Delhi District Court
Suresh Chand vs The Govt. Of Nct Of Delhi on 4 August, 2014
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Criminal Appeal No. 16/09
SURESH CHAND
s/o Sh. Bhagirath Sharma
r/o B17/133, Pitampura,
Police Line, Delhi ..................Appellant
Versus
The Govt. of NCT of Delhi .............Respondent
JUDGEMENT
1. The appellant has filed this appeal u/s 374 (3) of Cr.P.C. against the impugned judgement dt. 07072008 passed by the court of Sh. Alok Aggarwal, Ld. ACMM, Delhi and order on sentence dated 28042009 passed by the court of Sh. Ashutosh Kumar, Ld. ACMMI (NW), Rohini, in FIR no. 163/92, PS Mukherji Nagar thereby appellant was convicted u/s 406 IPC and sentenced to undergo simple imprisonment for a period of six months along with fine of Rs. 10,000/, in default of payment of fine, to further undergo SI for a period of one month.
2. TCR has been summoned. I have heard Ld. counsel for the appellant and Ld. APP for the State/ respondent and have perused the Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 1 of 10 written submissions filed on behalf of appellant and the entire record.
3. The petitioner/ appellant has taken the grounds among others that the Ld. trial court miserably failed to take note of the contradictions and inconsistencies in the testimony of PWs which go to the root of the case. The prosecution failed to produce any documentary evidence in the case during trial and Ld. trial court passed its decision merely on ocular evidence which is wholly unreliable. The ingredients of section 406 IPC are not attracted at all as there is no evidence that at any specific point of time, place or date the said amount was allegedly entrusted to the appellant by the complainant or other witnesses. The prosecution has miserably failed to prove the entrustment as such the question of misappropriation by the appellant does not arise. The prosecution has to stand on its own legs and the prosecution cannot take the benefit of the wrongs/ lacunae of the appellant. It is manifestly wrong to base its decision on the ground that appellant did not lead any defence evidence and also failed to put any defence during the crossexamination of PWs. Link evidence is missing in the testimony of PWs. Several witnesses did not say that they themselves made any payment to the appellant and reliance on hearsay evidence is totally against the provisions of criminal jurisprudence. The Ld. trial court gave undue weightage to the fact that appellant has in no way substantiated his claim that due to previous enmity the witnesses Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 2 of 10 have deposed against him. The orders passed by Ld. Trial Court are very harsh as the appellant has not been extended the benefit of probation. The Ld. Trial Court wrongly appreciated the testimony of PW12 Hans Raj Giri which is no evidence in the eyes of law as he never appeared in the witness box for his crossexamination. The prosecution has not produced any evidence which go to show that appellant was running the alleged committee despite the search of house and did not produce any independent evidence/ public witness from the neighbourhood of appellant. The Ld. Trial Court convicted the appellant merely on evidence of interested witnesses and the view taken by the Ld. Trial Court has led to miscarriage of justice.
4. The Ld. counsel for appellant argued that the appellant is already suffering from 70 per cent disability since his left leg has been amputated. The evidence of the PWs is not trustworthy and cannot be relied upon since the entire story which is manipulated and after thought in collusion with Raj Kumar Pathak, senior police officers. The testimony of PWs are not only contradictory but inconsistent with each other. The complainant/ respondent never produced any document nor any evidence to show that the appellant received money from him. Therefore, the appellant has never committed the offence of criminal breach of trust and there was no mens rea to dishonestly misappropriate any money of the complainant. The Ld. Trial Court failed to consider Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 3 of 10 and appreciate that there is no direct evidence and hearsay evidence cannot be considered and treated to prove the case of complainant. The appellant has been public servant and he is facing trial for the last more than 20 years. The Ld. counsel for the appellant, in support of his arguments, relied upon the judgements reported in the cases of Roshan Lal Raina Vs. State of J&K, AIR 1983 SC 631; Daramvir and ors. Vs. State of Punjab, 1986 (2) Recent CR 559, High Court of P & H; Sat Narain and others Vs. State of Punjab and others, 1974 CRI.L.J. 232 (V 80 C89); Chundura Siva Ram Krishna & Anr. Vs. Peddi Ravindra Babu & Anr. 2009 (4) Crl. Court Cases 565 (SC); Janeshwar Das Aggarwal Vs. State of UP, AIR 1981 Supreme Court 1646 and State of Gujarat Vs. Jaswantlal Nethalal, AIR 1968 Supreme Court 700.
