RAVINDER KUMAR vs STATE OF HP

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 4177 of 2013
Reserved on: 14.10.2026
Date of Decision: 06.11.2026.
Ravinder Kumar ...Petitioner
Versus
State of H.P. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
For the Petitioner(s) : Mr Sparsh Bhushan, Advocate.
For the Respondent : Mr Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The present revision petition is directed against the
judgment dated 12.9.2013, passed by the learned Additional
Sessions Judge-II, Una, District Una, H.P. (learned Appellate
Court), vide which the judgment of conviction dated 9.9.2008
and order of sentence dated 11.9.2008, passed by the learned
Judicial Magistrate First Class, Court No.3, Una, District Una
(learned Trial Court), were upheld. (The parties shall hereinafter be
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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referred to in the same manner as they were arrayed before the
learned Trial Court for convenience) .
2. Briefly stated, the facts giving rise to the present
revision are that the police presented a challan against the
accused before the learned Trial Court for the commission of
offences punishable under Sections 409 and 420 of the Indian
Penal Code (IPC). It was asserted that the accused was posted as
Extra Departmental Branch Postmaster, Branch Post Office,
Dhundla, under Lathiani Sub Post Office. He was looking after the
work of deposits in the Post Office. Jaswant Singh, Bimla Devi,
Parkash Chand, Mukhtiari Devi, Sikandro Devi, Babu Deen, Banta
Ram, Ajeet Kaundal, Brahmi Devi, Roshani Devi, Birbal, Balbir
Singh, Suresh Kumar, Anita Kumari, Onkar Singh, Asha Devi, Yog
Raj, Pushpa Devi, Pankaj, Pradeep Kumar, Vijay Kumari, Pushpa
Devi, Ashwani Kumar, Neelam Kumari, Neetu Devi, Parkash
Chand, Leela Devi, Parkash Chand, Rakesh Kumar, Mamta,
Shivani, Ritu Kumari, Ram Kishan, Meena Devi, Daleep Singh,
Nirmala Devi, Rattan Chand, Gorakh Ram, Ranju, and Rajindra
Devi tendered different amounts to the accused along with pay-
in slips and passbooks. The accused entered the amount in the
passbooks, date-stamped and initialled them and returned them
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to the depositors. However, he failed to reflect the amount in the
S.B. Journal, B.O. Account, and B.O. Daily Account; hence, the
amount was not credited to the depositors’ accounts. The
accused forged the signatures of Chaman Lal, Pushpa Devi, and
withdrew different amounts from their accounts. The matter was
reported to the police by means of an application (Ex.PW-3/A).
The police registered an FIR (Ex.PW-5/A). Chander Singh (PW-7)
investigated the matter. He seized the record vide memo (Ex.PW-
1/B) and recorded the statements of witnesses as per their
version. After completion of the investigation, the challan was
prepared and presented before the learned Trial Court.
3. The learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared, he was
charged with the commission of offences punishable under
Sections 409 and 420 of the Indian Penal Code (IPC), to which he
pleaded not guilty and claimed to be tried.
4. The prosecution examined seven witnesses to prove
its case. Prithvi Raj (PW1) produced the record. Thakur Dass
(PW2) investigated the matter on behalf of the Department. Sher
Singh (PW-3) proved that a complaint was made to him. Kishori
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Lal (PW-4) was working as SHO. Narpat Ram (PW-5) signed the
FIR. Annulla Kumar (PW-6) made the complaint. Chander Singh
(PW-7) investigated the matter.
5. The accused, in his statement recorded under Section
313 of the Code of Criminal Procedure (Cr.P.C.), admitted that he
was posted as an Extra Departmental Branch Postmaster. He
denied the rest of the prosecution case. He claimed that he had
not committed any embezzlement. However, he admitted that
money was recovered from him. He examined Kishan Chand
(DW-1) and Surender Kumar (DW-2) to prove his defence.
6. The learned Trial Court held that the accused
admitted that he was posted as Extra Departmental Branch
Postmaster. Surender Kumar (DW-2) admitted that the accused
had deposited the amount. The accused was entrusted with the
money, and he had failed to credit the money to the depositors'
accounts. He had made false entries in the passbook. Hence, the
learned Trial Court convicted and sentenced the accused as
under:
Conviction Sentence
Section 409 of IPC To undergo rigorous
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imprisonment for three years, pay
a fine of ₹5,000/- and, in default
of payment of fine, to undergo
rigorous imprisonment for one
month.
