Patna High Court
Ram Kishun Prasad vs State Of Bihar on 1 September, 1977
Equivalent citations: 1977(25)BLJR322
JUDGMENT Madan Mohan Prasad, J.
1. The petitioner has come up against the order of his conviction under Section 406 of the Indian Penal Code and the sentence, as modified by the appellate Court, of six months' rigorous imprisonment and a fine of Rs. 250/- passed thereunder.
2. The prosecution case is that the petitioner was a Headmaster of a school at the relevant date of the occurrence and in such capacity he used to receive bags of "Daliav for feeding the children of the school under the "Care" programme. The bags so received used to be stored in the house of one Sheonandan. On 28.5.1967 at about 4 O'clock in the morning when the owner of the house aforesaid, namely, Sheonandan, was sleeping inside the Angan, the other members of his family being away from the village, P. Ws. 1 and 2 who have their bathans adjacent to the house of Sheonandan, found the petitioner coming to the store, taking out two bags of "Dalia" therefrom, getting them loaded on a bullock-cart driven by the second accused (who has been acquitted) in order to carry them to his house in a village one or two miles away. P. Ws. 1 and 2 also heard the petitioner settling the fare of the cart for the purpose of carrying the two bags to his house. The immediate neighbours not being available, P. Ws. 1 and 2 both went to the house of P. W. 3, where a number of villagers used to sleep, and informed them the incident. As a result thereof, P. W. 3 and others proceeded and intercepted the cart. The other witnesses also arrived there. The cart was taken to the Block Office where a written report (Ext. 1) was given by P. W. 3 on its basis, the case was instituted.
3. The defence of the petitioner is that he has been falsely implicated. tie pleaded alibi by stating that he had gone to his village in the morning of the date of occurrence and was not there at all at the relevant time.
4. Both the Courts below have rejected the defence plea and the evidence of the two witnesses examined in support thereof. It appears that a number of charges were framed against the petitioner in the trial Court but the learned Magistrate convicted him only under Sections 406 and 411 of the Indian Penal Code. The appellate Court, however, reversed the decision of the trial Magistrate in respect of the charge under Section 411 but maintained the conviction under Section 406 of the Indian Penal Code, even though reducing the sentence from 15 months to 6 months' rigorous imprisonment, while maintaining the sentence of fine.
5. Counsel for the petitioner has urged (1) that in this case entrustment has not been proved, (2) that there was no misappropriation inasmuch as the acts alleged amounted merely to preparation for misappropriation and (3) that being no shortage in the stock of the quantity of the goods alleged to have been misappropriated.
6. The first contention of learned Counsel has no basis. In this case, as found by the two Courts below, the entrustment in general of the bags of Dalia has been proved by P. Ws. 1 to 4, 6 to 7 and 10. The petitioner has not denied that he is the Headmaster; he has not denied either that he used to receive bags of Dalia in pursuance of the "Care" programme for feeding the School children, he has also, not denied that the bags of Dalia so received used to be stored in the house of Sheonandan. The prosecution produced two documents Ext. 1 the stock verification report of the "Care" materials received for the school, and Ext. 2, the register of "Care" programme showing the receipt of goods under the aforesaid programme, maintained by the petitioner. Along with this, the evidence of the witnesses further proved that the bags so received used to be stored in the house of Sheonandan. That the two bags which are subject-matter of misappropriation had been taken out therefrom, has been proved by P. Ws. 1 and 2. The evidence, in effect, proves the entrustment of all that was received in pursuance of the "Care" programme and all that which was stored in the house of Sheonandan in one of its room, with the petitioner. When there are transactions like the present where a person is being entrusted from time to time and from day to day with property, in my view, the requirement of law is fulfilled when a general entrustment of such properties is proved so as to include a specific property in question. It was not necessary, for the prosecution to say that these two particular bags also had been received on a particular day and entrusted to the petitioner on that day. It may in some cases be well-nigh impossible unless marks are put on the bags about the date of the receipts. In the present case, however, the point remains academic inasmuch as P. W. 3 has identified the contents of the bags to be the Dalia supplied under the "Care" programme. There is no substance thus in the first contention.
7. I will take up the last contention now which is connected with the first contention I have disposed of. That is that the subsequent accounting of the stock in the house of Sheonandan showed that there was shortage only of 11b. and odd. in other words, there was no shortage of 2 maunds, the weight contained in the two bags which are the subject-matter of misappropriation. On this basis it is urged that it could not be said that these two bags were part of the stock entrusted with the petitioner for the purpose of feeding the children. The Courts below have given an explanation, namely, that it appears that the petitioner was not giving the children the requisite quantity every day and thus was making a saving out of that and the two bags may therefore, be such surplus which the petitioner was secretly taking away to his house. This, in my view, is a guess. Admittedly there is no evidence on the record to show that the petitioner was doing all that the Courts below have conjectured. I am not, therefore, prepared to adopt that explanation. There is, however, a more cogent reason. That is that the entire stock of the goods received under the "Care" programme was entrusted with the petitioner. Irrespective of the question as to how much was spent therefrom-whether more or less than the requisite amount-whatever remained in stock undoubtedly was a property in trust with the petitioner, unless the petitioner had taken the defence that part of this stock, namely, the surplus belonged to him or belonged to anybody else; that is not the claim of the petitioner in the present case. It is well known that when the matters are within the special knowledge of an accused, it is his duty to explain and the failure to do so adversely affects him. If really the contents of the two bags in question were not the goods received under the "Care" programme, what was it which prevented the petitioner from saying so. In any case, these two bags are proved to have been a part of the stock entrusted with this petitioner. The fact that it was in excess of the quantity appearing from the account book in the absence of any claim thereto by the petitioner or anybody else, h of no consequence. This argument, therefore, fails on that ground.
