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2005 DIGILAW 2846 (RAJ)

Maniram v. State of Rajasthan

2005-10-28

VINEET KOTHARI

body2005
Judgment Vineet Kothari, J.-This revision petition under Section 397 read with Section 401 Criminal Procedure Code is directed against the Judgment dated 22.03.1991 of learned Additional Sessions Judge, Nohar in Criminal Appeal No. 26/1982, whereby the learned appellate Court below dismissed the appeal of the petitioner and upheld the conviction order dated 08.06.1982 passed by the learned trial Court under Section 409, IPC. 2. The prosecution case against the petitioner was that during the period 30.01.1974 to 05.07.1974, the petitioner Maniram was working as Patwari, Halka Sirangsar B, Tehsil Nohar and collected a sum of Rs. 1402.20 from different villagers of village Kansar, Rs. 2218.89 from different villagers of village Devasar totalling to Rs. 3620.99 and did not deposit the said Government Revenue with the Government treasury. Therefore, the appellate Court sentenced the petitioner for a period of 3 years S.I. and a fine of Rs. 4,000/-and in default of payment of fine further to undergo 1 years R.I. 3. The present revision petition was admitted by this Court on 03.04.1991 and record was summoned and on the same date, sentence was also suspended. 4. Learned Counsel for the petitioner urged before this Court that the prosecution has not established the ingredients of Sections 405 and 409 of IPC, in as much as they have not shown as to how the Government Revenue collected by the petitioner was converted for his personal use and mis-appropriated and in the absence of the same, the petitioner cannot be held guilty for criminal breach of entrusted money so as to constitute an offence under Section 409, IPC. He relied upon the following Judgment in support of his submissions. State of Rajasthan vs. Satya Narayan, reported in 1968 RLW page 601. Sardar Singh vs. State of Haryana, reported in 1977 AIR SC 1766. Ved Prakash Handooja vs. Delihi Administration, reported in 1974 AIR SC 2326. State of Rajasthan vs. Maga Ram, reported in 2002 (3) RCC 1406. Shrilal vs. State of Rajasthan, reported in 1998 (2) RCC 500 1992 RCC page 88. 5. Sardar Singh vs. State of Haryana, reported in 1977 AIR SC 1766. Ved Prakash Handooja vs. Delihi Administration, reported in 1974 AIR SC 2326. State of Rajasthan vs. Maga Ram, reported in 2002 (3) RCC 1406. Shrilal vs. State of Rajasthan, reported in 1998 (2) RCC 500 1992 RCC page 88. 5. Section 409, IPC under which the petitioner has been convicted reads as under: -“Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 6. Section 405 which defines criminal breach of trust is also reproduced hereunder:-“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 wilfully suffers any other person so to do commits, “criminal breach of trust”. 7. The facts of the case law relied upon by the learned Counsel for the petitioner in his favour namely State of Rajasthan vs. Satya Narayan, reported in 1968 RLW page 601, as noted by the Court in Para 3 of the said Judgment are reproduced below:- “The accused was clerk in the cattle pound of the Municipal Board, Ratangarh from 13.08.1958 to 18.03.1959 and during this period he realised Rs. 620.12 on account of auction money and Rs. 424,50 paise on account of penalty and provision for cattle. Thus, he realised a total amount of Rs. 1044.62 paise. It appears that by a resolution dated 16.03.1959, the services of the accused as well as a few other employees of the Municipal Board were dispensed with. 620.12 on account of auction money and Rs. 424,50 paise on account of penalty and provision for cattle. Thus, he realised a total amount of Rs. 1044.62 paise. It appears that by a resolution dated 16.03.1959, the services of the accused as well as a few other employees of the Municipal Board were dispensed with. It further appears that a few notices were sent by the Municipal Board to the accused to deposit the amount lying with him but those notices were sent by the Municipal Board to the accused to deposit the amount lying with him but those notices were not served. Ultimately the notice dated 26.05.1959 was served upon the accused on 30.05.1959 and thereupon on 01.06.1959 he made an application to the Executive Officer, Municipal Board Shri Ramsingh Rathore that he had brought the record and the amount of Rs. 1044.62 paise lying with him which may be deposited.” 8. The facts of the said case show that the facts of that case were on entirely different footing and since the services of the petitioner in that case were dispensed with by the Municipal Board, some money of the Municipal Board which remained with the petitioner in that case were deposited by him as soon as the notice was served upon by him who brought the money alongwith record of the Municipal Board and deposited the same with the Municipal Board. Obviously, in such facts, the Court found that mere temporary retention of money in the circumstances, could not amount to criminal breach of trust. 9. In the present case, the petitioner was working as Patwari, admittedly collected Government Revenue from different villagers and instead of depositing the same money with the Treasury, he retained the same over a period of one year with him, therefore, the aforesaid case law cited by the learned Counsel for the petitioner, does not advance his case in any manner and the same is distinguishable. 10. 10. Similarly, the Judgment of Honble the Supreme Court in Sardar Singhs case (Supra), the case of the prosecution was that the appellant Sardar Singh failed to return and hand over the charge of some of the documents of the office, which he was holding as Patwari for the time being and was placed under suspension on account of Departmental Enquiry, which was proposed to be hold against him and in respect of an amount of Rs. 26.50 which had been received by the appellant in his capacity as Patwari for the purpose of giving certified copies and which he failed to account for at the time when the charge was taken over by him. In these circumstances, Honble the Supreme Court held that no case of Section 409, IPC was made out against the appellant and the conviction was set aside. With great respect, the said case law also does not support the case of the petitioner herein, who retained the Government collection with him over a period of one year contrary to Rules and failed to deposit the same in the Government Treasury. 11. Similarly the other case as relied upon by the learned Counsel for the petitioner, are also in the different sets of facts and circumstances, which are distinguishable from the facts of the present case. 12. This Court in a case of Patwari convicted under Section 409, IPC itself , has recently upheld the conviction, almost in similar circumstances, however, reducing the period of sentence to three months in S.B. Criminal Revision Petition No. 188 of 1992 (Alam Khan vs. State) decided on 210.2005. The facts of that case and the present case are almost on similar lines. 13. Accordingly, having gone through the impugned orders and record of the case, no case for interference with the impugned orders is made out and the prosecution has established the case under Section 409, IPC against the petitioner and the conviction is justified. 14. However, on the period of sentence, learned Counsel for the petitioner submitted that the incident is about 30 years old and now that petitioner must be a very old person and, therefore, a lenient view about the period of sentence may be taken by the Court. The Courts below have imposed the aforesaid punishment of 3 years S.I. and fine of Rs. 4,000/-. The Courts below have imposed the aforesaid punishment of 3 years S.I. and fine of Rs. 4,000/-. It is considered just and proper if the period of the sentence is reduced to the period of 3 months S.I. as against 3 years S.I. and fine of Rs. 4,000/- is increased from Rs. 4,000/- to Rs. 10,000/-and in default of payment of fine further to undergo 3 months S.I., is awarded. 15. With the aforesaid modifications with the sentence, the present revision petition is liable to be dismissed and the same is accordingly dismissed.