Section 420 of IPC To undergo rigorous
imprisonment for three years, pay
a fine of ₹5,000/- and, in default
of payment of fine, to undergo
rigorous imprisonment for one
month.
7. Being aggrieved by the judgment and order passed by
the learned Trial Court, the accused filed an appeal, which was
decided by the learned Additional Sessions Judge-II, Una, District
Una (learned Appellate Court). The learned Appellate Court
concurred with the findings recorded by the learned Trial Court
that the money was deposited with the accused. Surender Kumar
(DW-2) admitted that the accused had deposited the money,
which showed his guilt. The accused had made false entries in the
passbook, and the learned Trial Court had rightly convicted and
sentenced the accused. There was no infirmity in the judgment
and order passed by the learned Trial Court; hence, the appeal
was dismissed.
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8. Being aggrieved by the judgments and order passed by
the learned Courts below, the petitioner/accused has preferred
the present revision, asserting that the learned Courts below
erred in appreciating the material placed before them. The FIR
was lodged based on an audit report in which some irregularities
were detected. The entries could not be carried forward, and
there was no dishonest intention on the part of the accused. The
accused was the in-charge of the Post Office, and he was
handling the work of the Post Office without any help. He failed
to make the entries because of the excessive work. There was no
mala fide on the part of the accused. Therefore, it was prayed that
the present revision be allowed and the judgments and orders
passed by the learned Courts below be set aside.
9. I have heard Mr Sparsh Bhushan, learned counsel for
the petitioner/accused, and Mr Jitender Sharma, learned
Additional Advocate General, for the respondent-State.
10. Mr Sparsh Bhushan, learned counsel for the
petitioner/accused, submitted that the learned Courts below
erred in convicting and sentencing the accused. No depositor was
examined to prove that any money was entrusted to the accused.
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Mere entries in the statement of account are not sufficient to
prove the entrustment. The learned Courts below failed to
appreciate this aspect and solely relied upon the audit report,
which is not sufficient. Therefore, he prayed that the revision be
allowed and the judgments and order passed by the learned
Courts below be set aside.
11. Mr Jitender Sharma, learned Additional Advocate
General for the respondent-State, submitted that the petitioner
admitted that he was posted as Extra Departmental Branch
Postmaster. It was duly proved by the statement of Thakur Ram
(PW-2) that the accused had made entries in the passbooks of the
depositors, but he had failed to make the entries in the books of
account of the Post Office. This proved that the money was
entrusted to the accused, but he had failed to credit it to the
depositors' accounts. This Court should not re-appreciate the
evidence while deciding the revision; hence, he prayed that the
present revision be dismissed.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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13. It was laid down by the Hon’ble Supreme Court in
Kuntegowda v. Thurubaiah, 2026 SCC OnLine SC 1485, that a
revisional court does not act as an appellate court and it can only
determine the correctness, legality and propriety of the findings,
sentence and order recorded by the lower court. It was observed:
“7. Before parting, we would like to accentuate the
revisional jurisdiction of the High Courts and the contours
and inherent limits while exercising powers as a revisional
authority. Section 397 of the Criminal Procedure Code,
1973 (now Section 438 of Bharatiya Nagarik Suraksha
Sanhita, 2023) encapsulates the power of High Courts and
Sessions Courts to examine the correctness, legality or
propriety of any order passed by an inferior criminal court.
The said Section is extracted as hereunder:
“438. Calling for records to exercise powers of
revision.— (1) The High Court or any Sessions Judge
may call for and examine the record of any proceeding
before any inferior Criminal Court situate within its or
his local jurisdiction for the purpose of satisfying itself
or himself as to the correctness, legality or propriety of
any finding, sentence or order, recorded or passed, and
as to the regularity of any proceedings of such inferior
Court, and may, when calling, for such record, direct
that the execution of any sentence or order be
suspended, and if the accused is in confinement that he
be released on his own bond or bail bond pending the
examination of the record.
Explanation. —All Magistrates, whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this subsection and
of section 439.
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(2) The powers of revision conferred by sub-section
(1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial
or other proceeding.
(3) If an application under this section has been
made by any person either to the High Court or to the
Sessions Judge, no further application by the same
person shall be entertained by the other of them.”
