Full Judgment Text
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CASE NO.:
Appeal (crl.) 1712 of 1996
PETITIONER:
ANWAR CHAND SAB NANADIKAR
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT: 17/09/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 875
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. : The Court of law is described as a temple of justice.
Logically, the Presiding Officer is the "Pujak" and members of staff are
the "Sewaks", It is, therefore, a matter of grave concern when a "Sewak" is
alleged to have misappropriated funds of the temple. Appellant who was the
property clerk in the Court of Judicial Magistrate, First Class, Chikodi,
allegedly misappropriated properties belonging to the Court and sold them
to four other persons who were acquitted by the trial Court along with the
present appellant. While the appellant stood charged for commission of
offence punishable under Section 409 of the Indian Penal Code, 1860 (in
short the ’IPC’) the rest four stood charged for commission of offence
punishable under Section 411 IPC. The prosecution alleged that while the
properties in question were under the domain of the appellant, he sold them
to accused nos. 2 to 5 during the period 2.3.1979 to 6.6.1985 and,
therefore, committed the offence as alleged. After charge was framed all
the five persons faced trial before the Principal Civil Judge and Judicial
Magistrate, First Class, Chikodi, who by judgment dated 4th July, 1989 held
that all the accused persons were not guilty of the changes. He, inter
alia, observed that the evidence was not satisfactory regarding entrustment
and misappropriation.
The State of Karnataka preferred an appeal before the Karnataka High Court
and the Division Bench by the impugned judgment held that no interference
was called for in the case of the other four accused who were acquitted. So
far as the present appellant is concerned, it was held that the accusations
were established by the evidence on record. During the pendency of the
appeal the Court felt that there were some aspects which were required to
be gone into, and, therefore, by exercise of power under Section 391 of the
Code of Criminal Procedure, 1973 (for short the ’Code’) directed certain
materials to be brought on record by the Trial Court. That was done. After
that by the impugned judgment, the High Court convicted the appellant for
commission of offence under Section 409 IPC and sentenced him to undergo
imprisonment for one year.
In support of the appeal, learned counsel for the appellant submitted that
the evidence was unreliable and both the trial Court and the High Court did
not place reliance on major portion of the evidence. Further the
ingredients necessary to bring home accusations under Section 409 were not
present. Strong reliance was placed by the appellant on decision of this
Court in Rabindra Kumar Dey v. State of Orissa, AIR (1977) SC 170 to
contend that the High Court’s judgment is not tenable. It was submitted
that only entries in the books of accounts were made by the accused and
there was nothing beyond that to show that accused was acting as a property
clerk. Additionally, it was submitted that as noticed by this Court in
Rabindra Kumar Dey ’s case (supra) mere entrustment without anything else
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cannot establish accusations under Section 409 IPC.
Section 409 IPC deals with criminal breach of trust by public servant, or
by banker, merchant or agent. In order to bring in application of said
provision, entrustment has to be proved. In order to sustain conviction
under Section 409, two ingredients are to be proved. They are :
(1) the accused, a public servant, or banker or agent was entrusted with
property of which he is duty bond to account for; and
(2) the accused has committed criminal breach of trust.
What amounts to criminal breach of trust is provided in Section 405 IPC.
Section 409 is in essence criminal breach of trust by a category of
persons. The ingredients of the offence of criminal breach of trust are : -
(1) Entrusting any person with property, or with any dominion over
property.
(2) The person entrusted (a) dishonestly misappropriating or converting
to his own use that property; or (b) dishonestly using or disposing of that
property or willfully suffering any other person so as to do in violation -
(i) of any direction of law prescribing the mode in which such trust is
to be discharged; or
(ii) of any legal contract made touching the discharge of trust.
The basic requirement to bring home the accusations under Section 405 are
the requirements to prove con-jointly (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 would generally afford useful
guidance in deciding whether in a particular case the accused had mens rea
for the crime. In response, learned counsel for the State of Karnataka has
submitted that the High Court analysing the evidence on record noticed
fallacies in the conclusions arrived at by the trial Court and, therefore,
has rightly held the accused guilty. The evidence of the magistrate who was
examined as PW-5 clearly shows that the accused was acting as a property
clerk and had custody as well as domain over the courts’ properties which
included the articles with which the present case is concerned. The High
Court has considered the similar stand. It was noticed that cogent and
reliable evidence was adduced to show that appellant was working as a
property clerk from 2.3.1979 to 6.6.1985 and that he was entrusted with the
courts’ properties and had domain over them including the articles 1 to 23.
It was the stand of the appellant that he did not work as a property clerk
after 2.2.1980. Such a stand has rightly been rejected by the High Court in
view of Awl’s evidence. It was noticed by the High Court that the
properties register was Exhibit P-l. On 10.1.1980 the appellant proceeded
on commuted leave for 25 days w.e.f. 4.2.1980 to 28.2.1980 to avail leave
travel concession. In the concerned office order there was no direction to
the appellant to hand over the charge of properties in the court property
room to a witness Harugon. When the appellant admitted that he had gone on
leave from 4.2.1980 to 28.2.1980 and as rightly held by the High Court
there is no material to show that after returning from leave the accused
had not assumed office, this plea is clearly untenable because as a normal
consequence after returning from leave the appellant is supposed to have
taken over as property clerk. That apart, there was ample material to show
that he was only maintaining Ex. P-l register even thereafter till 6.6.1985
and producing before Court MOS, as and when required.
Essentially the question is whether the analysis of the High Court in view
of the evidence on record is sustainable. We find that the factual aspects
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have been highlighted by the prosecution to show that accused was guilty.
The decision in Rabindra ’s case (supra) is of no assistance to the
accused-appellant because in that case there was no material to show any
mens rea apart from the fact that the entrustment itself was not fully
established. The accusations were not brought to the notice of the accused.
Additionally, his explanation as offered was not examined at all. Factual
scenario being different in the present case the conclusions arrived at in
the decision sought to be relied have no bearing so far as present case is
concerned, as the accusations have been fully established. The evidence of
PWs 1, 8 and 10 conclusively establish that accused-appellant was in-charge
of the properties and he could not either produce those articles or
properly account for them when he was asked to do so, as was obligated for
him.
In Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, AIR (1960)
SC 889, it was held as follows :
"To establish a charge of criminal breach of trust, the prosecution is not
obliged to prove the precise mode of conversion, misappropriation or
misapplication by the accused of the property entrusted to him or over
which he has dominion. The principal ingredient of the offence being
dishonest misappropriation or conversion which may not ordinarily be a
matter of direct proof, entrustment of property and failure, in breach of
an obligation, to account for the property entrusted, if proved, may in the
light of other circumstances, justifiably lead to an inference of dishonest
misappropriation or conversion. 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, even when a duty to account is imposed upon him but where he is
unable to account which is untrue, an inference of misappropriation with
dishonest intent may readily be made."
This case was considered in Rabindra Kumar’s case (supra). It was held that
proposition cannot be doubted. But the question is whether the explanation
is absolutely false. It is in that background, this Court held that the
accusations were not established. In the present case, the position is
totally different. No explanation, much less plausible has been given. The
High Court is, therefore, right in setting aside the order of acquittal so
far as the appellant is concerned. The appeal fails and is dismissed.