5. The Ld. APP for respondent/ State argued that the appellant was running a committee in which the complainant and the others used to pay instalments of their membership. The appellant did not return their amount which amounts to criminal breach of trust. The Prosecution has proved the case of criminal breach of trust by examining the witnesses against the appellant.
6. The prosecution examined 14 witnesses. Out of 14 witnesses, most of the witnesses are police officials. PW1 stated in her examination in chief that receipt Mark A was not written by her nor she had signed the same. PW2 Vijay stated in his examination in chief that Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 4 of 10 accused was running a chit fund business and PW2 was one of the members. In the committee, there were about 20 persons. PW2 deposited Rs. 500/ per month as the instalment of the committee. During crossexamination by the Ld. defence counsel, PW2 stated that no receipt was issued to him by the accused regarding the payment made by him. PW2 also stated that he had never visited at the residence of accused at the time of auction of the committee. PW3 Kaptan Singh stated in his crossexamination that he had no proof in respect of the committee with the accused. Even, PW3 had not maintained any record in respect of the amount paid to the accused on every month in respect of the committee. PW3 also stated in his cross examination that no profit was given to him of the amount of boli/ auction and even he had never been given any profit in the committee boli at any month. PW3 was also not going on all the auctions/ boli of the committee. PW3 further stated in his crossexamination that accused had returned him payment by two cheques of Rs. 900/ and Rs. 1600/ but he did not know as to by whom and when those two cheques were filled. PW3 admitted that accused Suresh Chand had not put any writing on those cheques in his presence. PW3 stated that there was no complaint after the cheques issued to him and others as of the repayment of the committee amount. PW5 Raj Kumar stated in his crossexamination that no written agreement was entered with the Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 5 of 10 accused when he became member of the committee. Accused never issued receipt of the instalment paid by him. PW5 used to pay instalment in cash. There was no such register on which he used to sign when he deposited the payment. PW5 further stated in his cross examination that he never received any payment or interest from the accused till date and even he had never attended the meeting of the organizers.
7. PW7 Ct. Raj Kumar also stated in his crossexamination that no receipt regarding the membership of the committee issued by the accused. No receipt of the instalment which he used to pay was given by the accused but orally told by the accused. PW8 HC Sushil Kumar, in his crossexamination, could not tell the names of other members of the committee except Ct. Raj Kumar who was also posted at PHQ concerned branch. IO had made personal inquiry and examined PW8 at PHQ. PW10 Ajit Singh stated in his crossexamination that he deposited the instalment amount in cash and not through cheque or draft. PW11 HC Rajbir Singh stated in his crossexamination that when he became member of the committee, the accused had issued him membership slip i.e. printed part was given. However, PW11 volunteered that these parts were taken by the inquiry officer of the Department during the inquiry conducted against the accused. PW11 further stated in his crossexamination that he did not keep any Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 6 of 10 photocopy of membershipcuminstalment part which was given by him to the inspector (inquiry) in original. PW11 did not recollect the said st inspector but his designation was RI 1 Battalion. PW11 admitted that he did not tell this fact of giving the membershipcuminstalment card to the inspector who conducted the inquiry in his statement recorded by the IO. PW11 stated in his crossexamination that he was having no document proof that he had been the member of the committee and paid any instalment. PW11 also stated in his crossexamination that he did not remember the exact time when he received payment of his first committee of Rs. 5,000/ but he became the member of the second committee only after the receipt of the payment of his first committee. PW11 admitted that he did not make any complaint to senior officer of the Department against the accused. PW13 Jai Bhagwan also stated in his crossexamination that he did not obtain any receipt against the payment made to the accused. PW13 