Discretion in the exercise of revisional jurisdiction
should be exercised within the four corners of this section
whenever there has been miscarriage of justice. However,
while exercising power under this section, the Court does
not act as an appellate Court and therefore, while
considering the legality, propriety or the correctness of a
finding or a conclusion, the revisional court does not and
should not dwell upon the facts and the evidence of the
case as an appellate Court. The court, in revision,
considers the material only to satisfy itself about the
correctness, legality and propriety of the findings,
sentence and order recorded by the lower court, and
should refrain from substituting its conclusion on an
elaborate consideration of evidence, and the findings of
the lower courts should not be reversed merely on the
ground that an alternative view is possible on the facts of
the case. In this case, such a position did not also emanate
from the evidence on record.
7.1. This Court, in State of Maharashtra v. Jagmohan Singh
Kuldip Singh Anand, (2004) 7 SCC 659: 2004 SCC (Cri) 2003,
observed that the High Court, in exercise of its revisional
jurisdiction, cannot embark upon an in-depth roving re-
examination of the oral evidence and medical evidence
and come to a conclusion contrary to the consistent one
reached by two courts below. In the facts of the present
case, in the impugned judgment, the High Court gravely
erred in upsetting the concurrent findings of conviction of
the trial court and the Appellate Court by substituting its
own conclusions and reasoning on the merits of the case
and thereby erred in setting aside the well-reasoned and
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correct judgment and orders of the trial and appellate
courts.
7.2. Upon perusal of the impugned judgment and order
dated 06.10.2023, it is apparent that the High Court went
into great detail into each of the testimonies, documents
and merits of the case, which could have been avoided,
especially when the subject matter had come under its
revisional jurisdiction. Instead, acting as an appellate
Court, the High Court deemed it fit to go into the merits of
the case, something which is generally impermissible
unless a glaring contradiction is apparent on the face of
the record. In State of Kerala v. Puttumana Illath Jathavedan
Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275 , while
considering the scope of the revisional jurisdiction of the
High Court, this Court has laid down the following:
“5. … In its revisional jurisdiction, the High Court
can call for and examine the record of any proceedings
for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of supervisory
jurisdiction exercised by the High Court for correcting a
miscarriage of justice. But the said revisional power
cannot be equated with the power of an appellate court
nor can it be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to re-appreciate the
evidence and come to its own conclusion on the same
when the evidence has already been appreciated by the
Magistrate as well as the Sessions Judge in appeal,
unless any glaring feature is brought to the notice of
the High Court which would otherwise tantamount to a
gross miscarriage of justice. On scrutinising the
impugned judgment of the High Court from the
aforesaid standpoint, we have no hesitation in coming
to the conclusion that the High Court exceeded its
jurisdiction in interfering with the conviction of the
Respondent by reappreciating the oral evidence. …”
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7.3. The contours for exercise of revisional jurisdiction
have been well settled by the judicial dicta of this Court
wherein time and again it has been observed that the High
Court shall not interfere with the orders of the lower court
unless:
i. The order or finding of the lower court is perverse,
grossly erroneous, glaringly unreasonable or wholly
unreliable or untenable in law.
ii. The lower court has passed the impugned order after
considering immaterial or irrelevant material or no
material at all.
iii. There is a non-consideration of any relevant
material or the judicial discretion has been exercised
arbitrarily or capriciously.
7.4. This Court, in Sanjibij Tari v. Kishore S. Borcar, 2025
INSC 1158, in similar facts and circumstances wherein the
High Court had reversed concurrent findings of conviction
under Section 138 of the NI Act, while setting aside the
impugned order, observed as under:
“27. It is well settled that in exercise of revisional
jurisdiction, the High Court does not, in the absence of
perversity, upset concurrent factual findings. This
Court is of the view that it is not for the Revisional
Court to reanalyse and re-interpret the evidence on
record. As held by this Court in Southern Sales & Services
v. Sauermilch Design and Handels GMBH, (2008) 14 SCC
457 , it is a well-established principle of law that the
Revisional Court will not interfere, even if a wrong
order is passed by a Court having jurisdiction, in the
absence of a jurisdictional error.
28. Consequently, this Court is of the view that in the
absence of perversity, it was not open to the High Court
in the present case, in revisional jurisdiction, to upset
the concurrent findings of the Trial Court and the
Sessions Court.”
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7.5. In the facts of the present case, we find that the High
Court has failed to highlight any reason or material
satisfaction to the effect that there was any such glaring
contradiction or perversity apparent on the face of the
record so as to justify the exercise of the powers under
revisional jurisdiction and thereby erred in interfering
with the judgment and orders of the courts below.
