Delhi District Court
State vs . : Rakesh Sharma on 5 April, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Rakesh Sharma
FIR NO : 332/97
U/s : 408 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. no. of the case 273/97
2. Date of Institution 01.10.97
3. Offence complained of
or proved U/sec. 408 IPC
4. Date of Offence 01.03.97
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5. Name of the complainant Gurdeep Singh
6. Name of the accused Rakesh Sharma
S/o Gaya Prasad
R/o Balia Khera, Thana
Jaitpur, Zila Agra (U.P.)
6. Plea of the accused Pleaded not guilty.
7. Final order Acquitted
8. Date of Order 5.4.08
Brief reasons for decision:
The story of the prosecution in brief is as under :- That on dated 01.03.97 accused Rakesh Sharma took a sum of Rs. 20,000/- from the complainant Gurdeep Singh on the pretext that this money was to be distributed among the staff as Rakesh Sharma was the incharge and responsible for distributing the 3 income of staff members. It is further alleged that on 05.06.97 Rakesh Sharma however took the payment of Rs. 10,000/- from Ashok Kumar and absconded . His whereabouts were not known , hence FIR U/sec. 408 IPC was registered against the accused.
2. IO conducted detailed investigation and filed his final report u/sec. 173 Cr.P.C. After compliance of initial requirements copies of documents were supplied to the accused u/sec. 207 Cr.P.C. and arguments on charge was heard. Charge u/sec. 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 only three witnesses have been examined by the prosecution.
4. PW 1 Ct. Kanwar Pal has stated that on 23.06.97 he was posted as constable at PS Adarsh Nagar. On that day he alongwith HC Ram Kumar was on patrolling duty and reached at Subham Banquet Hall where they met complainant Gurdeep Singh who gave his statement on which IO prepared the 4 rukka and handed over to Ct. Kanwar Pal PW 1 for getting the FIR registered. FIR was registered and PW 1 came back to the spot alongwith the copy of FIR and original rukka and handed over the same to HC Ram Kumar. IO prepared the site plan . Accused Rakesh Sharma was searched but not found.
5. PW 2 Ashok Kumar has stated that marriage of his bhanji (niece) was solemnized in Mann Banquet Hall and Kuldeep Singh was the owner of that banquet hall. Kuldeep Singh and Rakesh Sharma came to his house and the amount agreed to be paid was settled as 42 thousand. Rs. 5000/- was handed over to Rakesh Sharma who handed over the same to Kuldeep in his presence. Kuldeep, the owner of the Banquet Hall told that he could make the payment to Rakesh Sharma as there was no difference in between Rakesh Sharma and Kuldeep. After the solemnization of the marriage, the remaining amount was paid to Kuldeep . Rs. 10,000/- were paid to Rakesh regarding chat and cold drinks which were arranged by Rakesh Sharma outside the Banquet Hall. This witness was found resiling from his statement so given to police u/sec. 161 Cr.P.C. . Therefore, ld. APP for State sought permission to cross-examine this witness which was 5 allowed. During cross-examination PW 2 stated that payment of Rs. 38,000/- was also made to Rakesh but the said payment made in the Banquet Hall in the presence of Kuldeep Singh. With regard to payment of this amount to the owner of the Banquet Hall, PW 2 stated that he could not say whether this amount was paid to the owner of the Banquet Hall. PW 2 further stated that he could not say whether Rakesh Sharma took away the payment from him. During his cross-examination by the counsel for accused PW 2 further corroborated his examination in chief stating that the payment of Rs. 28,000/- made to Rakesh Sharma for the arrangement outside of the Banquet Hall and this fact was known to the owner of the Banquet Hall.
