A. Panchamuthu, In re. v. . — 1984 DIGILAW 48 (MAD)

Order This revision is directed against the judgment of the learned Sessions Judge, Dharmapuri Division at Krishnagiri, confirming the conviction and sentence passed by the learned Chief Judicial Magistrate, Krishnagiri, against the petitioner under Sections 409 and 477-A, I.P.C., to suffer imprisonment till the rising of the Court and to pay a fine of Rs.250/-in default to undergo R.I., for two months under each offence. 2. The brief facts of the case which are necessary for the disposal of this revision may be narrated as follows: The petitioner herein, who was the first accused before the trial Court was the President of Onnappagoundanhalli village Co-operative Agricultural Credit Society from the year 1967 to 1974 and he was in charge of the affairs of the Society including the cash and the second accused who was the Bank Inspector, was maintaining the accounts of the Society from 29.11.1971 to 9.8.1973. According to the prosecution, there was a cash balance of Rs. 116.20 on 23.8.1972 and it was not carried over to the next day transaction in the cash book, i.e., on 4.5.1973, but it was carried over only on 26.9.1974 and the relevant entries were written by the second accused and it would show that both the accused had misappropriated the said sum of Rs.116.20. 3. As per Exhibit P-8, the bye-law of the Society, the President viz., the petitioner was responsible for the cash and other properties of the Society. As per the order of P.W.4, P.W.3 conducted an enquiry under Section 65 of the Tamil Nadu Co-operative Societies Act. According to P.W.3, The petitioner did not appear before him in spite of two summons issued to him under Exhibits P-9 and P.10 and he recorded the statement from the second accused and submitted his report to P.W.1, who preferred the complaint, Exhibit’ ‘P-2, to the Police. P.W.5 investigated the case and filed the charge-sheet against the accused. 4. The petitioner and the second accused denied the evidence of P.Ws. The second accused examined one witness as D.W.I to the effect that the Society was not functioning properly and there were huge arrears to be collected from the members of the Society and hence the second accused was directed by the Central Bank to collect these arrears and accordingly, he had written accounts during the period of his service. 5. The second accused examined one witness as D.W.I to the effect that the Society was not functioning properly and there were huge arrears to be collected from the members of the Society and hence the second accused was directed by the Central Bank to collect these arrears and accordingly, he had written accounts during the period of his service. 5. The petitioner was convicted by the trial Court for his failure to bring into account the cash on hand of Rs. 116.20 on 23.8.1972 on the next day of transaction, i.e., on 4.5.1973, but it had been carried over only 26.9.1974 after lapse of several months and his failure to appear before P.W.3 in spite of summonses issued to him. According to the learned Magistrate, it is seen from the entry dated 26.9.1974. “A. The learned Magistrate held that the petitioner had misappropriated the above sum of Rs. 116.20. The learned Magistrate repelled the contention of the revision petitioner that the prosecution has not satisfactorily established the conversion of the property to his own use and held that the very entries in the cash book would clearly show that the petitioner had temporarily misappropriated the amount and he was guilty of the offences punishable under Sections 409 and 477-A, I.P.C. The learned Magistrate acquitted the second accused on the ground that he had only written the accounts and he was rot in charge of the funds of the Society and that he has not signed the entry. The learned Sessions Judge confirmed the conviction and sentence awarded to the petitioner. 6. In the instant case, according to the bye-law of the Society, Exhibit P-8, the petitioner was the Custodian of the cash and other properties of the Society. It is in evidence that the Society did not function properly and a huge amount of arrears of loan was due from the members of the Society. Even according to the prosecution, the cash balance of Rs. 116.20 found in the cash book on 23.8.1972 has not been carried over to the next date of transaction, i.e., on 4.5.1973, but it was brought into account only on 26.9.1974 under the head that it was left by the President. Even according to the prosecution, the cash balance of Rs. 116.20 found in the cash book on 23.8.1972 has not been carried over to the next date of transaction, i.e., on 4.5.1973, but it was brought into account only on 26.9.1974 under the head that it was left by the President. It is significant to note that except the entries in the cash book, which also has not been duly proved, there is no other evidence either for the entrustment or for dishonest conversion and there was nothing on evidence to show that the petitioner has converted the same for his own use. It is the admitted case that the Society was not functioning and it was nothing but defunct one and the accounts were not written day to-day and it is only the petitioner himself had brought the same into account after noticing the omission to write the cash balance long prior to the enquiry. The petitioner was the President of the Society from 1967 to 1974 and there was nothing to show that he was in financial difficulties during the said period and further, the amount involved is very meagre. 7. The learned counsel for the revision petitioner drew my attention to various decisions of the Supreme Court and this Court and submitted that the mere failure to bring the cash into account would not amount to criminal liability punishable under Section 409 , I.P.C., or Section 477-A, I.P.C. In Sardar Singh v. State of Haryana Sardar Singh v. State of Haryana (1977)1 S.C.C. 463 : (1977) S.C.C. (Crl.) 121: A.I.R. 1977 S.C. 1766: (1977) Crl.L.J. 1158 the Supreme Court held as follows: “An essential ingredient of the offence under Section 405 is that the accused being in any manner entrusted with property or with 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. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. It requires something much more than mere failure or omission to return the property”. 8. In the present case, the prosecution has not been able to show that the accused dishonestly misappropriated or converted the property to his own use or dishonestly used or disposed of it. Hence the conviction under Section 409 cannot stand. 9. In Vasudevan IN RE. Vasudevan IN RE. (1971) L.W. (Crl.) 2, Somasundaram, J., relying on the decision in Kuppuswami IN RE. Kuppuswami IN RE. (1966) MLJ. (Crl.) 353, held as follows: “In order to establish an offence under Section 409, I.P.C, not only there must be an initial entrustment of the goods, but there should be a subsequent dishonest conversion to the use of the concerned accused, that alone constitutes criminal breach of trust. The bare fact of the disappearance of certain goods without an iota of evidence about the handling of these goods by the accused person, or their disposal by them is not sufficient. Criminal liability has to be strictly proved and cannot be based upon conjecture or probabilities, however, reasonable that conjecture might be, as the criminal jurisprudence is clear that convictions cannot be based on mere suspicion or conjecture.” 10. In Rama Rao v. The Sub-Inspector of Police, Kaiahasti Station Rama Rao v. The Sub Inspector of Police, Kaiahasti Station (1937) M.W.N. (Crl.) 126: (1937) M.W.N. 566 it was also held that mere false entry in the account book is not enough and further evidence to prove the ingredients is necessary to warrant conviction. 11. In the instant case, except the fact that the petitioner has failed to bring into account on the next date of transaction the cash balance, but it was brought into account only after several months, there was no other evidence to prove that there was dishonest conversion to his own use and as observed in the above decisions, criminal liability has to be strictly proved and cannot be based on mere supposition or conjecture. The failure of the petitioner to appear before the enquiry officer long after the above transaction, cannot be put against the petitioner for convicting him under Sections 409 and 477-A, I.P.C. Thus, on a careful consideration of the materials placed before me, I am of the view that the prosecution has not proved that the petitioner has either dishonestly misappropriated or converted the amount into his own use and in any event, the evidence adduced by the prosecution is not capable of sustaining the legal conviction of this petitioner. 12. In the result, the conviction and sentence imposed on the petitioner are set aside and he is acquitted of the offences for which he stood charged. The fine amount paid, if any, is directed to be refunded to the petitioner forthwith. The revision will accordingly stand allowed. V.K. ----- Revision allowed.