Therefore, the present appeal has to be allowed by setting
aside the impugned order of the High Court. In view of the
aforesaid discussion, we are of the view that the High
Court committed an error in setting aside the order of
conviction in exercise of revisional jurisdiction. No
sufficient ground has been mentioned by the High Court in
its judgment to enable it to exercise its revisional
jurisdiction for setting aside the conviction.
14. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
15. The ingredients of Section 409 of IPC were explained
by the Hon’ble Supreme Court in Sadhupati Nageswara Rao v.
State of A.P., (2012) 8 SCC 547 , wherein it was observed: -
14. 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 a
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, a banker or an
agent, was entrusted with the property of which he
is duty-bound to account for; and
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( ii ) the accused has committed a criminal breach of
trust. What amounts to a criminal breach of trust is
provided under Section 405 IPC.
The basic requirement to bring home the
accusations under Section 405 is the requirement to
prove conjointly ( i ) entrustment, and ( ii ) whether
the accused was actuated by dishonest intention or
not, misappropriated it or converted it to his use to
the detriment of the persons who entrusted it.
16. A similar view was taken by the Hon’ble Supreme
Court in N. Raghavender v. State of A.P., (2021) 18 SCC 70 , wherein
it was held: -
45. Section 409IPC pertains to criminal breach of trust by
a public servant or a banker, in respect of the property
entrusted to him. The onus is on the prosecution to prove
that the accused, a public servant or a banker, was
entrusted with the property which he is duly bound to
account for and that he has committed criminal breach of
trust. (See Sadhupati Nageswara Rao v. State of A.P.
[Sadhupati Nageswara Rao v. State of A.P., (2012) 8 SCC 547 :
(2012) 3 SCC (Cri) 979 : (2012) 2 SCC (L&S) 638 ] )
46. The entrustment of public property and dishonest
misappropriation or use thereof in the manner illustrated
under Section 405 is a sine qua non for making an offence
punishable under Section 409IPC. The expression
“criminal breach of trust” is defined under Section 405
IPC, which provides, inter alia, that whoever being in any
manner entrusted with property or with any dominion
over property, dishonestly misappropriates or converts to
his use that property, or dishonestly uses or disposes of
that property contrary to law, or in violation of any law
prescribing the mode in which such trust is to be
discharged, or contravenes any legal contract, express or
implied, etc. shall be held to have committed criminal
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breach of trust. Hence, to attract Section 405IPC, the
following ingredients must be satisfied:
46.1. Entrusting any person with property or with any
dominion over property.
46.2. That person has dishonestly misappropriated or
converted that property to his use.
46.3. Or that person is dishonestly using or disposing of
that property or wilfully suffering any other person so to
do in violation of any direction of law or a legal contract.
47. It ought to be noted that the crucial word used in
Section 405IPC is “dishonestly” and therefore, it
presupposes the existence of mens rea . In other words,
mere retention of property entrusted to a person without
any misappropriation cannot fall within the ambit of
criminal breach of trust. Unless there is some actual use by
the accused in violation of law or contract, coupled with
dishonest intention, there is no criminal breach of trust.
The second significant expression is “misappropriates”,
which means improperly setting apart for one's use and to
the exclusion of the owner.
48. No sooner are the two fundamental ingredients of
“criminal breach of trust” within the meaning of Section
405IPC proved, and if such criminal breach is caused by a
public servant or a banker, merchant or agent, the said
offence of criminal breach of trust is punishable under
Section 409IPC, for which it is essential to prove that:
( i ) The accused must be a public servant or a banker,
merchant or agent;
( ii ) He/She must have been entrusted, in such
capacity, with property; and
( iii ) He/She must have committed a breach of trust in
respect of such property.
49. Accordingly, unless it is proved that the accused, a
public servant or a banker, etc., was “entrusted” with the
property which he is duty-bound to account for and that
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such a person has committed criminal breach of trust,
Section 409IPC may not be attracted. “Entrustment of
property” is a wide and generic expression. While the
initial onus lies on the prosecution to show that the
property in question was “entrusted” to the accused, it is
not necessary to prove further the actual mode of
entrustment of the property or misappropriation thereof.
Where the “entrustment” is admitted by the accused or
has been established by the prosecution, the burden then
shifts to the accused to prove that the obligation vis-à-vis
the entrusted property was carried out in a legally and
contractually acceptable manner.