6. PW 3 Gurdeep Singh has stated to the effect that in the year 1997 he was running one Banquet Hall and restaurant at Sarai Peepal Thala. Accused Rakesh Sharma was known to him as he was his contractor . One other person was also the contractor alongwith the accused. Accused alongwith that other person was having the responsibility to pay the salary to the staff but did not pay the salary. PW 3 stated that he do not remember how much amount was paid to the accused for distributing of salary 6 to the staff. 5/8 persons were employed in the restaurant. Money was paid to the accused. PW 3 in examination in chief further stated that he did not remember whether accused had taken the payment from other parties or not and whether that amount was return to him or not. During cross-examination PW 3 stated that as it was the procedure whenever any function was organized in the Banquet Hall accused used to make the payment first and then he used to get the payment from them which was paid to him in cash. No receipt was taken from the accused whenever any payment was made to him. PW 3 further stated during his cross-examination that he did not remember that how much payment was made to the accused.
7. After examination of these three PWs several opportunities were given to the prosecution to examine its witnesses , however despite giving several opportunities no other witness turned up in the witness box . Thus, on 3.1.08 the PE was closed and statement of accused was recorded on 5.3.08 wherein all the available incriminating evidence was explained to him for which accused pleaded his innocence and stated that he do not want to lead any evidence in defence.
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8. I have heard final arguments so advance by the ld. APP for the State and on behalf of ld. Defence counsel for accused and I have gone through the material so placed before me.
9. From the testimonies of Pws and the material so placed on record I am of the opinion that testimonies of Pws do not inspire their confidence and the story of the prosecution is not supported by the PWs. It is further reflected that PW 2 Ashok Kumar and PW 3 Gurdeep Singh who are the material witnesses in this case have also not supported the story of the prosecution as they both resiled from their earlier statments so given u/sec. 161 Cr.P.C. to the IO . It is important to discuss the scope of Section 408 IPC Section 408 IPC reads as under :-
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 8 for a term which may extend to seven years, and shall also be liable to fine.
10. Section 408 IPC lays down the offence pertaining to criminal breach of trust by clerk or Servant. It is further important to define the term Criminal Breach of Trust which is defined as u/sec. 405 IPC.
Section 405 IPC reads as under :
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 willfully suffers any other person so to do, commits "criminal breach of trust". Explanation 1. A person, being an employer, of an establishment whether exempted under Section 9 17 of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 (19 of 1952) or not, who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2 - A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948) , shall be deemed to 10 have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act,. Shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
11. After reading Section 405 IPC and 406 IPC and 408 IPC together following are the essential ingredients :
1. That the accused was entrusted with some property.
2. That he was so entrusted as a clerk or servant
3. The accused has dominion over such property
4. That he committed breach of trust in respect of that property.
12. To bring home an offence u/sec. 408 IPC prosecution is to prove all the ingredients for proving the offence u/sec. 406 IPC and further the prosecution has to prove that accused was clerk or servant of the owner of the property entrusted 11 or was employed as his clerk or servant and however that property was entrusted with the accused in such capacity as clerk or servant.
13. The offence of breach of trust can be said to have committed only when all the ingredients of that offence as defined in the statute are found to have been satisfied. Doctrine of public trust cannot be invoked in fixing the criminal liability of the whole matter is to be decided on the principles of criminal liability. It was held in Common Cause A Registered Society Vs. Union of India AIR 1999 , Supreme Court 2979.
14. The offence of Criminal Breach of Trust necessarily involves the facts of :-
a) Entrustment of the property
b) A dishonest misappropriation or conversion of the
property by the agent to his own use
c) Dishonest use or disposal of the property in violation of
mandate of the law prescribing the mode in which the
entrustment is to be discharged
d) Dishonest use or disposal of the property in violation of
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the terms of any legal contract either express or implied regarding the discharge of entrustment or willfully allowing some other person to do so .
15. Thus, the essential ingredients to be proved first of all, is the entrustment of the property. The word entrusted is not a term of law. In its most general significance all its imports is a handing over of the possession for some purpose which may not imply the conferring of any proprietary right at all. It was held by Lord Haldane in Lake V. Simmons (1927) AC 487. The natural meaning of 'entrusted' involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty.
