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2024 DIGILAW 2086 (GUJ)

State Of Gujarat v. Kavadiya Sureshkumar Bhogilal

2024-11-27

HEMANT M.PRACHCHHAK

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JUDGMENT : (HEMANT M. PRACHCHHAK, J.) (1) The appellant - State of Gujarat has preferred this appeal under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order dated 11.10.2006 passed by the learned Presiding Officer, Fast Track Court, Sabarkantha at Himmatnagar (hereinafter be referred to as “the first Appellate Court”) in Criminal Appeal No.1 of 1997, whereby the learned Additional Sessions Judge has acquitted the accused from the offences punishable under Sections 408, 114 of the Indian Penal Code (hereinafter be referred to as “the IPC”) and quashed and set aside the judgment and order dated 21.12.1996 passed by the learned Chief Judicial Magistrate, Himmatnagar (hereinafter be referred to as “the trial Court”) whereby the learned Magistrate has order to undergo rigorous imprisonment for three years and imposed fine of Rs.5,000/- and in default of making payment, to undergo rigorous imprisonment for three months for the offence under Section 408 of the IPC. (2) Brief facts of the present case are, in nutshell, as under:- (2.1) It is case of the prosecution that on 16.07.1987, inspite of the fact that no sale of wheat coupon to the extent of 12000 kilogram have been taken place, the Manager of the Mandali has shown sell of wheat coupon of 12000 kilogram at the rate of Rs.1.50 paise in his account and thereby he created false entry of Rs.18,000/-. It is alleged that the activity of purchase and sale of goods articles was carried out by the Manager and the Clerk of the Mandali and, therefore, both accused are responsible for aforesaid illegality. It is further case of the prosecution that on 30.09.1988 closing stock of the Mandali was verified and during verification, the following shortage of stock was found. Sr.No Name Quantity Rate Rs. Value Rs. It is further case of the prosecution that on 30.09.1988 closing stock of the Mandali was verified and during verification, the following shortage of stock was found. Sr.No Name Quantity Rate Rs. Value Rs. 1 Fertilizer DAP 10 bags 179.25 1792.50 2 H. Adad Seeds.9 34 kilogram 8.75 297.50 3 Bhinda vegetable seeds 4 kilogram 3.00 137.99 4 Rice FFA 965.500 1.50 1448.65 5 Wheat 3090.500 1.30 4017.65 6 Wheat - coupon 12000 kilogram 1.50 18000.00 25691.25 (2.2) It is also the case of the prosecution that out of said illegality, the Manager and the Clerk both are jointly responsible for illegality committed at Sr.No.6 in wheat coupon of 12000 kilogram, whereas, the stock at Sr.No.1 to 5 is in the possession of accused No.2 and, therefore, he is sole responsible for shortage of particular stock of Rs.7,691.90 paise. Thus, the goods at Sr.No.1 to 5 have been sold away by accused No.2 without preparing bills directly in open market and value of said goods have been utilized by him for his personal use and thereby committed misappropriation of money. (2.3) It is also the case of the prosecution that on 03.09.1988, Manager was informed to produce cash on hand of Rs.8,273.97 paise for the purpose of audit, but he did not produce and utilized the said amount for their personal use and thereby committed an offence under Section 408 r/w. Section 114 of the IPC. (2.4) On the basis of the complaint, the Trial Court issued summons upon the accused and on the basis of the same, the concerned police has lodged the complaint and offence was registered as being C.R.No.I-35 of 1999 with Meghraj Police Station for the offences punishable under Sections 408 and 114 of the IPC against the accused. (2.5) Pursuant to the aforesaid FIR, the police collected the evidence and arrested the accused and having got sufficient evidence, filed the charge-sheet against the accused before the trial Court. (2.6) The charge against the accused came to be framed by the trial Court on 07.10.1991 vide Exhibit 28 for the aforesaid offences. On being explained it to them, the accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the trial Court. (2.6) The charge against the accused came to be framed by the trial Court on 07.10.1991 vide Exhibit 28 for the aforesaid offences. On being explained it to them, the accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the trial Court. As such, the trial was conducted by the trial Court wherein three witnesses have been examined and necessary documentary evidence has been produced in the matter. After perusing the same, the trial Court has recorded further statements of the accused under section 313 of the Criminal Procedure Code wherein they have also pleaded that they are innocent and have not committed any offence. (2.7) After perusing the evidence on record and hearing of both the sides, the trial Court has convicted the accused for the alleged offence against which the accused have preferred criminal appeal before the first Appellate Court. (2.8) After perusing the entire evidence on record and having heard both the sides, the first Appellate Court has ultimately passed the impugned judgment and order of acquittal as stated hereinabove. (3) Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has preferred the present petition. (4) Heard Ms.Megha Chitaliya, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr.Chirag Upadhyay, learned counsel appearing for the respondents – accused at length. (5) Ms.Megha Chitaliya, learned Additional