Bangalore District Court
Police Have Cited Cw1 To Cw4 As Charge ... vs No.1 & 3 Are Not Found Guilty on 28 September, 2016
IN THE COURT OF THE IV ADDL. CMM, BANGALORE
Dated this the 28th day of September 2016
Present : Smt. Roopa R. Kulkarni,
B.Com., LL.B. (Spl).
IV Addl. CMM, Bangalore.
JUDGMENT U/S. 355 CR.PC.,
1. Sl. No. of the case : CC No. 6916/2013
2. The date of commission
of the offence : May 2011 to July 2011
3. Name of the complainant : State by Yashwanthpura PS
4. Name of the accused : A1: Pramod Mishra, 32 Yrs.,
S/o B.N. Mishra
A3: P.S.Mishra, 52 Yrs.,
S/o R.B. Mishra
Both are residing at No.64,
M.S.Axis Fortification Pvt. Ltd.,
Parimala Towers, M.E.S. Road,
Yashwanthpura, Bengaluru.
A2: Shalini Mishra
(abated)
5. The offences complained : U/s.406, 409 r/w 34 of IPC
or proved
6. Plea of the accused
and his examination : Pleaded not guilty
7. Final order : Acquitted
2 CC.NO.6916/2013
8. Date of order : 28.09.2016
Sub Inspector of Police, Yashvanthprua police station has
filed the charge sheet against accused for the offences punishable
u/s.406, 408 r/w 34 of IPC.
2. The brief facts of the prosecution case are as under :
That the accused are running Axis Fortification Pvt. Ltd.
company in Parimala Towers and at about 1257 workers were
working in the said company and accused was deducting monthly
salary towards EFP amount and has to deposit the said amount t
EPF office and they have deduction from May 2011 to July 2011 an
amount of Rs.9,30,087/- but have not deposited the said amount
into EPF office and have misappropriated the said amount and
thereby the accused have committed the offences punishable
u/s.406, 409 r/w 34 of IPC.
3. On perusal of the records it appears that after filing of the
charge sheet the accused appeared before the court and they were
enlarged on bail. Copy of charge sheet was furnished to the
accused as provided u/s.207 of Cr.P.C. Thereafter charge was
framed, wherein they pleaded not guilty and claimed to be tried.
4. On perusal of the charge sheet it appears that the
complainant police have cited CW1 to CW4 as charge sheet
witnesses. The prosecution in order to prove its case got examined
the complainant as PW1 and got marked documents Ex.P.1 to
Ex.P.8 and closed its side of evidence.
3 CC.NO.6916/2013
5. 313 statement of the accused was recorded. Accused did not
choose to lead any defence evidence on their behalf.
6. Heard both the sides.
7. On perusal of the evidence adduced by the prosecution, the
complainant who is material witness has been examined as PW1
has stated in his evidence that he was working as Enforcement
Officer for the period from 2010 to 2012 in Regional Office, Peenya
and he knows the accused No.1 to 3 and accused are running Axis
Fortification Pvt. Ltd., company and in the said company about
1000 workers were working and on 4.11.2011 he has visited the
company of accused and has perused the records. Further he has
stated that on perusal of the records he found that the accused
though have deducted PF amount of their employees from May
2011 to June 2011 they have not deposited the said amount to
their company and so he has filed complaint against the accused as
per Ex.P.1 and he got marked his signature as per Ex.P.1(a).
Further he has stated that, on 4.11.2011 he has issued Inspection
report on accused and he has received acknowledgement for having
issued the report and he got marked the said inspection report as
per Ex.P.2. In his further examination-in-chief has got marked
salary statement, due statement, payment statement, residual
form, employment statement as per Ex.P.3 to Ex.P.7 respectively.
He has also got marked show cause notice issued to the accused as
per Ex.P.8. Further he has stated that accused though they have
deducted an amount of Rs.9,30,087/- from the salary of the
employees, they have not deposited the said amount to the
company and they have misused the said amount and have
committed criminal breach of trust.
4 CC.NO.6916/2013
8. In his cross-examination by the defence counsel has admitted
that he had not personally given the complaint before police
station. Further he has stated that on 22.11.2011 he had sent the
complaint through speed post. Further he has stated that, as he
had work pressure he could not give the complaint before the
police. Further has admitted that on 7.12.2011 the FIR was
registered against the complaint filed by him. Further he has
stated that prior to filing of the complaint he has issued show
cause notice to the complainant. Further he has admitted that, the
date mentioned in the show cause notice and FIR are one and the
same. Further he has admitted that the accused has deposited the
PF amount within 10 days from the date of issuance of show cause
notice. Further he has admitted that if the company has got some
financial problems then there will be delay in depositing the PF
amount. Further he has stated that, it may be true to suggest that
as the accused company had faced some financial difficulties there
was delay in depositing the PF amount. Further he has denied that
in order to harass the complainant he has filed a false complaint
against the accused.
