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2021 DIGILAW 81 (JK)

State of J&K v. Javaid Najeeb ud Din

2021-03-16

SANJAY DHAR

body2021
JUDGMENT : 1. The instant appeal is directed against the judgment dated 18.11.2015 passed by learned Special Judge, Anti-corruption, Kashmir, Srinagar, whereby the respondents herein have been acquitted of the charges for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC. 2. Before coming to the grounds of appeal, let me give a brief background of the facts leading to the filing of the instant appeal. 3. FIR No.72/1997 for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC came to be registered with Police Station Vigilance Organization, Kashmir, and investigation of the case was set into motion. After investigation of the case, a charge sheet came to be filed against the respondents herein by the prosecuting agency i.e. appellant herein. 4. As per the contents of the charge sheet, the accused/respondent No.1 during his posting as Assistant Director, Information, Leh, entered into a criminal conspiracy with accused/respondent No.2, where-under a Panasonic fax machine was purchased for an amount of Rs.62,000/- and a Canon Xerox machine was purchased for an amount of Rs.1,25,000/- by accused/respondent No.1 for the office use from accused/respondent No.2. According to the prosecution case, the accused/respondent No.1 paid only a sum of Rs.1,25,000/- to the accused/respondent No.2 which constituted Rs.13,000/- over and above the market price of both machines taken together as were supplied by him. It was further alleged that the accused/respondent No.1 retained an amount of Rs.62,000/- with himself and misappropriated the same. The prosecution further alleged that the aforesaid purchases were made without following the codal formalities and/or seeking administrative approval from the competent authority. 5. It is alleged that the aforesaid lapses came to the notice of the Auditors of the Accountant General’s office and the same was brought to the notice of the Commissioner/Secretary to the Government, Information Department in terms of communication No.OAD/EAP/ 1212-15 dated 09.12.1996. An enquiry was conducted by District Treasury Officer, Leh, who submitted his report and on the basis of the said report, the Director, Information, referred the matter to Vigilance Commissioner, where-after a case came to be registered, investigation was conducted and finally challan was laid before the trial court. 6. The accused/respondents were charged for offences under Section 5(2) of PC Act, 120-B and 409 RPC. The accused denied the charges and claimed to be tried. 6. The accused/respondents were charged for offences under Section 5(2) of PC Act, 120-B and 409 RPC. The accused denied the charges and claimed to be tried. The prosecution examined as many as twenty-three witnesses to prove the charges against the accused/ respondents whereas accused/respondents examined one witness in defence. The statements of the accused/respondents under Section 342 Cr. P. C were recorded by the learned trial court wherein the accused, besides claiming that there was no admissible evidence against them, contended that the case against them is absolutely false and frivolous. 7. The learned trial court, after discussing the evidence on record, came to the conclusion that the charges against the accused/respondents are not established and, accordingly, they have been acquitted of the charges in terms of the impugned judgment. 8. The appellant-State has assailed the impugned judgment of the learned trial court on the grounds that the evidence has not been appreciated properly by the learned trial court; that the learned trial court has failed to appreciate the fact that the prosecution had been able to prove that the quotations invited by accused/respondent No.1 were fake; that the learned trial court has failed to appreciate that once the entrustment of money to accused/respondent No.1 was established, it was not for the prosecution to prove the precise mode of its misappropriation by the said accused but it was for the accused to account for the same and that the impugned judgment is against the facts and the law. 9. I have heard learned counsel for the parties and I have also gone through the grounds of challenge, the impugned judgment and the record of the trial court. 10. As per the charge framed by the learned trial court against the accused/respondents vide its order dated 07.04.2003, the accused/respondent \No.1, in his capacity as Assistant Director, Information, Leh, is alleged to have purchased a Canon Photostat machine and a Panasonic fax machine for an amount of Rs. 1,25,000/- and Rs.60,000/- respectively from accused/respondent No.2 whereas the actual market rate of these articles taken together was Rs.1,12,000/-. The charge goes on to allege that the accused/respondent No.1 paid an amount of Rs.1,25,000/- to accused/respondent No.2 though he was entitled to receive only an amount of Rs.1,12,000/- for both the machines and he retained an amount of Rs.62,000/- with him thereby defrauding the State exchequer. The charge goes on to allege that the accused/respondent No.1 paid an amount of Rs.1,25,000/- to accused/respondent No.2 though he was entitled to receive only an amount of Rs.1,12,000/- for both the machines and he retained an amount of Rs.62,000/- with him thereby defrauding the State exchequer. The charge against the accused/respondent No.2 is that he had supplied the aforesaid two machines to accused/respondent No.1 for his office use for an amount of Rs.1,25,000/- when the actual cost of both the machines taken together was Rs.1,12,000/- thereby defrauded the State exchequer to the tune of Rs.13,000/- in connivance with accused/respondent No.1. 11. From a perusal of the aforesaid charges, it is clear that the prosecution, in order to bring home the guilt of the accused, was supposed to prove the following points: (1) That the total actual market value of the two machines that were supplied by accused/respondent No.2 to accused/respondent No. 1 was Rs.1,12,000/-. (2) Upon proof of the above, it is to be further established that the accused/respondent No.1 withdrew an amount of Rs.1,25,000/- from the State exchequer and paid it to accused/respondent No.2 as cost of both the machines and apart from this, he withdrew an amount of Rs.62,000/- from the State exchequer and retained it with himself. 