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Madhya Pradesh High Court · body

2015 DIGILAW 171 (MP)

Harish v. State of M. P.

2015-02-09

ALOK VERMA

body2015
ORDER 1. This revision arises out of order passed by the learned XIII Additional Sessions Judge, Indore in S.T.No.180/2011 dated 13.4.2011 whereby learned Additional Sessions Judge framed charge under section 409 of IPC. 2. The facts of this case are that a report was lodged by Municipal Corporation, Indore in Police Station M.G. Road, Indore by letter dated 28.9.2010 wherein it was mentioned that the account section of the Corporation conducted an enquiry and found that in all 7 cheques, total amount of Rs.5,05,495/- were drawn by Rajendra Jaishankar Dubey (2 cheques bearing registration No.302988 and 302990) and Bhupendra Singh s/o Vijaypal Singh Verma (5 cheques bearing registrations No.591310, 591317, 591325, 591327 and 591330). The amount of the cheque was intended to be deposited in the account holders of property tax and water tax. It is stated that the present applicants were working as Bill Collector at the relevant time. It is alleged that they received the aforementioned cheques and issued receipt for the same. However, the cheques were not presented before the Bank for collection and no amount was credited in the account of Commissioner, Municipal Corporation, Indore. 3. Assuming that the amount was misappropriated by the present applicants, FIR was lodged against them whereupon Crime No.435/2010 was registered by Police Station M.G. Road, Indore under section 409/34 of IPC. On perusal of the FIR following important facts were alleged :- (i) that cheques were drawn by two persons who were not actually account holders of property tax and water tax; (ii) when given a notice, the actual account holders in whose account the amount was to be credited excepting the one appeared before the Municipal Corporation and did not claimed any amount against the property tax or water tax. (iii) the cheques were never presented before any Bank for encashment and no amount was deposited in the account of Commissioner, Municipal Corporation, Indore. 4. From these facts it appear that though it appears strange that only two persons issued 7 cheques, in respect of amount of which credit was to be given to various account holders for property tax and water tax. Such amount was not deposited in the account of Commissioner, Municipal Corporation, Indore in whose favour the cheques were made payable and neither in the account of present applicants. 5. Such amount was not deposited in the account of Commissioner, Municipal Corporation, Indore in whose favour the cheques were made payable and neither in the account of present applicants. 5. To constitute an offence under section 409 of IPC which pertains to criminal breach of trust by public servant that means a person committing criminal misappropriation of property as defined under section 403 of IPC and criminal breach of trust as defined in section 405 of IPC. These two sections may be reproduced below :- “403. Dishonest misappropriation of property.—Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation 1. - ................. Explanation 2. - .................. 405. Criminal breach of trust.—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 willfully suffers any other person so to do, commits “criminal breach of trust”. Explanation 1. - ................. Explanation 2. - ..................” 6. In both these sections, common words “dishonestly misappropriates or converts to his own use” are used. In this case, the amount of cheques were not credited in the account of present applicants and therefore, there is no question of converting the property to their own use for dishonest misappropriation. However, what is necessary is causing unlawful gain to one person and unlawful loss to another person. Unlawful loss means causing loss to a person to which he is legally entitled. In this case, the Municipal Corporation is put to unlawful loss, as the Corporation was entitled to the amount of property tax and water tax. Similarly, there is unlawful gain to person who has drawn the cheque in favour of the Commissioner, Municipal Corporation because the amount remained in their account. 7. The defence of the present applicants are that they were only bill Collectors and they received the cheques and handed over them to the Accounts department for their deposition in the Bank. Similarly, there is unlawful gain to person who has drawn the cheque in favour of the Commissioner, Municipal Corporation because the amount remained in their account. 7. The defence of the present applicants are that they were only bill Collectors and they received the cheques and handed over them to the Accounts department for their deposition in the Bank. However, the fact whether they handed over the cheques in dispute to Account department for their onward submission to Bank has to be proved before the trial Judge and if it is proved that they have handed over the cheques to the person, who is responsible for deposition of cheque to the Bank, then no offence is made out against them. If they fail to prove this fact before the trial Judge, then they are liable for dishonest misappropriation and as such liable for criminal breach of trust under section 409 of IPC, as they were working as public servant of the Municipal Corporation. In this view of the matter this revision has no force and is liable to be dismissed and dismissed accordingly. Nilesh Dave for applicants; R. S. Parmar for respondent/State.