Public Prosecutor for the appellant – State of Gujarat has submitted the same facts which are narrated in the memo of appeal and has submitted that during the course of the audit report for a period of 1987- 1988, the auditor has found irregularity and, thereafter, he prepared audit report and forwarded to the District Registrar for filing appropriate proceedings against the respondents – accused of the Mandali on the ground that the respondents have committed an offence of breach of trust and also siphoned away the amount to the tune of Rs.33,965.87 and, therefore, on the basis of the audit report, the complaint was filed. She has submitted that the investigation was carried out, the relevant fact was also produced before the Court and on the basis that the trial Court has rightly recorded the conviction against the accused. She has submitted that the investigation was carried out, the relevant fact was also produced before the Court and on the basis that the trial Court has rightly recorded the conviction against the accused. She has submitted that considering the said aspect, the first Appellate Court has, while exercising the appellate jurisdiction, reverted the finding of the trial Court on the basis of the oral as well as documentary evidence which is completely illegal and against the facts of the case. She has submitted that the impugned judgment and order of acquittal deserves to be quashed and set aside and the judgment and order of conviction deserves to be confirmed. She has submitted that the prosecution has produced relevant material and also examined three witnesses and from the evidence of the witnesses, it appears that the prosecution has established the case against the accused and thus, the impugned judgment and order of the first Appellate Court is illegal and erroneous. She has submitted that the finding recorded by the trial Court was just, proper and in consonance with the settled principles of law and while evaluating the oral as well as documentary evidence, the trial Court was right in holding that the accused were guilty for the offences punishable under Sections 408 ad 114 of the IPC. She has submitted that the prosecution has produced relevant material that the accused are in charge of the Mandali and working as Manager and the Clerk and, therefore, while reverting the finding of the trial Court, the first Appellate Court has committed an error of law and facts. She has submitted that the prosecution has established by producing relevant documentary evidence that during the period of 1997-1998, the accused have committed the alleged offence. She has submitted that on perusal of the record and examination of the register maintained by the Mandali, it appears that certain serious illegalities and irregularities were found and on the basis of the same, the auditor made report that accused have siphoned away the amount of the Mandali to the tune of Rs.33,965.87. She has submitted that though the said fact was proved by the evidence of the auditor and also in lack of consistency of the FIR, the auditor supported the case of the prosecution. She has submitted that though the said fact was proved by the evidence of the auditor and also in lack of consistency of the FIR, the auditor supported the case of the prosecution. She has submitted that the impugned judgment and order of acquittal passed by the first Appellate Court be quashed and set aside and the impugned judgment and order of conviction passed by the trial Court be confirmed and the accused be convicted for the alleged offence. (6) Mr.Chirag Upadhyay, learned counsel appearing for the respondents – accused has submitted that the impugned judgment and order passed by the first Appellate Court is just and proper and the same may be confirmed. He has submitted that the prosecution has failed to establish the case beyond reasonable doubt against the accused as the prosecution has not collected any material from the Mandali. He has submitted that with regard to the fact that the accused have entrusted responsibility as Manager and Clerk, there is no any communication or any order passed by the Mandali, it is not come on record and with regard to the fact that the accused have entrusted responsibility to work as Manager and Clerk and, therefore, the prosecution has failed to establish the basic ingredients entrustment since there was no entrustment was proved and, therefore, the charge under Section 408 of the IPC cannot be proved against the accused. He has submitted that the first Appellate Court has, while exercising the power, rightly reversed the finding recorded by the trial Court, while passing the impugned judgment and order of acquittal. He has submitted that the prosecution has not produced any record worth the name to connect the accused with the crime in question. He has submitted that the writing of the entry in the register was not proved by the prosecution and even the prosecution has failed to prove that the respondents have posted the entry and committed any irregularity and thereby syphoned away the amount worth the name except report of the auditor and on the basis of the same, it cannot be said that the prosecution has proved the against beyond reasonable doubt against the accused. He has submitted that the first Appellate Court has rightly passed the impugned judgment and order of acquittal and quashed and set aside the impugned judgment and order of conviction. He has submitted that the first Appellate