12. In order to prove the market rate of the two machines i.e. one Canon Xerox machine and one Panasonic fax machine, the prosecution has examined PW(9), Qazi Hashmat and PW(10), Shabir Ahmad Malik. 13. PW(9), Qazi Hashmat, has stated that his maternal uncle Mir Ghulam Ali used to deal with sale of photocopiers, fax machines, computers, printers etc. but he denied his signatures on letter dated 29.03.2000, which the prosecution had produced in order to prove the actual cost of two machines. 14. So far as PW(10), Shabir Ahmad Malik is concerned, he has stated that he has not been dealing with Canon photocopier and Panasonic fax machines, as the same were manufactured by Japanese companies. He has further stated that he was not aware about the price of these machines. 15. From the above evidence, it is clear that the allegation of the prosecution that the total cost of both the machines, that were purchased by accused/respondent No.1 from accused/respondent No.2, was Rs.1,12,000/- is not substantiated from the evidence on record. He has further stated that he was not aware about the price of these machines. 15. From the above evidence, it is clear that the allegation of the prosecution that the total cost of both the machines, that were purchased by accused/respondent No.1 from accused/respondent No.2, was Rs.1,12,000/- is not substantiated from the evidence on record. Once the prosecution has failed to establish that the two machines were purchased by accused/respondent No.1 at higher rates than their market price, the allegation of the prosecution that the accused/respondents have defrauded or caused loss to the State exchequer falls to the ground. 16. So far as the other contention urged by the learned counsel for the appellant that the quotations that were invited by accused/respondent No.1 in his capacity as Assistant Director, Information, Leh, were fake and that there was no prior approval of the competent authority for making these purchases is concerned, the same is also not borne out from the record. It is correct that one of the alleged tenderers i.e. PW (4) Prana Vuthoo and her two employees PW(5) Avtar Krishan Raina and PW (6) Sunil Bakshi have stated that they had not given any quotation for making supplies at Leh and the photocopy of the letter of K. S. Traders does not pertain to their concern, yet there is no dispute to the fact that two quotations were submitted by accused/respondent No.2 and further DW Virender Paul has also stated that he had submitted the quotation. There is also evidence on record to show that a post facto approval to the purchases was granted by the Deputy Commissioner, Leh i.e. the competent authority in terms of orders dated 27th March and 4th of June, 1996. In the face of this material on record, it can by no stretch of imagination be said that the codal formalities were not followed by accused/respondent No.1 while making purchases which are subject matter of this case. In any event, even it if is assumed that there was any infraction of any codal formality while making these purchases, once it is not shown that the purchases were made at exorbitant rates, the charge of causing loss to the State exchequer does not get established. 17. In any event, even it if is assumed that there was any infraction of any codal formality while making these purchases, once it is not shown that the purchases were made at exorbitant rates, the charge of causing loss to the State exchequer does not get established. 17. The third and last ground which has been vehemently argued by learned counsel for the appellant is that the prosecution had succeeded in establishing that the accused/respondent No.1 had received a sum of Rs.62,000/- from PW(2) Mohammad Bashir Malla, Senior Assistant-cum-Cashier, after the same was drawn from the treasury and, thus, entrustment of the said amount to accused/respondent No.1 has been established and it was for the said accused/respondent to account for the amount. In support of his contention, the learned counsel has relied upon the judgment of the Supreme Court in Jiwan Dass v. State of Haryana, (1992) 2 SCC 530. 18. If we have a look at the statement of PW(2) Mohammad Bashir Malla, he has stated that after making drawl of Rs.62,000/- from the treasury on account of cost of the fax machine, he handed over the said amount to accused/respondent No.1 for payment to the supplier i.e. accused/respondent No.2 whereafter he obtained a receipt from the accused/respondent No.1. The witness also identified the signature of the respondent No. 1 on the said receipt. He has further stated that he has no knowledge about the payment of the said amount which, in other words means that he does not know whether or not the said amount has been paid to the supplier. PW(7) Tashi Phunchok, Assistant Information Officer, Leh, has also confirmed the fact that the Cashier had drawn Rs.62,000/- and handed over the same to accused/respondent No.1. 19. Thus, there is overwhelming evidence on record to show that the accused/respondent No.1 had received an amount of Rs.62,000/- from the Cashier. In his statement recorded under Section 342 Cr.P.C., when this circumstance was put to the said accused, he has stated that there is no evidence against him to show that he had misappropriated the said amount. The question arises whether in the facts and circumstances of the case, with the establishment of the fact that the accused/respondent No.1 had received an amount of Rs.62,000/- from the Cashier, the offence of criminal breach of trust is made out against the said accused. 20. The question arises whether in the facts and circumstances of the case, with the establishment of the fact that the accused/respondent No.1 had received an amount of Rs.62,000/- from the Cashier, the offence of criminal breach of trust is made out against the said accused. 20. In the case cited by the learned counsel for the appellant, the Supreme Court has held that once the delivery of diesel to the accused before the said Court was established and the explanation offered by the said accused could not be accepted, the prosecution case about embezzlement of diesel would stand established beyond reasonable doubt against the said accused. 