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Karnataka High Court · body

2011 DIGILAW 723 (KAR)

Deepak Prasad v. State of Karnataka

2011-07-20

V.JAGANNATHAN

body2011
ORDER V. JAGANNATHAN, J.—This Criminal Revision Petition is by A1 in the trial Court and he calls in question his conviction by the trial Court in respect of the offence punishable under Section 406 of the I.P.C. and being sentenced to undergo one year simple imprisonment and to pay a fine of Rs. 5,000/- and in default to undergo three months rigorous imprisonment and the said judgment of the trial Court being modified by the lower appellate Court into conviction under Section 409 instead of 406 of the I.P.C. A2, however, was acquitted by the trial Court and the same was confirmed by the lower appellate Court. 2. The case of the prosecution, in short, is that one Dr. Anandi Bai Prasad established a trust in the name of Prasad Memorial Medical Centre on 28.11.1978 and she, alongwith her adopted children viz., Dr. Deepak Prasad (the petitioner herein) and Dr. Chitralekha, her husband Dr. Mahesh Kumar, retired District Judge Gopalaiah and one Rangaraju were the trustees. After the death of Anandi Bai. the petitioner herein, i.e., A1. became the President of the trust and Dr.Chitralekha became the Secretary in 1993. 3. Though it was laid down in the Trust Deed that the account of the trust viz., Prasad Memorial Medical Centre, was to be kept in State Bank of Mysore, Mysore, and to be operated jointly by the President and the Secretary, the petitioner herein violated the Trust Deed conditions and misappropriated the trust amount for his own personal benefits and also cheated the trust by opening an account in the name of Prasad Memorial Building Fund and transferred from Prasad Memorial Medical Centre a sum of Rs. 12,06,238/- and later used for his own benefit Rs. 4,03,000/- by drawing amount through cheques and in the process, the petitioner herein, alongwith A2, by violating the Trust rules thus created an account in Account No. 29654 and, even without the signature of the Secretary, this petitioner had transferred the amount to himself and, therefore, the complaint lodged by one of the trustees alleged that the accused persons committed the offence of criminal breach of trust, punishable under Sections 409 read with 109 and 34 of the I.P.C. 4. Following the accused pleading not guilty, the trial Court recorded the evidence of the prosecution witnesses, P.Ws. 1 to 5 and took note of the documents Exs. P1 to P53. Following the accused pleading not guilty, the trial Court recorded the evidence of the prosecution witnesses, P.Ws. 1 to 5 and took note of the documents Exs. P1 to P53. The accused statement was recorded and thereafter, no witness was examined in support of the defence case except marking one document at Ex. R1. 5. The learned trial Judge, after evidence appreciation, found that the petitioner herein had committed the offence punishable under Section 406 of the I.P.C. and accordingly he was convicted and sentenced as aforesaid. A2 was, however, acquitted by the trial Court. 6. A1, who was convicted, preferred an appeal before the lower appellate Court in Crl. A. No. 32/2010 and P.W. 1 also filed an appeal challenging the judgment of the trial Court in Crl. A. No. 49/2010. The learned Judge of the lower appellate Court clubbed both the appeals and, after considering the arguments addressed by both sides, confirmed the acquittal of A2 and A1’s conviction was modified into one under Section 409 instead of 406 of the I.P.C. 7. The present revision petition is, therefore, preferred by A1 and I have heard learned counsel Shri X.M. Joseph for the petitioner and Shri P. Karunakar, learned Government Pleader for the respondent-State and also perused the entire record of this case. 8. The learned counsel for the petitioner, at the outset, argued that the Courts below committed an error in recording a finding that the petitioner is an agent of the trust, but the said finding cannot be sustained in law in view of the provisions contained in Section 409 of the I.P.C. inasmuch as, this Section makes it clear that to be called as an agent, the person concerned will have to follow his business as an agent and, in the instant case, it is not the business of the petitioner to be an agent by profession but, on the other hand, the petitioner was only one of the trustees and that too of a Family Trust. Therefore, Section 409 of the I.P.C. is not attracted and that apart, there was no entrustment of property with the petitioner so as to come within the ambit of Section 409 of the I.P.C. As such, the lower