Court has rightly passed the impugned judgment and order of acquittal and quashed and set aside the impugned judgment and order of conviction. He has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of acquittal deserves to be confirmed. (7) In respect of the serious allegation of defalcation to the tune of Rs.33,965.87 and other amount of the properties of the cooperative society involving into abetment by each of the accused thereby cause defalcation was charge against the accused and that charge was not proved and established by the prosecution by leading cogent and material evidence, the conviction of the accused recorded by the trial Court for the offence under Sections 408 and 114 of the IPC on the basis of vicarious liability was not justified and proved. When there was no material collected or produced before the trial Court by the prosecution that whether the accused are in charge of the Mandali as Manager and Clerk or there was any material to show that the entry which is posted in the registers based upon such audit report was made by the auditor is posted by the accused with an intend to commit offence of breach of trust as the said item was entrusted to the accused by the society is not come on record. Onus lies on the prosecution to prove affirmatively that accused were directly and personally connected with the acts or omissions pertaining to the items of property referred in the audit report in respect of which the defalcation was alleged. Under these circumstances, the first Appellate Court has rightly passed the order of acquittal while reversing the finding recorded by the trial Court. It can be said that the respondents were included in their initial duty, it cannot be a positive proof of the accused intention to commit the offence. In absence of such material, mere fact that the accused happened to be working in the society would not make them criminal liability in vicarious sense. It can be said that the respondents were included in their initial duty, it cannot be a positive proof of the accused intention to commit the offence. In absence of such material, mere fact that the accused happened to be working in the society would not make them criminal liability in vicarious sense. (8) Considering the facts and circumstances of the case, it appears that the accused have not committed any offence of misappropriation or siphoned away the amount merely because the accused were not able to produce the property which was entrusted to them cannot be said that the accused are liable for the criminal breach of trust as defined under Section 408 of the IPC, which reads thus:- “408. Criminal breach of trust by clerk or servant.— Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” (9) In order to establish the offence under Section 408 of the IPC, there must be a dishonest misappropriation of the property entrusted. So long as the amount has not been recovered from the person of the respondent or from their possession and there is no evidence that they have taken the amount, though they were answerable for the amount, it cannot be held that the accused have dishonestly misappropriated the amount or siphoned away the said amount of the society. (10) The criminal breach of trust has been defined under Section 405 of the IPC, which reads thus:- “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 wilfully suffers any other person so to do, commits “criminal breach of trust”. (11) To constitute an offence of criminal breach of trust as rightly pointed out by the Court below there must be a dishonest misappropriation. Mere misappropriation will not amount to criminal breach of trust. It must be dishonest. Dishonest misappropriate is again defined under Section 403 of the IPC, which reads thus:- "403. Dishonest misappropriation of property.---Whoever dishonestly misappropriates or converts to his own use any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 'Dishonestly' has been further defined under Section 24 of the Indian Penal Code, which reads as under: "24. 'Dishonestly'.---Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"." (12) Whoever does anything with the intention of causing wrongful gain or loss to any other is said to have committed that thing dishonestly. Therefore in order to constitute an offence under Sections 403 and 408 of the IPC. there must be a wrongful gain to the person who commits the offence or there must be wrongful loss to another person. Thrust of the provision is to the gain or loss. In these circumstances it is important to note that so long as the amount has not been recovered either from the person or from the possession of the respondents it cannot be said that they had an intention of causing wrongful gain by taking the said amount. No witness has spoken that the amount was taken by the respondents. Therefore, as rightly observed by the Court below no offence of criminal breach of trust has been constituted in the facts and circumstances of the case and the first Appellate Court has rightly acquitted the respondents. Sometimes the respondents may be liable for negligence but not liable for the offence, they were charged. In view of this, this Court does not find any ground to interfere with the impugned judgment and order of acquittal. (13) It is pertinent to refer to the decision of the Hon’ble Supreme Court in the case of Jethsur Surangbhai Vs. State of Gujarat reported in AIR 1984 SC 151 while reverting the findings of the High Court