21. Again, the Supreme Court in the case of Sadhupati Nageswara Rao v. State of A.P, AIR 2012 SC 3242 , has, while discussing the ingredients of offence under Section 409 IPC, observed as under: “In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409 IPC, two ingredients are to be proved: namely, (i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and (ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405IPC. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (i) entrustment and (ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. 22. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (i) entrustment and (ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. 22. From the above, it is clear that in order to prove the offence of criminal breach of trust, the prosecution must prove that one who is, in any manner, entrusted with the property, dishonestly misappropriates the same, meaning thereby that in order to sustain the conviction under Section 409 IPC, two ingredients are to be proved, namely, (i) the accused, a public servant, was entrusted with the property of which he is duty bound to account for; and (ii) the accused has committed criminal breach of trust. Section 405 RPC, which defines the criminal breach of trust, enumerates the basic requirements as (i) entrustment and (ii) dishonest misappropriation or conversion to own use to the detriment of the person who entrusted it. Thus, once the entrustment of the property is proved, it is incumbent upon the accused to account for it in terms of mandate of Section 106 of the Indian Evidence Act. 23. In the light of aforesaid legal position, let us now consider the facts established by the prosecution in this case. There can be no dispute to the fact that the prosecution has established that the accused/respondent No.1 had received a sum of Rs.62,000/- from the Cashier, PW(2). The question arises as to whether in the facts and circumstances of the case, mere proof of receipt of said amount by the accused/respondent No.1 and in the absence of any explanation on his part would entail conviction of the said accused/respondent for offence under Section 409 RPC. 24. It is true that once the entrustment is proved, it is for the accused to account for the same. This proposition is based upon the spirit of the provisions contained in Section 106 of the Evidence Act, which reads as under:- “106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 25. This proposition is based upon the spirit of the provisions contained in Section 106 of the Evidence Act, which reads as under:- “106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 25. So before the burden of accounting for the entrusted money is cast upon an accused, it has to be shown that the fact with regard to the misappropriation or use of money was within the special knowledge of the accused. This will depend upon the facts and circumstances of each case. In the instant case, as has been clearly stated by the Cashier in his statement that the money which he had handed over to the accused/respondent No.1 was meant for the supplier i.e. accused/respondent No.2. This is not a fact which was within the special knowledge of the accused/respondent No.1. The prosecution could have easily proved, by leading evidence, that the accused/respondent No.2 did not receive the said money. Once that was proved, the burden would have shifted to accused/respondent No.1 to account for the money and to show that he had not misappropriated or put the entrusted money to his own use. Unfortunately, the prosecution in this case has not led any evidence to show that the amount in question was not delivered by the accused/respondent No.1 to accused/respondent No.2. In fact, even the Investigation Agency has not assembled any material to show that the money was not tendered by accused No. 1 to accused No. 2. So in the facts and circumstances of the instant case, the prosecution was required not only to prove the entrustment of money to accused/respondent No.1 but it was further incumbent upon them to prove that he had not delivered the same to accused/respondent No.2, the supplier. 26. The Supreme Court in the case of Sardar Singh vs. State of Haryana, AIR 1977 SC 1776, had, in the facts and circumstances of the said case, held that the prosecution has also to prove that the accused dishonestly misappropriated or converted the entrusted property to his own use or dishonestly used or disposed of it. 27. 26. The Supreme Court in the case of Sardar Singh vs. State of Haryana, AIR 1977 SC 1776, had, in the facts and circumstances of the said case, held that the prosecution has also to prove that the accused dishonestly misappropriated or converted the entrusted property to his own use or dishonestly used or disposed of it. 27. From the foregoing discussion, it is clear that conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion. It all depends upon the facts and circumstances of each case. 28. As already noted, in the instant case the background in which the accused/respondent No.1 had received an amount of Rs.62,000/- from the Cashier for its payment to accused/respondent No.2, without any evidence on record to show that the accused/respondent No.2 had not received the said amount, would not be a sufficient circumstance to record a conviction against the accused/respondent No.1. For this reason, the learned trial court was justified in observing that it was duty of the prosecution to adduce positive evidence that the amount was misappropriated by the accused/respondent No.1. 29. For the foregoing discussion, the view taken by the learned trial court in the impugned judgment appears to be plausible in the light of the evidence on record and the findings recorded by the said court do not appear to be manifestly erroneous or contrary to evidence on record. In these circumstances, it is not open to this Court in exercise of its appellate jurisdiction to interfere with the judgment of acquittal recorded by the learned trial court. 30. For the foregoing reasons, I find that there is no merit in this appeal. The judgment of acquittal recorded by the learned trial court is, therefore, upheld and the appeal is dismissed. 31. No order as to costs. 32. The trial court record along with a copy of this judgment be sent back.