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Madhya Pradesh High Court · body

2021 DIGILAW 243 (MP)

Prakashchand v. State of MP

2021-02-25

RAJEEV KUMAR SHRIVASTAVA

body2021
ORDER : Rajeev Kumar Shrivastava, J. 1. This order will govern the final disposal of Criminal Revision No. 856/2017 and Criminal Revision No. 874/2017 as both the petitions arise out of common judgment. The facts necessary for adjudication of this matter are taken from Criminal Revision No. 856/2017. 2. This petition under Section 397/401 of Cr.P.C. has been preferred by the petitioner challenging the judgment dated 22.08.2017 passed by Second Additional Sessions Judge, Karera District Shivpuri in Criminal Appeal No. 115/2017 whereby confirming the judgment dated 18.02.2017 passed by Judicial Magistrate First Class, Karera in S.T. No. 602/2007 wherein the Court below has convicted the petitioner for the offence under section 409 of IPC and sentenced to three years RI with fine of Rs. 2000/- with default stipulation. 3. Prosecution story, in short, is that Chief Executive Officer, Janpad Panchayat, Narwar, District Shivpuri made a complaint to the Police Station alleging that during the period when the present petitioner was posted as Secretary and revisionist Babu Singh was posted as Sarpanch in the financial year 2005-06 & 2006-07 has withdrawn and amount of Rs. 7,32,495/- for construction and they failed to do the construction and used the money for their personal purpose. Accordingly, FIR was lodged for the offence punishable under section 409 of IPC. 4. After completion of investigation, challan has been filed and charges were framed. The trial Court vide judgment dated 18.2.2017 convicted the petitioner for the offence punishable under section 409 of IPC and sentenced for three years RI with fine of Rs. 2000/-. Against the said judgment, the petitioner preferred Criminal Appeal No. 115/2017 which was dismissed vide judgment dated 22.08.2017 by affirming the judgment passed by the trial Court. Being aggrieved by the impugned judgment, this Criminal Revision has been filed for setting aside the impugned judgment. 5. Learned counsel for the petitioner contended that no case is made out against the petitioners as the alleged amount was not completely withdrawn by the petitioners rather prosecution has failed to prove that the amount withdrawn was misappropriated by the petitioners. As it is the version of the prosecution that the work done was not evaluated as the hand pump as well as the cleaning area were filled with water and the case is registered under section 409 of IPC, therefore, considering the criminal jurisprudence, burden of proof cannot be shifted towards the petitioners/accused. As it is the version of the prosecution that the work done was not evaluated as the hand pump as well as the cleaning area were filled with water and the case is registered under section 409 of IPC, therefore, considering the criminal jurisprudence, burden of proof cannot be shifted towards the petitioners/accused. Hence prayed for allowing the petitions by setting aside the impugned judgments passed by both the courts below. 6. In support of his arguments, learned counsel for the petitioner placed reliance on the judgment passed by the Hon. the Apex Court in Kailash Kumar Sanwata Vs. State of Bihar and Another reported in (2003) 7 SCC 399 , which reads as under:- "9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons, who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which could generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 10. In the instant case even if it was proved as contended by the learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly mis appropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of the prosecution that money which was given to the accused Gautam Bose and the cash peon to obtain bank drafts was taken away by accused Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else, the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. Because of an intervening situation, the disappearance of the cash due to theft by somebody else, the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless mis appropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that the accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy." 7. Per contra, learned counsel for the State vehemently opposed the arguments and has submitted that the case is based on documentary evidence which reflects that the amount withdrawn has been misappropriated by the present revisionist. Furthermore, the prosecution has proved its case beyond doubt as all the relevant documents show that misappropriation of fund has been done in the interest of the revisionist thereby the revisionist has misappropriated the Government fund and the revisionist is beneficiary in the present case, therefore, section 409 of IPC is very well proved against the petitioner. It is also submitted that in para 26 of the judgment of trial Court, the revisionist has specifically admitted that he had withdrawn Rs. 7,32,495/-. Hence prayed for dismissal of the revision petition. 8. On perusal of the record, it is apparent that as per prosecution story, a total amount of Rs. 7,32,495/- has been withdrawn from the bank by the Revisionist. But, in para 7 of the judgment, it is found that Harishankar (PW-6) on behalf of the Bank has specifically stated that only an amount of Rs. 3,17,800/- has been withdrawn by the petitioners. As per para 7 of the judgment, it is also apparent that in ExP-4, it is admitted position that work of Rs. But, in para 7 of the judgment, it is found that Harishankar (PW-6) on behalf of the Bank has specifically stated that only an amount of Rs. 3,17,800/- has been withdrawn by the petitioners. As per para 7 of the judgment, it is also apparent that in ExP-4, it is admitted position that work of Rs. 3,69,974/- has been done by the revisionist, but for the remaining amount no work has been done and in ExP-4, S.R. Verma (PW-3) has stated that ^^uy&ty ;kstuk ejEer dk;Z] gs.MiEi xM~Mk Hkjko dk;Z^^ was required to be inspected by the PHE department and remaining amount was required to be given to the revisionist for Indira Awas Yojana, but the relevant evidence could not be produced before the trial Court. In para 6 (ExP-3) of the trial court's judgment, it is apparent that for the work done for hand pump cleaning, evaluation could not be possible because it was filled with water. That is, as per prosecution story, a total amount of Rs. 7,32,495/- has been withdrawn by the petitioners, but in the statement recorded of Harishankar (PW-6) on behalf of the Bank, he has stated that only an amount of Rs. 3,17,800/- has been withdrawn by the petitioners from the Bank. It is undisputed that the work was done for Rs. 3,69,974/- and for the remaining amount of Rs. 3,62,521/- some work was done by the Panchayat, for which evaluation could not be done. Accordingly, the alleged misappropriation of amount come to Rs. 34,721/-. In para 28 of the trial Court's judgment, the burden of proof of the aforesaid amount not misappropriated by the revisionist has been shifted to the accused persons, that is against the criminal jurisprudence. According to Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established, accused persons cannot be convicted under Section 409 IPC. 9. The basic principle of criminal jurisprudence is that prosecution has to prove its case beyond reasonable doubt. But in the present case prosecution has failed to prove its case beyond reasonable doubt, therefore, benefit of doubt is given to the petitioners. Consequently, both the criminal revisions are allowed. The impugned judgments passed by both the Courts below are hereby set aside and the petitioners are acquitted from all the charges framed against them. With above, both the criminal revisions stand disposed of.