embezzled amount vide Annexure P-2 to Annexure P-12 and as such he cannot claim that he has nothing to do with the Provident Fund being President of Guru Nank College.
Crl. M. No.M-8390 of 2011 -3-
Heard.
Case FIR No.8 dated 21.1.2003 under Sections 406, 409, 120-B, 420 IPC was registered at Police Station Cantt. Ferozepur on the basis of a complaint dated 18.10.2002 moved by the Teachers Union, Guru Nanak College, PCCTB Ferozepur to the Deputy Commissioner, Ferozepur with the allegations of misappropriation/embezzlement of Provident Funds of the employees/teachers by the College authorities. After the registration of case, Sh. J.P. Upadhaya the then Principal of Guru Nanak College, Ferozepur submitted an application No.2284/SPL/PC dated 22.12.2003 to Senior Superintendent of Police, Ferozepur regarding his innocence in said case which was got enquired into through Incharge Anti Fraud Staff, Ferozepur, who after conducting inquiry found Sh. J.P. Upadhaya the then Principal of Guru Nanak College, Ferozpur, to be innocent in said case.
The relevant findings of the inquiry report is as under:
"At the time of enquiry of the application and at the time of investigation of case FIR No.8 dated 21.1.03 under Section 406/409/420/120-B IPC Police Station Cantt Ferozepur, Statements of Shri J.P. Upadhiai, Ex Principal Guru Nanak College Ferozepur and Shri Joginder Singh Superintendent Guru Nanak College Ferozepur. From the investigation till today and enquiry in the application and statements and record and the evidence on the file, it has been found that as per Government instructions, the amount which was Crl. M. No.M-8390 of 2011 -4- deposited with Commissioner P.F. Bathinda by employees of Guru Nanak College Ferozepur and the interest due thereon to the tune of ` 9,12,306/- was sent to M/s Guru Nanak College Ferozepur Cantt vide cheque No.614523 dated 21.11.2001 through letter No.BTI/4032. This amount was deposited in Account No.232, Oriental Bank of Commerce, M.L.M. School Ferozepur, in the name of Principal Guru Nanak College Ferozzepur, whereas Shri J.P. Upadhiai Principal Guru Nanak College Ferozepur Cantt, after withdrawing the amount of this cheque vide different cheques, spend the same on the miscellaneous expenses of the college, like salary of the employees, telephone bill, celebration of student Activity. As per the statement of Shri Joginder Singh Superintendent, it has been proved that Shri J.P. Upadhiai has not misused this amount. Being Principal, this amount has been properly spent, due to which Shri J.P. Upadhiai is not at fault at all. The allegations levelled in the case by the Staff members against Shri J.P. Jupadhiai are baseless, in which there is no truth, nor has any written proof been produced on the file. Therefore, the allegations levelled in the case against Shri J.P. Upadhiai are not proved. As such, from my investigation and enquiry of Crl. M. No.M-8390 of 2011 -5- the application, I declare Shri J.P. Upadhiai Ex Principal as innocent in case FIR No.8 dated 21.1.03 u/s 406/409/420/120-B IPC Police Station Cantt Ferozepur. The enquiry report on the application is submitted for appropriate orders."
From the perusal of the above report, it is evident that (a) amount was deposited in the account of the Principal (b) the amount was withdrawn by the Principal (c) the same was spent on the expenses of the college like salary of the employees etc. (d) the amount was properly spent and the same was not misused (e) There was no dishonest intention (f)Principal was exonerated.
Instead, challan was filed against the present petitioner who is no doubt the President of the School but to whom neither the amount was entrusted nor he utilized the same.
Hon'ble the Supreme Court in the case of R. Venkatkrishnan v. Central Bureau of Investigation (2009) 11 SCC 737 held in para 146 as under:
"146. However, Sections 407 to 409 make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. Criminal breach of trust by a public servant is dealt with under Section 409:
"409. Criminal breach of trust by public servant, or by banker, merchant or agent.-Whoever, being in any manner entrusted with property or with any dominion over property in his capacity Crl. M. No.M-8390 of 2011 -6- 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."
This section classes together public servants, bankers, merchants, factors, brokers, attorneys and agents. The duties of such persons are of a highly confidential character, involving great powers of control, over the property entrusted to them and a breach of trust by such persons may often induce serious public and private calamity. High morality is expected of these persons. They are to discharge their duties honestly. The following are the essential ingredients of the offence under this section:
(1) The accused must be a public servant; (2) He must have been entrusted, in such capacity with the property;
(3) He must have committed breach of trust in respect of such property."