admitted that whenever he used to go to pay the amount, he generally gave the amount to Rajbir and Kaptan. PW13 also admitted that he never met with any member of the committee and even he did not tell the name of any other member of the committee. PW13 stated that he came to know from Rajbir and Kaptan that accused fled away after receiving the amount. PW14 Balwan Singh recorded statements of the witnesses. PW14 in his crossexamination stated that Ex. PW6/D is a photostat copy which was produced before Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 7 of 10 him by the complainant, at that time, the complainant told him that he will produce the original in the court. PW14 saw the case file but the original of Ex. PW6/D was not on record. PW14 also stated that Suresh Chand accused was not written in his presence so he could not identify his handwriting. PW14 further stated in his crossexamination that there were many persons while recording the disclosure statement of the accused and HC Jagdish was made the witness. PW14 admitted that the complainant was also present there but he did not obtain his signature on Ex. PW6/C. PW14 admitted in his crossexamination that the complainant and the PWs had refused about having any record with them in respect of the committee. In his statement u/s 313 Cr.P.C, the accused stated that all the PWs deposed against him due to previous enmity.
8. In Roshan Lal Raina Vs. State of J & K, AIR 1983 SC 631, it was held by the Hon'ble Supreme Court that without proof of entrustment, there can be no question of the accused being found guilty of the offence u/s 409 IPC. The accused was a tourist clerk in a dak bunglow and it was alleged that a sum of Rs. 70.80 was collected by him from the tourists staying there and was misappropriated by him. It was not proved that the money was ever entrusted to him by the chowkidar who used to collect the money. In Sat Narain & Ors. Vs. State of Punjab & Ors. 1974 CRI.L.J. 232 (V 80 C 89), it was held that Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 8 of 10 it cannot be denied that the money which was deposited with the company was to be utilised by the company as its own money by giving it to other members as a loan on higher interest. The depositors could get the equivalent amount back after the end of 50 months along with interest at 6 per cent. The money was not to be returned in specie and could not be termed as entrusted to the company. In such a situation, only a civil liability is created and even if the allegations are accepted, no case of criminal breach of trust within the meaning of section 405 IPC was made out. In Chundura Siva Ram Krishna & Anr. Vs. Peddi Ravindra Babu & Anr. 2009 (4) Crl. Court Cases 565 (SC), it was held by the Hon'ble Supreme Court that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act to fraudulent misappropriation. It was further held that an act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.
9. I have carefully gone through the documents and materials placed on record and also perused the impugned judgment dated 07072008 and order on sentence dated 28042009. Considering the facts & circumstances of the case, the impugned judgement and order on sentence and the aforesaid judgements relied upon by the Ld. Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 9 of 10 counsel for the appellant, I am of the considered opinion that no witness on behalf of the prosecution has been able to prove any document or receipt regarding the membership of the committee or the payment made to the appellant. No evidence proved on record about the specific time, place or date of the amount paid to the appellant. Even, some of the witnesses stated that they did not make the payment to the appellant. IO of the case has categorically admitted that neither the complainant nor the PWs showed him any record maintained by him in respect of the payment of the committee at different intervals. PW14 also admitted that no record in respect of the alleged committees was found from the possession of the accused during investigation of the case. Therefore, it has not been proved on record the evidence of mens rea for criminal breach of trust by the appellant. Accordingly, this appeal is allowed and impugned judgment dated 07072008 and order on sentence dated 28042009 are set aside. Appellant is acquitted. His bail bonds are cancelled; surety is discharged. TCR along with copy of this order be sent back to Ld. Trial Court and thereafter appeal file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 04082014 Crl. A. No. 16/09; Suresh Chand Vs. The Govt of NCT of Delhi Page 10 of 10