17. In the present case, the prosecution has not examined
any depositor and has relied upon the audit report (Ex.PW-2/A),
the statement of Thakur Ram (PW-2) and the account books to
secure the conviction. This was not sufficient. Thakur Ram went
through the books of accounts to prepare the audit report. It was
laid down by the Hon’ble Supreme Court in CBI v. V.C. Shukla ,
(1998) 3 SCC 410: 1998 SCC OnLine SC 790 that entries in the books
of accounts are not sufficient to charge a person with liability. It
was observed at page 424:
“16. To appreciate the contentions raised before us by the
learned counsel for the parties it will be necessary at this
stage to refer to the material provisions of the Act. Section
3 declares that a fact is relevant to another when it is
connected with the other in any of the ways referred to in
the provisions of the Act relating to the relevancy of facts;
and those provisions are to be found in Sections 6 to 55
appearing in Chapter II. Section 5, with which Chapter II
opens, expressly provides that evidence may be given in
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any suit or proceeding of the existence or non-existence of
every fact in issue and the facts declared relevant in the
aforesaid sections, and of no others. Section 34 of the Act
reads as under:
“34. Entries in books of account when relevant .—Entries
in books of account, regularly kept in the course of
business, are relevant whenever they refer to a matter
into which the Court has to inquire, but such
statements shall not alone be sufficient evidence to
charge any person with liability.”
17. From a plain reading of the section it is manifest that to
make an entry relevant thereunder it must be shown that
it has been made in a book, that book is a book of account
and that book of account has been regularly kept in the
course of business. From the above section it is also
manifest that even if the above requirements are fulfilled
and the entry becomes admissible as relevant evidence,
still, the statement made therein shall not alone be
sufficient evidence to charge any person with liability. It is
thus seen that while the first part of the section speaks of
the relevancy of the entry as evidence, the second part
speaks, in a negative way, of its evidentiary value for
charging a person with a liability. It will, therefore, be
necessary for us to first ascertain whether the entries in
the documents, with which we are concerned, fulfil the
requirements of the above section so as to be admissible in
evidence and if this question is answered in the
affirmative then only its probative value need be assessed.
*
35. The probative value of the liability created by an entry
in books of account came up for consideration in
Chandradhar Goswami v. Gauhati Bank Ltd. [AIR 1967 SC
1058 : (1967) 1 SCR 898 : 37 Comp Cas 108] That case arose
out of a suit filed by Gauhati Bank against Chandradhar
(the appellant therein) for recovery of a loan of Rs 40,000.
In defence he contended, inter alia, that no loan was taken.
To substantiate their claim the Bank solely relied upon
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certified copy of the accounts maintained by them under
Section 4 of the Bankers' Book Evidence Act, 1891 and
contended that certified copies became prima facie
evidence of the existence of the original entries in the
accounts and were admissible to prove the payment of
loan given. The suit was decreed by the trial court and the
appeal preferred against it was dismissed by the High
Court. In setting aside the decree this Court observed that
in the face of the positive case made out by Chandradhar
that he did not ever borrow any sum from the Bank, the
Bank had to prove the fact of such payment and could not
rely on mere entries in the books of account even if they
were regularly kept in the course of business in view of the
clear language of Section 34 of the Act. This Court further
observed that where the entries were not admitted it was
the duty of the Bank, if it relied on such entries to charge
any person with liability, to produce evidence in support of
the entries to show that the money was advanced as
indicated therein and thereafter the entries would be of
use as corroborative evidence.
36. The same question came up for consideration before
different High Courts on a number of occasions but to
eschew prolixity we would confine our attention to some
of the judgments on which Mr Sibal relied. In M.S.
Yesuvadiyan v. P.S.A. Subba Naicker [AIR 1919 Mad 132 : 52 IC
704] one of the learned Judges constituting the Bench had
this to say:
“Section 34, Evidence Act, lays down that the entries in
books of account, regularly kept in the course of
business are relevant, but such a statement will not
alone be sufficient to charge any person with liability.
That merely means that the plaintiff cannot obtain a
decree by merely proving the existence of certain
entries in his books of account even though those books
are shown to be kept in the regular course of business.
He will have to show further by some independent
evidence that the entries represent real and honest
transactions and that the moneys were paid in
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accordance with those entries. The legislature however
does not require any particular form or kind of evidence
in addition to entries in books of account, and I take it
that any relevant facts which can be treated as evidence
within the meaning of the Evidence Act would be
sufficient corroboration of the evidence furnished by
entries in books of account if true.”
