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Madhya Pradesh High Court · body

2009 DIGILAW 25 (MP)

Prabhat Kumar Das v. State of M. P.

2009-01-06

A.K.SHRIVASTAVA, K.S.CHAUHAN

body2009
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.9.1997 passed by learned V Additional Sessions and Special Judge, (CBI) Jabalpur in Special Case No. 4/95 convicting appellant under section 409 of IPC and 13 (1) (c) read with section 13 (2) of Prevention of Corruption Act, 1988 (in short 'the Act') and sentencing him to suffer as indicated in the impugned judgment, the appellant has knocked the door of this Court by preferring this appeal under section 374 (2) of CrPC. 2. In brief the case of prosecution is that appellant was a public servant and was serving on the post of Parcel Clerk in Head Post Office, Jabalpur from October, 1992 to July, 1993. It is said that during this period the job of appellant while serving on the post of Parcel Clerk was to receive the VP. parcels and to deliver them. During the said period, appellant received VP. parcel on 27.3.1993 from Kandivali Bombay and which was required to be delivered to Joginder Singh Makan and similarly some parcels were required to be delivered to O.P. Tyagi, B.S. Tamhankar and Vijay Kumar Bambi as well as to VP. Jaggi and M.S.D. Nair. These VP. parcels were delivered to the addressees after receiving its value. According to the prosecution, in between the period 5.10.1992 to 15.3.1993 the v. P. P. list was prepared by appellant and he made necessary endorsement about receiving of the VP. parcels and hence he had received an amount of Rs.42,642/- which is the value of the parcels as well as commission Rs. 2235/-. But, he did not deposit this amount in the office and has misappropriated it. 3. After the investigation was over and having received the necessary sanction to launch prosecution against the appellant, a charge sheet was submitted before the learned Special Judge. 4. The learned Special Judge on the basis of allegations made in the charge sheet framed charges punishable under section 409 of IPC and 13 (1) (c) read with section 13 (2) of the Act which the appellant denied and requested for the trial. 5. In order to prove the charges the prosecution examined as many as 12 witnesses and placed Ex. P-1 to P-37 the documents on record. The defence of appellant is that he never misappropriated the money and he has been falsely implicated. 5. In order to prove the charges the prosecution examined as many as 12 witnesses and placed Ex. P-1 to P-37 the documents on record. The defence of appellant is that he never misappropriated the money and he has been falsely implicated. In support of his defence, he examined K.D.Meshram (DW 1). The learned Special Judge on the basis of evidence placed on record came to hold that the charges are proved against appellant as a result of which convicted him and passed the sentences mentioned in the impugned judgment. 6. In this manner the present appeal has been filed by appellant assailing his judgment of conviction and order of sentence. 7. It has been argued by Shri Arvind Shrivastava, learned counsel for appellant that the prosecution has utterly failed to adduce any cogent evidence in order to prove that appellant has misappropriated the money of the Y.P. parcels and did not deposit the same. According to him, the persons who had sent the Y.P. parcels could have been the best witnesses in order to prove that they have not received the value of the parcels which they sent to the addressees. Apart from this, it has also been put forth by learned counsel that the prosecution was duty bound to adduce the evidence that the amount of Y.P.P. was not deposited by the appellant and in absence of any evidence in this regard it cannot be said that the charges are proved. By placing reliance on decision of Supreme Court Dr. S.L. Goswami v. The State of M.P., AIR 1972 SC 716 , it has been submitted that the burden of proof was on the prosecution to prove the charges and since the prosecution has failed to discharge its burden by adducing cogent evidence, therefore, the conviction which has been accorded is based on no evidence. By placing heavy reliance on the decision of Supreme Court Janeshwar Das Aggrawal v. Stale of u.p, 1981 SCC (Cri) 616, it has been argued that mere entrustment would not constitute an offence under section 409 of IPC unless and until it is proved that the mony has been misappropriated by the accused. 8. By placing heavy reliance on the decision of Supreme Court Janeshwar Das Aggrawal v. Stale of u.p, 1981 SCC (Cri) 616, it has been argued that mere entrustment would not constitute an offence under section 409 of IPC unless and until it is proved that the mony has been misappropriated by the accused. 