9. Thuugh sufficient opportunity has been given to the
prosecution to lead the evidence of remaining witnesses, they failed
to examine the said witnesses. So, the prayer of Senior APP for the
issuance of the process to the said witnesses was rejected and they
were ordered to be dropped by this court.
10. On perusal of the evidence adduced by the prosecution it is
not in dispute that the accused have deposited the PF amount
deducted from the salary of the employees to the complainant PF
5 CC.NO.6916/2013
company. It is also clearly admitted by PW1 in his cross-
examination that within 10 days from the issuance of show cause
notice the accused have deposited the PF amount. Further PW1
has clearly admitted that it may be true to suggest tat there is no
intentional delay on part of the accused in depositing the PF
amount deducted from the salary of the employees.
11. The counsel for the accused has submitted documents to
show that the accused have deposited the amount to the
complainant company. The counsel for the accused has relied
upon the decision reported in 2004 (1) Crimes 463 (Dipak
Dhowdhury Vs. ESI Corporation and another) and contended that
the employers cannot be prosecuted in violation of Sec.40 of ESI
Act.
12. On perusal of the evidence adduced the prosecution, thought
he complainant has stated that there is delay in depositing the PF
amount, the prosecution has failed to prove that there was
intention on part of the accused to misappropriate the amount
which has been deducted by them from the salary of their
employees. Further the prosecution has also failed to prove that
the accused have misappropriated the amount which has been
deducted from the salary of their employees. So, the prosecution
has failed to prove the guilt levelled against the accused beyond all
reasonable doubt.
13. Essential ingredients to constitute criminal breach of trust
are (1) Accused was a clerk or servant (ii) Accused was entrusted
with certain property or he had dominion over certain property
6 CC.NO.6916/2013
which was not his own (iii) He committed criminal breach of trust
for the said property. Essential ingredient is dishonest
misappropriation. Dishonest intention must be proved. NO offence
when the property retained without any misappropriation.
Dishonest intention which is an essential element to constitute
mere retention is no offence. The essential ingredients of an
offence or criminal breach of trust falling u/s.406 are entrustment
and dishonest intention.
14. In the present case, it is not disputed that the accused has
deducted the amount towards Provident Fund in the monthly
salary of his employees. It is also admitted fact that at the time of
filing the complaint the accused has already deposited P.F. amount
was due to be deposited. So, though the prosecution has proved
that the accused has retained the amount of PF for temporary
period, absolutely there is no evidence on record to establish that
the accused has retained the said amount with dishonest intention
and he has misappropriated the retained amount. So, the essential
ingredients to constitute the offence of criminal breach of trust
have not been proved by the prosecution. So, the prosecution has
failed to prove the dishonest intention and misappropriation on
part of the accused. So, ultimately the prosecution has failed to
prove the guilt levelled against the accused person. Hence, I
proceed to pass the following :
ORDER
Accused No.1 & 3 are not found guilty for the offences punishable u/s.406, 409 r/w 34 of IPC.
7 CC.NO.6916/2013Accused No.1 & 3 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 409 r/w 34 of IPC.
Bail bond of the accused No.1 & 3 and that of their surety stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 28th Day of September 2016) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of witnesses examined for prosecution:-
PW.1 : S.Janardhan List of exhibits marked for prosecution:-
Ex.P.1 : Complaint Ex.P.2 : Inspection report Ex.P.3 : Salary statement Ex.P.4 : Due statement Ex.P.5 : Payment statement Ex.P.6 : Residual form Ex.P.7 : Employment statement Ex.P.8 : Show cause notice List of M.Os marked for prosecution:- Nil List of witnesses and exhibits marked on behalf of the accused : Nil (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.8 CC.NO.6916/2013
28.09.2016 State by Senior APP Accused Judgment ORDER (Pronounced in open court vide separate order) Accused No.1 & 3 are not found guilty for the offences punishable u/s.406, 409 r/w 34 of IPC.
Accused No.1 & 3 are acquitted u/s.248(1) of Cr.P.C. for the offences punishable u/s.406, 409 r/w 34 of IPC.
Bail bond of the accused No.1 & 3 and that of their surety stands cancelled. (Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 28th Day of September 2016) (Roopa R. Kulkarni) IV Addl. Chief Metropolitan Magistrate, Bangalore.