While concurring with the above observations the other
learned Judge stated as under:
“ If no other evidence besides the accounts were given,
however strongly those accounts may be supported by the
probabilities, and however strong may be the evidence as
to the honesty of those who kept them, such consideration
could not alone with reference to Section 34, Evidence Act,
be the basis of a decree .” (emphasis supplied)
37. In Beni v. Bisan Dayal [AIR 1925 Nag 445 : 89 IC 371] it
was observed that entries in books of account are not by
themselves sufficient to charge any person with liability,
the reason being that a man cannot be allowed to make
evidence for himself by what he chooses to write in his
own books behind the back of the parties. There must be
independent evidence of the transaction to which the
entries relate and in absence of such evidence no relief can
be given to the party who relies upon such entries to
support his claim against another. In Hira Lal v. Ram
Rakha [AIR 1953 Pepsu 113] the High Court, while
negativing a contention that it having been proved that
the books of account were regularly kept in the ordinary
course of business and that, therefore, all entries therein
should be considered to be relevant and to have been
proved, said that the rule as laid down in Section 34 of the
Act that entries in the books of account regularly kept in
the course of business are relevant whenever they refer to
a matter in which the Court has to enquire was subject to
the salient proviso that such entries shall not alone be
sufficient evidence to charge any person with liability. It is
not, therefore, enough merely to prove that the books
have been regularly kept in the course of business and the
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entries therein are correct. It is further incumbent upon
the person relying upon those entries to prove that they
were in accordance with facts.
38. The evidentiary value of entries relevant under Section
34 was also considered in Hiralal Mahabir Pershad [ILR
(1967) 1 P&H 435] . I.D. Dua, J. (as he then was) speaking
for the Court observed that such entries though relevant
were only corroborative evidence and it is to be shown
further by some independent evidence that the entries
represent honest and real transactions and that monies
were paid in accordance with those entries.
39. A conspectus of the above decisions makes it evident
that even correct and authentic entries in books of account
cannot without independent evidence of their
trustworthiness, fix a liability upon a person. Keeping in
view the above principles, even if we proceed on the
assumption that the entries made in MR 71/91 are correct
and the entries in the other books and loose sheets (which
we have already found to be not admissible in evidence
under Section 34) are admissible under Section 9 of the Act
to support an inference about the former's correctness
still those entries would not be sufficient to charge Shri
Advani and Shri Shukla with the accusations levelled
against them for there is not an iota of independent
evidence in support thereof. In that view of the matter we
need not discuss, delve into or decide upon the contention
raised by Mr Altaf Ahmed in this regard. Suffice it to say
that the statements of the four witnesses, who have
admitted receipts of the payments as shown against them
in MR 71/91, can at best be proof of reliability of the entries
so far as they are concerned and not others. In other
words, the statements of the above witnesses cannot be
independent evidence under Section 34 as against the
above two respondents. So far as Shri Advani is concerned
Section 34 would not come in aid of the prosecution for
another reason also. According to the prosecution case
itself his name finds place only in one of the loose sheets
(Sheet No. 8) and not in MR 71/91. Resultantly, in view of
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our earlier discussion, Section 34 cannot at all be pressed
into service against him.
18. It was laid down by the Hon’ble Supreme Court in
S arla Devi v. State of Kerala (Special Leave Petition (Crl.) No. 2910–
2911 of 2026, decided on 19.5.2026 that the prosecution is required
to prove entrustment, which is not a matter of presumption but a
foundational, jurisdictional fact. It was observed:
17. The offence under Section 409 IPC necessarily
postulates proof of entrustment coupled with dishonest
misappropriation. Entrustment is not a matter of
presumption, but a foundational jurisdictional fact which
the prosecution is bound to establish affirmatively and
beyond reasonable doubt. Mere absence of corresponding
entries in the cash book or day book of the Society cannot
by itself establish misappropriation unless lawful
entrustment is first proved through cogent and reliable
evidence, which in our considered view was not
sufficiently established.
18. At the cost of repetition, the prosecution failed to
produce any independent material such as
contemporaneous disbursement registers, treasury
records, acknowledgement registers, vouchers, or
testimony of any independent witness to establish actual
delivery of cash to the Appellant. Conviction, therefore,
has substantially been recorded on the basis of doubtful
documentary evidence coupled with testimony of
witnesses whose evidence required careful and necessary
corroboration.
19. Similarly, it was held in Ramkrushna Prahllad
Dongardive v. State of Maharashtra, 2026 SCC OnLine SC 2091 that
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where the prosecution has failed to prove the entrustment, the
accused cannot be held liable. It was observed:-
25. Thus, having considered the entire material on record,
we are of the considered view that the trial Court had
rightly acquitted the appellant. The prosecution had failed
to prove entrustment of property to the appellant. The
material on record is insufficient to conclude that the
appellant was guilty of misappropriation of that property.