16. Thus, the expression of "entrustment "carries with it the implication that the person handing over any property or on whose property is handed over to another, continues to be its owner. Further, the person handing over property must have confidence in the person taking the property so as to create a fiduciary relationship between them.13
17. Section 405 IPC does not provide that the entrustment of property should be by someone or the amount received must be the property of 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 being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustement and for the benefit of the owner.
In case State of Gujrat Vs. Jaswant Lal , AIR 1968 Sc 700 It was held by Supreme Court of India that in case of entrustment , the ownership of the property retained by the person who entrusts the seme. Before there can by any entrustment , there must be an obligation annexed to the ownership of the property and a confidence reposed in an accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner.
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18. In the present case the accused is stated to be the employee of the Gurdeep Singh PW 3 , thus the facts is not disputed by the accused. It is further not disputed that the accused , as per his duties and the responsibility so assigned to him, he was to distribute the said amount among the lower staff, if any , so received by the Gurdeep Singh , the owner of the Subham Banquet Hall and Restaurant. In the present case PW 3 the complainant has stated that he employed Rakesh Sharma as contractor. The another person was also contractor alongwith the Rakesh Sharma. They both have to pay the salary to the staff but it was not paid by them. The amount however was not remembered by the Gurdeep Singh. Upon asking the conduct of the accused Rakesh Sharma that whether he had taken payment from that party or not , nothing was stated by the Gurdeep Singh as he was not remembering that fact. During his cross-examination PW 3 has stated that "It is correct that whenever a function was organized in Banquet Hall , he (Rakesh Sharma) used to make the payment first then used to get the payment from us (owner) and we (owner) used to make the payment by cash. During his further cross-examination PW 3 stated that he did not remember as to how much payment was made to the accused for making the further payment". Thus, as per the PW 15 3 himself it has been reflected that accused Rakesh Sharma was to make the payment to the lower staff first and then he was to receive the same from the Gurdeep Singh later on. This statement of Gurdeep Singh has created a doubt in the story of the prosecution that if the payment to the lower staff was to be made first and then it was to be claimed later on from Gurdeep Singh then how the accused had been entrusted the said amount which was to be distributed among the lower staff and how there was a misappropriation of the said amount , if the statement of PW 3 is to be believed , the payment have already been made to the lower staff/labourers.
19. PW 2 Ashok Kumar has further stated that the marriage of his niece (Bhanji) was solemnised in Mann Banquet Hall, Adarsh Nagar . Rakesh Sharma was Manager of that Banquet Hall and Gurdeep Singh was the owner of that Banquet Hall. Payment of Rs. 43,000/- was agreed to pay. Out of which 5,000/- was handed over to Rakesh Sharma which was made in the presence of Owner of the Banquet Hall. Owner of the Banquet Hall further stated to Ashok Kumar that all the payment was made to Rakesh Sharma and there was no difference between him and 16 Rakesh Sharma. The remaining amount , after marriage, was given to the owner of the Banquet Hall and Rs. 10,000/- were paid to Rakesh Sharma regarding the chat and cold drinks which were arranged outside of the Banquet Hall by Rakesh Sharma. The examination of PW 2 Ashok Kumar have further created a doubt in the story of the prosecution that if the due payment was made to the owner of the Banquet Hall and Rs. 10,000/- was made to Rakesh Sharma for the purpose of chat and cold drinks which was arranged by him outside the Banquet Hall then where arise the question of entrustment and any other dominion of property . A cash amount in this present case, which was to be distributed to the lower staff so implied by the accused on behalf of the owner of the Banquet Hall. This witness was found resiling from his earlier statement so given to the IO u/sec. 161 Cr.P.C,. and ld. APP for the State cross-examine this witness and during cross-examination he stated that he cannot say whether Rakesh Sharma gave Rs. 28,000/- to Gurdeep Singh or not, however, the said payment was made in the presence of the owner of the Banquet Hall.
20. It is further important to mention here that only three witnesses have been examined in this case and apart from 17 these two public witnesses only Ct. Kanwar Pal have been examined. Thus, there is no other evidence on record from the side of the prosecution . Thus, the testimonies of these two Pws i.e. PW 2 Gurdeep Singh and PW 3 Ashok Kumar do not inspire into their confidence and I am of the considered opinion that they have created a doubt in the story of the prosecution so narrated by the IO.