8. I now come to the second contention, namely, that there was no misappropriation within the meaning of law. Counsel has urged that assuming that the property had been entrusted to him he had the right to carry it to any place including his home, and this by itself would not constitute misappropriation. Further, he urged that as long as the trust was not violated, the disposal of the property, short of its being converted to any other use, would not amount to misappropriation. The point apparently may seem to be meriting consideration, but in fact there is no substance therein. It is well settled that the word "appropriate" means "to set apart for". If a property is entrusted to a person for a particular use, as soon as it is set apart for another use, it is misappropriated. Appropriation or misappropriation is a mental act and is followed by a physical act. That is the reason why the gist of the offence is dishonest intention. That again is the reason why we find the word "dishonestly" occurring in Section 403 of the Indian Penal Code in respect of criminal misappropriation as also in Section 405 defining criminal breach of trust, The word "dishonest" has been defined in Section 24 of the Indian Penal Code. Where, therefore, a man with the intention of making a wrongful gain to himself or a wrongful loss to another sets apart a property for a use different from the one for which it has been entrusted to him, he commits the act of dishonest misappropriation. In respect of the meaning of the word "appropriate", the view expressed by me receives support from a decision in the case of P. Durugappa v. State of Mysore A.I.R. 1968 Mya. 40. In respect of what I have said about the existence of a dishonest intention and a mental act I receive support from the observations or' the learned Judges of the Supreme Court in the case of Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay . It will appear that in the case before their Lordships, which was a case of defalcation of money, they held that it was not necessary for the prosecution to prove the process and mode of conversion, misappropriation or misapplication of the property entrusted. They further held that dishonest misappropriation or conversion may not ordinarily be a matter of direct proof and may be inferred from circumstances. I will give a few illustrations to drive home the point. Supposing a person has received some money from somebody in trust for a particular use. He hands over the money to another to carry to his wife for his personal use for which it was not entrusted. Has he not, merely by this, misappropriated the amount, even though it may be that the money has not actually been spent by the wife over herself and may be lying in her possession? It must be borne in mind further that misappropriation may as well be for a temporary period.
9. In my view, the circumstances of the present case rule out the argument put forward by learned Counsel. Here the petitioner was sending the bags away. Surely it was not for the discharge of the trust for getting the Dalia cooked and served to the children of the school and this was being done at 4 O'clock early morning, an hour when it was not likely to be detected. The petitioner does not say that he was taking away the bags to his home or to any place for getting them cooked. The evidence proves that the other accused the cartman said that he had been directed to carry the goods to the house of the petitioner. The further conduct of the petitioner is that he has raised a false defence. He says that he was not in the village on the date of the occurrence at all and, therefore, the whole occurrence is false. A false defence in a case of misappropriation is a relevant circumstance which can be taken into consideration for the purpose of proving the guilt see Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay (supra). The circumstances thus clearly show dishonest intention of the petitioner. There can be least doubt that he was carrying away the bags with the intention of converting them to his own use. He had taken the bags out of the stock, not for the purpose of putting them to the use dictated by the trust, but for his personal use. There can thus be the least doubt that he had, by taking out the property for his own use and setting it apart for that purpose, misappropriated the property held in trust by him. Assuming that 1 am not right in interpreting the law as I have done, even so it is clear that he had at least attempted to misappropriate, if it be assumed that actual user of the property is a necessary ingredient to be proved by the prosecution. It may be that the property had not been spent in the personal use of the petitioner. Obviously it was not done because the offence was detected and the property taken out of the possession of the petitioner. Even so, he would be guilty of the offence under Section 406 read with Section 511 of the Indian Penal Code. But I have little doubt that in the circumstances of the present case the petitioner had misappropriated by taking the property out for his own personal use when it was meant for another use. I would accordingly maintain the conviction of the petitioner under Section 406 of the Indian Penal Code.
10. A prayer has been made for interference with the sentence. I think the sentence is not disproportionate to the gravity of the offence. In matters of discretion a Judge would be well advised to take into consideration the circumstances prevailing in society and it is no secret that in this country such breaches of trust are rampant. Here is a case of an institution to help the healthy growth of children sending over, gratis, goods for breakfast or lunch, and that is misappropriated by a man who is incharge. It is still worse to kind an educator teacher or principal-making himself richer at the cost of infants and young children. Considered from that point of view the order of sentence leans on the side of leniency. I would accordingly affirm the order of sentence also.
11. In the result, this application is dismissed.