8. On the other hand Shri J ayant Neekhra, learned counsel for respondent/CBI argued in support of the impugned judgment and has submitted that the learned Special Judge has assigned cogent reasons in convicting the appellant and therefore there is no merit in this appeal and the same be dismissed. 9. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 10. The Supreme Court in Janeshwar Das Aggarwal (supra) has laid down the law of land that before conviction under section 409 of IPC can be recorded, the prosecution must prove two essential ingredients they are: (i) the factum of entrustment; and (ii) the factum of misappropriation of entrusted articles. The Supreme Court further held that even if it be assumed that entrustment was proved, in absence of any evidence to show either direct or circumstantial that accused has misappropriated the article, the conviction cannot be accorded under section 409 of IPC and the conviction which was accorded was set aside. 11. By testing the aforesaid principles as stated by the apex Court we shall examine the evidence which has been placed by the prosecution. Joginder Singh Makan (PW 1), a.p. Tyagi (PW 2), B.S. Tamhanker (PW 3), Vijay Kumar Bambi (PW 4), Y.P. Jaggi (PW 7) and M.H.D. Nair (PW 8) are the witnesses to whom the Y.P. parcels were delivered. Thus from the evidence of these witnesses, it is proved that the Y.P. parcels were delivered to them. However, these witnesses have not at all stated that in fact appellant was the person who had handed over these parcels to them. 12. The question would now arise as to whether the value of these parcels were sent to the consignors who had sent these parcels to the respective consignees. According to us, the best evidence to prove this fact would have been the consignors who sent those parcels to the above said witnesses (addressees-consignees). 12. The question would now arise as to whether the value of these parcels were sent to the consignors who had sent these parcels to the respective consignees. According to us, the best evidence to prove this fact would have been the consignors who sent those parcels to the above said witnesses (addressees-consignees). If those witnesses (consignors) would have been examined it could have been ascertained, in order to take out the grain from the chaff, that whether they had received the amount of the Y.P. parcel or not. According to us, in absence of examining these witnesses, it cannot be said that these persons have not received the amount ofY.P. parcel which they sent to the consignees. To prove the misappropriation, positive evidence, which was available to the prosecution, should have been adduced so as to prove that appellant misappropriated the money of Y.P. parcels by not depositing the said amount in the Accounts section and the persons (consignors) who sent the Y.P. parcels did not receive the said amount. There is no material on record in order to ascertain that consignors made any complaint that they have not received the value of the parcels which they had sent to the consignees. Thus, the factum of misappropriation of amount of Rs. 42,642/- towards value of the parcels and Rs. 2,235/- towards the commission by the appellant has not at all been proved. Hence, in view of the decision of Supreme Court Janeshwar Das Aggarwal (supra) that mere entrustment of the Y.P. parcel would not suffice in absence of any positive evidence of the prosecution that the said amount has been misappropriated by the appellant since it has not been received by the persons concerned. Needless to emphasize burden of proof was on the prosecution and in this regard we may place reliance on the dictum of Supreme Court in Dr. S.L. Goswami (supra). 13. In absence of any evidence in regard to misappropriation of the evidence direct or in the indirect manner it cannot be held that the appellant has misappropriated any amount and therefore according to us charge under section 409 of IPC is not at all proved. The appellant is acquitted from the said charge. 14. S.L. Goswami (supra). 13. In absence of any evidence in regard to misappropriation of the evidence direct or in the indirect manner it cannot be held that the appellant has misappropriated any amount and therefore according to us charge under section 409 of IPC is not at all proved. The appellant is acquitted from the said charge. 14. Since appellant has been acquitted from the charge under section 409 of IPC, he cannot be convicted for the charges under sections 13 (1) (c) read with section 13 (2) of the Act since it is having nexus with section 409 of IPC. The appellant is also acquitted from these charges. 15. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by learned trial Court is hereby set aside and appellant is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.