There is also no evidence whatsoever to indicate any
dishonest intention on the part of the appellant that would
have resulted in commission of an offence punishable
under Section 409 of the Penal Code, 1860.
20. In the present case, there is no proof of any
entrustment, and the learned Courts below erred in relying upon
the statement of Thakur Ram (PW-2) to infer entrustment and
misappropriation. Thus, the judgment passed by the learned
Trial Court convicting the accused of the commission of an
offence punishable under Section 409 of the IPC cannot be
sustained.
21. The police filed a charge-sheet before the learned
Trial Court for the commission of offences punishable under
Sections 409 and 420 IPC, which require different mens rea and
cannot exist together. It was laid down by the Madras High Court
in Vadivel vs. Packialakshmi, 1996 Crl. L.J. 300 that dishonest
intention is the sine qua non to attract cheating and voluntary
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entrustment is necessary to constitute the breach of trust. Both
these states of mind are mutually exclusive. It was observed: -
“8. Thus, it is seen that for identifying the concept of
criminal cheating, as provided under Section 416 of the
Indian Penal Code, the ingredients of fraudulent,
dishonest intention have become the basic sine qua non
and if it is there or identified, then it is to be further
ascertained that, as a result of which, the person so
represented must be made to deliver any property to the
other and that the inducement must be inherent with the
intention to keep the same or to utilise the said property
for the use and utilisation of the person who made such
an inducement with such intention. Whereas, in the
concept of criminal breach of trust, as defined under
Section 405 of the Indian Penal Code, voluntary
entrustment following dominion over such property by
one to the other person has become necessary to be
identified and that the property has become necessarily
disentitled, misappropriated or converted in such a way
as provided by the Section. If the ingredients set out in the
above sections of the law are identified, upon the
materials placed by the prosecution, then Sections 406
and 420 of the Indian Penal Code, respectively, being the
punishment sections, come into operation.
However, while doing such legal exercises, it has become
imperative for the Court to see that criminal breach of
trust and cheating, though generally involving dishonest
intention, are mutually exclusive and different in the
basic concept, in the context that criminal breach of trust
is voluntary and cheating is purely on the basis of
inducement with dishonest intention. In this regard, I
have to say my view that both the concepts of law for the
respective offences are totally distinct, different and
accordingly, mutually exclusive from each other. Unless
and until these are adequate materials available and made
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before the Court of law, both offences can be dealt with
together.”
22. A similar view was taken by the Punjab and Haryana
High Court in Jalpa Parshad Aggarwal v. State of Haryana, 1987 SCC
OnLine P&H 580 wherein it was observed:
“3. At the very outset, it may be mentioned that this Court
held in Iqbal Singh Randhawa v. Doctor Satpaul Goyal, 1977
C.L.R. (Pb. & Har.) 134 , that an offence under section 406,
Penal Code, 1860, is an antithesis of an offence under
section 420, Penal Code, 1860. In a case of criminal
misappropriation, the property is voluntarily kept in the
custody of an accused, whereas in a case of cheating, the
accused, by adopting deceitful means, induces the
complainant to part with the property. Thus, an accused
cannot be tried for these two offences simultaneously.
Either he has committed an offence under Section 406,
Penal Code, 1860 or under Section 420, Penal Code, 1860.”
23. Gujarat High Court also took a similar view in
Rajendrakumar Chakravarti v. Co-operative Bank of Baroda, 1997
SCC OnLine Guj 87: (1997) 2 GLH 394: 1998 Cri LJ 216: (1997) 4 GCD
520 wherein it was observed:
“ A person can alternatively be charged under Sections 406
to 409 or Section 420, I.P.C. It is true that the ingredients
of Sections 406 to 409 and the ingredients of Section 420
are required to be considered. The offence under Section
406, 408 or 409 and the offence under Section 420 could
not go together. But if the alternative charge is framed, it
could not be said that an alternative charge is illegal and
invalid.”
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24. The Rajasthan High Court also held in Rana Ram vs.