thereby convicting the accused, has held and observed in para – 9 as under:- “9. (13) It is pertinent to refer to the decision of the Hon’ble Supreme Court in the case of Jethsur Surangbhai Vs. State of Gujarat reported in AIR 1984 SC 151 while reverting the findings of the High Court thereby convicting the accused, has held and observed in para – 9 as under:- “9. Having gone through the judgment of the High Court we find ourselves unable to accept the argument of Mr. Phadke. The counsel for the appellant rightly argued with great force and vehemence that taking the findings of the High Court ex facie no case of defalcation of Items (2) to (4) has been made out. In our opinion, the contention raised by the counsel for the appellant is wellfounded and must prevail. With due respect what the High Court seems to have missed is that in a case like this where there was serious defalcation of the properties of the Sangh, unless the prosecution proved that there was a close cohesion and collusion between all the accused which formed the subject matter of a conspiracy, it would be difficult to prove the dual charges particularly against the appellant (A-l). The charge of conspiracy having failed, the most material and integral part of the prosecution story against the appellant disappears. The only ground on the basis of which the High Court has convicted him is that as he was the chairman of the Managing Committee, he must be held to be vicariously liable for any Order given or misappropriation committed by the other accused. The High Court, however, has not referred to the concept of vicarious liability but the findings of the High Court seem to indicate that this was the central idea in the mind of the High Court for convicting the appellant. In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to items 2, 3 and 4. It is conceded by Mr. In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the appellant was directly and personally connected with acts or omissions pertaining to items 2, 3 and 4. It is conceded by Mr. Phadke that no such direct evidence is forthcoming and he tried to argue that as the appellant was chairman of the Sangh and used to sign papers and approve various tenders, even as a matter of routine he should have acted with care and caution and his negligence would be a positive proof of his intention to commit the offence. We are however unable to agree with this somewhat broad statement of the law. In the absence of a charge of conspiracy the mere fact that the appellant happened to be the Chairman of the Committee would not make him criminally liable in a vicarious sense for items 2 to 4. There is no evidence either direct or circumstantial to show that apart from approving the purchase of fertilisers he knew that the firms from which the fertilisers were purchased did not exist. Similar is the case with the other two items. Indeed, if the chairman was to be made liable then all members of the Committee, viz, Tehsildar and other nominated members, would be equally liable because all of them participated in the deliberations of the meetings of the Committee, a conclusion which has not even been suggested by the prosecution. As chairman of the Sangh the appellant had to deal with a large variety of matters and it would not be humanly possible for him to analyse and go into the details of every small matter in order to find out whether there has been any criminal breach of trust. In fact, the hero of the entire show seems to be A-3 who had so stage-managed the drama as to shield his guilt and bring the appellant in the forefront. But they by itself would not be conclusive evidence against the appellant. There is nothing to show that A-3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit. But they by itself would not be conclusive evidence against the appellant. There is nothing to show that A-3 had either directly or indirectly informed the appellant regarding the illegal purchase of fertilisers or the missing of the five oil engines which came to light much later during the course of the audit. Far from proving the intention the prosecution has failed to prove that the appellant had any knowledge of defalcation of items 2 to 4, In fact, so far as item 3 is concerned, even Mr. Phadke conceded that there is no direct evidence to connect the appellant.” (14) In a criminal case of such a serious nature mens rea cannot be excluded and once the charge of conspiracy failed the onus lay on the prosecution to prove affirmatively that the accused were directly and personally connected with acts or omissions pertaining to items as referred in the audit report. In the present case, this Court has carefully examined the evidence on record and considered overall facts and circumstances of the case and the submissions canvassed by the learned counsel appearing for the respective parties. This Court is of the opinion that the charges against the accused are not proved by the prosecution beyond reasonable doubt and, therefore, no any illegality and infirmity is found in the impugned judgment and order of acquittal passed by the first Appellate Court. (15) This Court is complete agreement with the observations and findings made by the first Appellate Court and no error is found. Hence, the appeal being meritless deserves to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and order acquittal passed by the first Appellate Court is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Court forthwith.