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Madhya Pradesh High Court · body

2001 DIGILAW 223 (MP)

Raghvendra Kumar v. State of M. P.

2001-03-08

S.C.PANDEY

body2001
This criminal revision under section 397 read with section 401 of the Code of Criminal Procedure is directed against the judgment dated 24.6.94 delivered in criminal appeal No. 21/92 by 1st Addl. Sessions Judge, Betul confirming the judgment delivered by the learned JMFC, Betul in criminal case No. 385/91 on 10.6.92. The applicant has been convicted under section 409 IPC by the learned trial Magistrate and was sentenced to six days RI. Undisputedly the applicant has already undergone that sentence. However, the applicant filed appeal against the judgment of the learned trial Magistrate before the learned, 1st Addl. Sessions Judge, Betul, who has confirmed the judgment delivered by the learned JMFC. The facts of this case disclose that the applicant was working as Branch Manager in Adim Jati Sahkari Sewa Samiti at Branch, Sarni. It was the duty of the applicant to maintain accounts. It is alleged that on 4.12.82 applicant did not enter receipt of Rs.391.86/- and on 13.12.82 he did not make entry in the account book of Rs. 1,000/-. The result was that the total account recorded by the applicant in the account book was found to be less to the extent of the aforesaid amount. The prosecution case is that the applicant has committed criminal breach of trust as a public servant in respect of the aforesaid amount and for this reason he did not make entry in the account book. After the accounts were inspected, the discrepancies in the entries were found during the course of the audit. Therefore, the matter was handed over to the police for investigation and after investigation a charge sheet was filed for an offence punishable under section 409 IPC. Accordingly, the applicant was charged for commission of an offence under section 409 IPC. Learned trial Magistrate, after recording the evidence of the prosecution, came to the conclusion that an offence punishable under section 409 IPC has been proved. Further, he sentenced the applicant to six days RI which has already undergone by the applicant. In appeal, the judgment of the learned trial Magistrate was confirmed by the learned Addl. Sessions Judge. It is apparent that the applicant has been charged with an offence punishable under section 409, IPC which is nothing but a criminal breach of trust committed by a public servant or other persons named in that Section. In appeal, the judgment of the learned trial Magistrate was confirmed by the learned Addl. Sessions Judge. It is apparent that the applicant has been charged with an offence punishable under section 409, IPC which is nothing but a criminal breach of trust committed by a public servant or other persons named in that Section. Infact the criminal breach of trust has been defined under section 405 of IPC. The necessary ingredients of section 405 IPC are that : (i) the person concerned must be entrusted with the property or should have any dominion over the property (ii) the aforesaid person either dishonestly misappropriates or converts the property to his own use and (iii) dis-honestly uses or disposes of that property or allows wilfully any other person to do so in violation of any direction of law prescribing any mode in which such trust is to be discharged or of any legal contract made touching the discharge of such trust. It is apparent from the language of section 409 of IPC, the ingredient No. (i) and (ii) of criminal breach of trust must be present. However, the words "commits criminal breach of trust" also incorporate other ingredients in that section. The facts of this case have to be examined in the light of the aforesaid definition of criminal breach of trust committed by a public servant. It is not in dispute that the applicant was a Branch Manager, therefore, he was a public servant. However, the evidence on record suggests that there was some discrepancies in the cash book and the accounts maintained by the applicant. The evidence of PW I Krishna Kumar discloses that there was no entry on 4.12.82 in respect of Rs. 391.86/- as detected from the cash book which shows the receipt thereof: Similarly on 13.12.82 as per cash book, total amount and balance should have been Rs. 2599.82 paisa, but applicant had showed this amount to be Rs. 1599.82 paisa. Thereby, Rs. 1,000/- less was found mentioned in the account books. These accounts were shown to be in Ex. P-2 and P-3 which are the copies of the original account book made by the applicant himself. The cash books were also produced before the learned trial Judge showing that there was entries to the effect regarding receipt of Rs. 391.86 as also of Rs. 2599.82 in all. These accounts were shown to be in Ex. P-2 