appellate Court was not justified in modifying the conviction from Section 406 to Section 409 of the I.P.C. 9. Therefore, Section 409 of the I.P.C. is not attracted and that apart, there was no entrustment of property with the petitioner so as to come within the ambit of Section 409 of the I.P.C. As such, the lower appellate Court was not justified in modifying the conviction from Section 406 to Section 409 of the I.P.C. 9. As far as the conviction under Section 406 of the I.P.C. is concerned, it is argued by the learned counsel for the petitioner that the Trust Deed itself provides for the account being operated by one person and, therefore, the petitioner had not committed violation of any of the trust conditions. It is then argued by him that P.W. 2 Chitralekha was fully aware of the account being opened in the name of Prasad Memorial Building Fund and, therefore, the petitioner had not committed any offence so as to attract Section 406 of the I.P.C. Moreover, it is his contention that already there was an account in the name of Prasad Memorial Building Fund in the main branch of the S.B M. and, for the sake of convenience, another account was opened by the petitioner. The learned counsel also referred to the letter addressed by the Chief Manager of the S.B.M. dated 25.5.1996 (Ex. P21) to contend that the Secretary viz., Dr. Chitralekha, was also aware of the amount being transferred to the Prasad Memorial Building Fund Account. Therefore, it is contended that the Courts below did not appreciate all these material in proper perspective. 10. Yet another submission made by the learned counsel for the petitioner is that Ex. P5 is a letter written jointly by the petitioner and A2 to the Manager, S.B.M., on 27.1.1995 wherein it is stated that the fixed deposit accounts which have matured on 25.1.1995 and26.1.1995 be renewed for a further of twelve months in the name of the Chairman, Prasad Memorial Building Fund, Mysore. In view of this document, it is clear that both A1 and A2 made a request to the bank to renew the F.D. accounts in the name of the Chairman of the Prasad Memorial Building Fund and, as such, the Courts below have not considered the said document Ex. P5 also. 11. Another document to which reference was made by the learned counsel for the petitioner is Ex. P12 to contend that the F.Ds. P5 also. 11. Another document to which reference was made by the learned counsel for the petitioner is Ex. P12 to contend that the F.Ds. which have matured on 19.4.1996 were renewed for six more months to be kept in the main branch of S.B.M., at Ashoka Road, Mysore. 12. In the face of all these documents, the learned counsel for the petitioner argued that the judgment of conviction and sentence passed cannot be sustained in law and the petitioner, therefore, be acquitted. 13. On the other hand, the submission of the learned Government Pleader for the respondent-State is that both the Courts below have carefully considered the entire evidence on record and have found that there was clinching evidence by way of documents to establish the charge of criminal breach of trust against the petitioner. In this connection, the learned Government Pleader referred to the two cheques, Exs. P40 and P41, which were for Rs. 1,15,000/- and Rs. 1,50,000/- respectively and these two cheques are drawn by the petitioner herein as Chairman for Prasad Memorial Building Fund and the cheques having been encashed, renewal of the F.D. in the name of the Chairman, Prasad Memorial Building Fund, was effected only on 4.3.1996 and the documents which have been marked viz., Exs. P43 to P46, are the F.D. receipts and the amounts which have been kept in deposit under these F.D.Rs. are Rs. 38,000/ (Ex. P43), Rs. 1,00,0.00/- (Ex. P44), Rs. 1,50,000/- (Ex. P45) and Rs. 1,15,000/- (Ex. P46), totalling Rs. 4,03,000/-. Thus, it is argued by the learned Government Pleader that by reading together Exs. P40 and P41 which were of the year 1995 and the investments made in F.D.Rs. on 4.3.1996 in respect of Exs. P43 to P46, it is just established that between the period from 27/28.1.1995 and 4.3.1996, i.e., for more than a year, the amounts were utilized by the petitioner and it was only by way of mail transfer advice as per Ex. P42, that an amount of Rs. 4,07,968/- was credited to the account of the Chairman, Prasad Memorial Medical Centre on 23.4.1996. 14. Thus, a careful reading of these documentary evidence would go to establish that this petitioner had misappropriated the amount for his own use and later on, realizing his mistake, kept them in F.D. that too after one year. P42, that an amount of Rs. 4,07,968/- was credited to the account of the Chairman, Prasad Memorial Medical Centre on 23.4.1996. 