State of Rajasthan, S.B. Criminal Misc(Pet.) No. 4893/2024 decided
on 06/08/2024:2024: RJ-JD:33404 that the offences punishable
under Sections 406 and 420 of IPC are antithetical. It was
observed:
“22. There is yet another aspect of the case. The offences
under Section 405 IPC and Section 420 IPC are mutually
antithetical and cannot stand together. In the case of
Section 405 IPC, the property is delivered by the owner in
trust to the accused, and there is no element of dishonesty
on the part of the accused at the inception, i.e. before or at
the time of entrustment of the property to him, but the
element of dishonesty of the accused develops/arises
subsequent to the entrustment of the property to him. As
against this, for applicability of section 420, it is necessary
to show that the element of dishonesty of the accused
existed prior to and/or at the time of the delivery of the
property to him, i.e., at the inception itself.
22.1. Both Sections 405 and 420 of the IPC operate in
distinctly different domains, i.e. entrustment versus
inducement. Section 405 deals with entrustment, where
the victim places trust in the accused by entrusting
property, and any breach of this trust by the accused
directly hurts the victim. In contrast, Section 420 pertains
to inducement, where the accused actively approaches the
victim, often through misrepresentation or deception,
leading the victim to mistakenly believe in his honesty and
part with their property under false
pretences/inducement. Therefore, entrustment centres on
a breach of existing trust, while inducement involves
deceit from the outset.”
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25. It was laid down by the Hon’ble Supreme Court in
Delhi Race Club (1940) Ltd. v. State of U.P., 2024 SCC OnLine SC
2248 that the offences punishable under Sections 406 and 420 of
IPC are distinct and cannot stand together. It was observed:
“41. Before we close this matter, we would like to say
something as regards the casual approach of the courts
below in cases like the one at hand. The Penal Code, 1860
(IPC) was the official Criminal Code in the Republic of
India inherited from British India after independence. The
IPC came into force in the subcontinent during British rule
in 1862. The IPC remained in force for almost a period of
162 years until it was repealed and replaced by the
Bharatiya Nyaya Sanhita (“ BNS ”) in December 2023,
st
which came into effect on 1 July 2024. It is indeed very
sad to note that even after these many years, the courts
have not been able to understand the fine distinction
between criminal breach of trust and cheating.
42. When dealing with a private complaint, the law enjoins
upon the magistrate a duty to meticulously examine the
contents of the complaint so as to determine whether the
offence of cheating or criminal breach of trust, as the case
may be, is made out from the averments made in the
complaint. The magistrate must carefully apply its mind to
ascertain whether the allegations, as stated, genuinely
constitute these specific offences. In contrast, when a case
arises from an FIR, this responsibility is of the police - to
thoroughly ascertain whether the allegations levelled by
the informant indeed fall under the category of cheating or
criminal breach of trust. Unfortunately, it has become a
common practice for police officers to routinely and
mechanically proceed to register an FIR for both the
offences, i.e. criminal breach of trust and cheating, on a
mere allegation of some dishonesty or fraud, without any
proper application of mind.
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43. It is high time that the police officers across the
country are imparted proper training in law so as to
understand the fine distinction between the offence of
cheating viz-a-viz criminal breach of trust. Both offences
are independent and distinct. The two offences cannot
coexist simultaneously in the same set of facts. They are
antithetical to each other. The two provisions of the IPC
(now BNS, 2023) are not twins, and they cannot survive
without each other.”
26. Thus, it was impermissible to charge and convict the
accused of the commission of offences punishable under Sections
409 and 420 of the IPC.
27. In view of the above, the present revision petition is
allowed, and the judgment and order dated 09.09.2008/
11.09.2008 passed by the learned Trial Court, as affirmed by the
learned Appellate Court vide judgment dated 12.09.2013, are
ordered to be set aside. The accused is acquitted of the
commission of the offences punishable under Sections 409 and
420 of the IPC. The fine amount, if deposited, be refunded to the
petitioner/accused after the expiry of the period of limitation, in
case no appeal is preferred, and in case of appeal, the same be
dealt with as per the orders of the Hon’ble Supreme Court of
India.
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28. In view of the provisions of Section 437-A of the Code
of Criminal Procedure [Section 481 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS)], the petitioner/accused is
directed to furnish his personal bond in the sum of ₹25,000/-
with one surety in the like amount to the satisfaction of the
learned Registrar (Judicial) of this Court/learned Trial Court,
within four weeks, which shall be effective for six months with
stipulation that in the event of Special Leave Petition being filed
against this judgment, or on grant of the leave, the
petitioner/accused, on receipt of notice(s) thereof, shall appear
before the Hon’ble Supreme Court.
29. A copy of this judgment, along with records of the
learned Courts below, be transmitted forthwith.
(Rakesh Kainthla)
Judge
th
6 November, 2026
(Chander)
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