In the present case, it is evident from the enquiry that amount was deposited in the account of the Principal who neither misappropriated nor embezzled the amount but was exonerated as it was stated that he spent the same on salary etc. of teachers. There Crl. M. No.M-8390 of 2011 -7- was no entrustment of the amount to the petitioner. Thus, once the amount is not entrusted to the President, the allegation of breach of trust cannot be levelled against him.
Moreover, it is admitted in the reply filed by the State that "on verification from the Punjab and Sind Bank, vide letter dated 20.7.2011 it revealed that all said amounts have been deposited by the petitioner after the complaint moved by the Teachers Union Guru Nanak College dated 18.10.2002 (deposits Annexure P-2 to P-7)."
Thus, it is an admitted position that the entire amount stood deposited in the Provident Fund before the registration of the FIR. Still, charges have been framed under Section 409 IPC against him. The said charge cannot be sustained against the petitioner as it is a matter of fact which is not disputed by the respondent-State that the primary duty of depositing of Provident fund and issuing utilization certificate is of the Principal of the College. In the present case, the funds were deposited in the account of the Principal and the same were utilized by the Principal who was exonerated of the charge by holding that there was no misappropriation.
An effort has been made to enrope the petitioner by making him vicariously liable. However, no charge has been framed under Section 34 IPC and rightly so as no challan has been filed against the main person i.e. Principal, who was entrusted with the amount. Once no challan has been filed against the Principal on whose account the amount was deposited and to whom the same was entrusted, no vicarious liability can be fastened upon the present petitioner just because he was the President of the College. Crl. M. No.M-8390 of 2011 -8-
Hon'ble the Apex Court in the case of Asoke Basak v. State of Maharashtra and others 2010 (4) Crimes (SC) 318 while discussing the vicarious liability in a situation where the amount was deposited with the company and no allegation was made by the complainant with respect to the entrustment of the property to the appellant, it was held that no offence under Section 405 and 409 IPC is made out. Paras 21, 22 and 25 of the said judgment read as under:
"21. Admittedly, in the present case, the said amount was deposited by the complainant company with MSEB and there is nothing in the complaint which may even remotely suggest that the complainant had entrusted and property to the appellant or that the appellant had dominion over the said money of the complainant, which was dishonestly converted by him to his own use, so as to satisfy the ingredients of Section 405 of the IPC. In the absence of any such specific averment demonstrating the role of the accused in the commission of the offence, we find it difficult to hold that the complaint, even ex-facie, discloses the commission of an offence by the appellant under Section 409 IPC, punishable under Section 406 IPC.
22. We shall now examine whether the appellant is vicariously liable for the aforementioned offence with the aid of Section 34 of the IPC. The essence of Crl. M. No.M-8390 of 2011 -9- liability under Section 34 IPC is the existence of a common intention. A common intention implies pre- arranged plan and acting in concert pursuant to the pre-arranged plan. In Ramaswami Ayyangar and Ors. v. State of Tamil Nadu, (1976) 3 SCC 779, this Court had observed that the essence of Section 34 IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. It is true that to attract Section 34, no overt act is needed on the part of the accused if he shares the common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. Nonetheless, Section 34 IPC clearly envisages pre-concert or pre-planning, which may even develop at the spur of the moment but such plan must precede the act constituting the offence. It is equally true that it may not be possible in every case to have direct evidence of a common intention and it may have to be inferred from the facts and circumstances of each case.
25. In light of the above-noted conclusions, we are of the opinion that no prima facie case has been made out against the appellant in respect of offence under Section 409 read with Section 405, even with the aid of Section 34 of the IPC. Therefore, it was a fit case Crl. M. No.M-8390 of 2011 -10- where the High Court should have exercised its powers under Section 482 of the Code by quashing the complaint against the appellant."
In the present case, there is no allegation that any amount was entrusted to the petitioner or that the amount of Provident Fund was dishonestly misappropriated or converted to his own use or dishonestly used. Therefore, allegations do not satisfy the ingredients of Section 409 IPC. As such, no offence of criminal breach of trust can be fastened upon the petitioner.
In view of the above, the present petition is allowed and FIR No.8 dated 21.1.2003 registered under Sections 406, 409, 120- B, 420 IPC at Police Station Ferozepur Cantt and all subsequent proceeding arising therefrom are hereby quashed.
22.5.2012 ( NIRMALJIT KAUR ) rajeev JUDGE