21. It is further important to mention here that PW 1 Ct. Kanwar Pal has stated extraneous fact after the registration of the FIR . IO in this case has not been examined. No reasonable explanation have been furnished by the prosecution for not examining the other witnesses. The list of witnesses in this case reflects that there are 10 witnesses. No plausible explanation has been placed by the prosecution for such non-examination or non- production of the other witnesses. The IO in this case have also not been produced and examined by the IO. The non-examination of IO creates a doubt and there is a serious omission .
In case 1998 (1) Crimes 709 wherein it was held that non-examination of IO in criminal trial cases causes a serious lacuna in prosecution case and 18 prejudice to the accused. The tendency of the IO to keep away from the Court is not good and in case 1964 Allahabad Cr.L.J. 455 it was held that non- examination of IO was a serious omission.
22. Apart from the other discrepancies in the story of the prosecution as stated above that all the remaining witnesses have not been examined. The testimony of PW 2 and PW 3 also do not fit into the story of the prosecution in the above stated essential requirements in the covering act of accused Rakesh Sharma as alleged by the prosecution within ambit of criminal breach of trust. PW 3 Ashok Kumar , the owner of the Banquet Hall has not stated in clear words as to what amount was handed over to the accused. The PW3 himself has stated that Rakesh Sharma used to make the payment to the lower staff first and then used to get it back from them subsequently. If the statement of PW 3 is to be believed, then there arises no question of any other dominion over the property and entrusting the same to the accused with a duty casted upon him to be subsequently distributed among the other persons. PW 2 Gurdeep Singh also have been declared hostile and have resiled from his earlier statement , therefore, PW2 19 have also not supported the story of the prosecution.
23. In the light of these facts and circumstances , I am of the considered opinion that the first essential requirement of the offence of criminal breach of trust is not established by the prosecution that the accused was entrusted with some property and dominion was handed over to accused over such property. In the light of these facts and circumstances as first essential requirement which needs to be proved in this case against the accused in order to establish his liability have not been shown by the prosecution fully , I am of the considered opinion that the remaining essential requirement against the accused need not to be looked into and considered. In the light of these facts and circumstances I am of the considered opinion that none of the prosecution witnesses (only three witnesses have been examined in this case) has supported the story of the prosecution and in the absence of non-examination of other witnesses including the IO a doubt have been created.
24 . It is true evidence is to be weighed and not counted but in this case whatever evidence has been produced by the prosecution 20 is not sufficient to fortify the edifice of the prosecution case and the prosecution has failed to prove all the links. In case where the prosecution has failed to prove all the links, the benefit of doubt has to be given to the accused. In my view I am fortified with the observations made in the case "State of Rajasthan Vs. Daulat Ram 1980 CAR 169 (Supreme Court) wherein it was held that the prosecution has failed to prove all the links and accused was acquitted.
25 In the light of above observation I am of the considered opinion that as the prosecution has not established its case against the accused Rakesh Sharma S/o Gaya Parsad, accused Rakesh Sharma S/o Gaya Parsad is acquitted of the charges so levelled against him. Surety for accused stands discharge. Documents if any be returned. Endorsement if any, be cancelled as per rules. File be consigned to the record room.
Announced in open Court (PRASHANT KUMAR)
Dated 5.4.08 Metropolitan Magistrate
Delhi
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FIR No. 332/97
PS Adarsh Nagar
5.4.08 Present : Ld. APP for the state.
Accused Rakesh Sharma is present on bai.
Final arguments heard. Final judgment is pronounced vide separate order sheet. Accused Rakesh Sharma S/o Gaya Parsad is acquitted of the charges so levelled against him. Surety for accused Rakesh Sharma stands discharged. Documents if any, be returned. Endorsement if any, be cancelled as per rules. File be consigned to the record room.
(PRASHANT KUMAR) Metropolitan Magistrate Rohini/Delhi 5.4.08 23