and P-3 which are the copies of the original account book made by the applicant himself. The cash books were also produced before the learned trial Judge showing that there was entries to the effect regarding receipt of Rs. 391.86 as also of Rs. 2599.82 in all. It has also been held by both the Courts below that the entries were in the handwriting of the applicant. It appears that both the Courts below were impressed by the fact that when this amount was found to be short at audit, the applicant deposited the total amount found to be short as per account books on comparison with the cash book. It cannot be disputed that applicant being a Branch Manager had dominion over the property of the co-operative society and all the money received by him in his capacity as a Branch Manger are required to be deposited with the co-operative society. If he did not do so himself or allowed wilfully any person to meddle with the money of co-operative society, he would be liable to be prosecuted for criminal breach of trust under section 409 IPC. But it is essential that there must be some evidence on record to show that the total amount of Rs.391.86 was not deposited in cash by the applicant on 4.12.82 and on 13.12.82 he had taken out Rs. 1,000/- from the cash in deposit with the co-operative society at Sarni. There is no evidence whatsoever on record. On the other hand, PW I Krishan Kumar in paragraph 19 admits that all that he can say was that this amount was less because it was not indicated by the applicant in the account book. The actual money in deposit was not verified, between the period of 4.12.82 to 13.12.82. In other words there was no proof that the co-operative society lost Rs. 1,391.86/-. PW 2 Shivdayal who was a supervisor has also said from the inspection report and he has no personal knowledge about the fact of mis-appropriation or conversion on part of the applicant of Rs. 1,391.86/-. Similarly PW 5 Pyarlal does not throw any light. The evidence of PW 6 P.N. Sharma the Investigating Officer is of no consequence. PW 8 P.R. Lokhande, the Branch Manager was not present at the time the offence was committed. 1,391.86/-. Similarly PW 5 Pyarlal does not throw any light. The evidence of PW 6 P.N. Sharma the Investigating Officer is of no consequence. PW 8 P.R. Lokhande, the Branch Manager was not present at the time the offence was committed. Therefore, there is hardly any evidence to show that Rs. 1,391.86/- were not deposited by the applicant in the branch office of the co-operative society. It appears that it is not the case of the prosecution that infact the co-operative society suffered the loss. It is being argued on the basis of the entries that the co-operative society might have suffered a loss of Rs. 1,391.86/- because there was no entry in the account books. This Court does not appreciate this way of proving the evidence on the basis of accounts books. It is true that discrepancies in the cash book and account book were discovered after two years, but this fact cannot be used against the applicant for convicting him. It is the duty of the co-operative society to get its account checked and find out if there was any amount missing which was entrusted to the applicant. This Court, therefore, comes to the conclusion that it has not been proved that the applicant had dishonestly misappropriated or converted any money for his own use or done anything which may amount to causing wrongful gain to himself or wrongful loss to the society. It may be that the applicant may be negligent in keeping the account books but for this reason he cannot be convicted under section 409 IPC. There is every possibility that the applicant might have forgotten to make an entry in the account book or he might have made wrong entries on two dates. Unless and until the fact of making wrong entries is correlated with the actual misappropriation, no offence could be made out. It is argued that after a long lapse of time, it is not possible to find out the leakage in the income of co-operative society. But this difficulty cannot result in any presumption in favour of the prosecution. Nor does the fact of subsequent deposit of Rs. 1395.20/- would give any weight to the case of the prosecution because it does not amount to confession of guilt. He may have done so because he did not want to face the trial. But this difficulty cannot result in any presumption in favour of the prosecution. Nor does the fact of subsequent deposit of Rs. 1395.20/- would give any weight to the case of the prosecution because it does not amount to confession of guilt. He may have done so because he did not want to face the trial. The result is that the judgments of the learned Courts below referred above are hereby set aside and the applicant is acquitted of the offence. The revision is allowed.