14. Thus, a careful reading of these documentary evidence would go to establish that this petitioner had misappropriated the amount for his own use and later on, realizing his mistake, kept them in F.D. that too after one year. Apart from this, the learned Government Pleader also referred to the evidence of P. W. 1 to contend that the account was to be operated jointly by the petitioner and A2, and as far as the contents of the document viz., Ex. P5, are concerned, the learned Government Pleader drew my attention to the evidence of P.W. 2 Chitralekha to contend that the last portion in Ex. P5 was not there when P.W. 2 signed it. Thus, the over all evidence on record, therefore, gave no room to doubt the prosecution case against the petitioner. Hence, the judgment of conviction passed against the petitioner be confirmed. 15. Having thus heard both sides and after carefully going through the entire material on record and the reasoning given by the Courts below, in my view, the contentions put forward by the learned counsel for the petitioner insofar as the offence of criminal breach of trust being not made out, cannot be accepted for the following reasons. 16. First of all, the evidence on record does not give any scope to doubt the position of the petitioner herein as one of the trustees of Prasad Memorial Medical Centre. The cheques Exs. P40 and P41 reveal that they were signed by this petitioner alone as Chairman of Prasad Memonal Building Fund and these two cheques are dated 28.1.1995 and 27.1.1995. The petitioner again got four F.D. accounts renewed in the name of Chairman, Prasad Memorial Building Fund through F.D. receipts Exs. P43 to P46 and the total amount of these four F.D.Rs. is Rs. 4,03,000/- and thus, the F.D. accounts being renewed on 4.3.1996 in the name of the Chairman, Prasad Memorial Building Fund, is established through these four F.D.Rs., Exs. P43 to P46. 17. Again as per Ex. P42, which is mail transfer advice, amount of Rs. 4,07,958/- was credited to the account of the Chairman, Prasad Memorial Medical Centre, on 23.4.1996. It is, therefore, clear that the petitioner withdrew the amounts under Exs. P43 to P46. 17. Again as per Ex. P42, which is mail transfer advice, amount of Rs. 4,07,958/- was credited to the account of the Chairman, Prasad Memorial Medical Centre, on 23.4.1996. It is, therefore, clear that the petitioner withdrew the amounts under Exs. P40 and P41, but later on, after more than a year, the amounts in those two cheques came to be invested in F.D.R. on 4.3.1996 as per Exs. P45 and P46. In between the said period, there is no record to show that soon after the receipt of the amount under the two cheques Exs. P40 and P41, the petitioner had invested the said amount on the very same day in the name of Prasad Memorial Medical Centre or for that matter, in the name of Prasad Memorial Building Fund account, in the main branch of S.B.M. 18. As far as Ex. P5 is concerned, the evidence of P.W. 2 is to the effect that the last two sentences in the said Ex. P5 viz., “in the name of Chairman, Prasad Memorial Building Fund, Mysore” were not there when P.W. 2 signed Ex. P5. Even otherwise, the said Ex. P5 speaks of only two F.D.Rs, one is for Rs. 50,000/- and the other is for Rs. 1,00,000/- and the dates of the two F.D.Rs. are 25.1.1994 and 27.1.1994 and Ex. P5 itself is dated 27.1.1995. 19. Thus, the contention of the learned counsel for the petitioner that the account could be operated by only one person cannot be accepted insofar as the account opened in the name of Prasad Memorial Building Fund is concerned. Ex. P1, which is the deed of trust, only speak of the funds of Prasad Memorial Medical Centre to be operated upon by the Chairman or such other person as may be authorized by a resolution of the Board. The said trust deed does not speak of the procedure to be followed in respect of operating the account of the Prasad Memorial Building Fund. 20. Thus, a careful examination of the oral and the documentary evidence placed on record gives rise to hold that the prosecution had established the offence of criminal breach of trust being committed by the petitioner. 21. The next question that requires to be considered is whether the offence under Section 409 of the I.P.C. is made out or not. 20. Thus, a careful examination of the oral and the documentary evidence placed on record gives rise to hold that the prosecution had established the offence of criminal breach of trust being committed by the petitioner. 21. The next question that requires to be considered is whether the offence under Section 409 of the I.P.C. is made out or not. The Court below has proceeded on the footing that the petitioner is an agent of the trust. But, Section 409 speaks of an agent in the sense of a person carrying on the business as an agent, whereas, in the instant case, the petitioner is not carrying on the business of an agent, but even as per the prosecution version, he is one of the trustees of Prasad Memorial Medical Centre. Therefore, Section 409 of the I.P.C. cannot be said to have been attracted to the instant case. 22. However, Section 406 of the I.P.C. gets attracted because, the necessary ingredients of Section 406 are satisfied in the instant case. As per the Trust Deed Ex. P1, it was the Chairman who had the power to operate the account and the petitioner became the Chairman after the death of the Founder Chairman. Therefore, the accounts of Prasad Memorial Medical Centre were being operated by the petitioner in his capacity as the Chairman and even the board resolution Ex. P2 mentions that the accounts of the trust in S.B.M. shall be operated by the joint signatures of the Chairman, i.e., the petitioner herein, and Secretary Dr. Chitralekha. However, Exs. P40 and P41 reveal that it was the petitioner alone who had withdrawn the amounts. 23. Thus, one of the essential conditions of the offence of criminal breach of trust has been proved viz., accounts being entrusted with the petitioner as Chairman and P.W. 2 as Secretary and the petitioner alone withdrawing the amount under the two cheques Exs. P40 and P41 and later on, creating the F.D.Rs. again in the name of Prasad Memorial Medical Fund. It is, therefore, clear that the petitioner, being entrusted with the responsibility of operating the accounts of the trust, withdrew the amount by signing the cheques all by himself and, therefore, the ingredients of Section 406 of the I.P.C. get attracted. P40 and P41 and later on, creating the F.D.Rs. again in the name of Prasad Memorial Medical Fund. It is, therefore, clear that the petitioner, being entrusted with the responsibility of operating the accounts of the trust, withdrew the amount by signing the cheques all by himself and, therefore, the ingredients of Section 406 of the I.P.C. get attracted. The learned trial Judge has rightly convicted the petitioner under Section 406 of the I.P.C. and the lower appellate Court committed an error in wrongly modifying the conviction to one under Section 409 of the I.P.C. 24. For the aforesaid reasons, the revision petition filed is liable to be rejected and the judgment of the trial Court has to be restored by setting aside the conviction of the petitioner under Section 409 of the I.P.C. by the lower appellate Court. 25. As far as the sentence is concerned, the learned counsel for the petitioner submitted that the sentence of fine be imposed and moreover, the entire case is of civil nature and between the family members. On the other hand, the submission of the learned Government Pleader is that the trial Court has imposed proper sentence and moreover, if the conviction had been under Section 409 of the I.P.C, the punishment would have been much more severe and, as such, the sentence imposed does not call for any interference. 26. Having thus heard both sides and taking note of the facts and circumstances of this case and the case itself is of the year 1997 and more than thirteen years having elapsed, taking all these factors into account and the entire incident also involving the family members inter se, in my view, the sentence of imprisonment imposed by the trial Court can be reduced to six months simple imprisonment and the fine amount can be increased to Rs. 25,000/-. 27. In the result, the judgment of the trial Court convicting the petitioner under Section 406 of the I.P.C. is sustained and that of the lower appellate Court in convicting the petitioner under Section 409 of the I.P.C. is set aside. The petitioner is sentenced to undergo S.I. for six months and also to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo further S.I. for two months. The petitioner is sentenced to undergo S.I. for six months and also to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo further S.I. for two months. The petition is allowed in part to the extent of the sentence imposed by the trial Court being reduced. 28. The petitioner shall forthwith surrender before the trial Court to undergo the sentence now imposed upon him and he is entitled to set off under Section 428 of the Cr.P.C. The trial Court shall also take necessary steps to secure the presence of the petitioner for him to undergo the sentence.