Full Judgment Text
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PETITIONER:
NARENDRA PRATAP NARAIN SINGH AND ANR.
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT03/04/1991
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1991 AIR 1394 1991 SCR (2) 88
1991 SCC (2) 623 JT 1991 (2) 86
1991 SCALE (1)564
ACT:
Constitution of India, 1950: Article 136-Concurrent
findings of fact-interference only in exceptional
circumstances-Findings perverse, pretermitting manifest
errors and glaring infirmities-Interference-Justified.
Indian Panel Code, 1860: Sections 405, 409, 467 and 471
Criminal breach of trust and misappropriation-Government
seed store-Established practice of credit sales to village
level workers- Government circulars prohibiting such sales-
Issued from time to time-Yet practice continued-Persons in
charge followed the established practice-Whether committed
any offence and liable to punished.
HEADNOTE:
During 1964-65 the first appellant was incharge of a
seed store attached to a block Development Office. The seed
store was catering to the needs of cultivators. The first
appellant was charged with an offence of breach of trust,
punishable under Section 409 IPC on the allegation that he
prepared forged bills to the tune of Rs.1591.04 in the names
of some village level workers as if they were supplied
certain articles on credit in disregard of the Government’s
instructions prohibiting credit sale.
Later, the second appellant took charge of the seed
store relieving the first appellant. He was also charged
with the offence of breach of trust under Section 409 IPC in
respect of certain articles and misappropriation of a sum
Rs.450.28.
In addition to the charges under section 409 IPC, both
the appellants were also charged with offence punishable
under section 467 and 471 IPC.
Before the Trial Court, the first appellant pleaded
that he bills were genuine and that the materials were
actually supplied to the village level workers on credit. He
denied the charges of defalcation and also making bogus
entries in the records. The second appellant disputed the
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charge of misappropriation and stated that he received part
payment in respect of the bill in question and had deposited
the said amount in Government treasury.
The trial Court convicted both the appellants and
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sentenced them to undergo various terms of imprisonment for
offences under Sections 467 and 471 IPC as also a fine of
Rs.500 for the offence under section 409 IPC.
On appeal, the High Court set aside the conviction of
the appellants under sections 467 and 471 IPC, and upheld
the conviction under section 409 IPC; but reduced the fine
to Rs.250. The Respondent-State has not preferred any
appeal.
In the present appeals, the appellants challenged the
legality of their conviction under section 409 IPC.
The first appellant contended that the long established
practice of credit sale was continuing till 1969-70 despite
Government circulars to stop the practice and so in 1965, he
was not at fault in making credit sales. It was also
contended that there was no motive on his part to
misappropriate the goods. The second appellant contended
that he issued only receipts and realised the money and in
the absence of any conspiracy having been proved, he was not
guilty of any misappropriation of money.
Allowing the appeals, this Court,
HELD : 1. The long established practice of credit sale
of seeds, fertilisers, pesticides etc. from the Government
Agriculture Seed Stores continued for some time, at least
till the last circular issued on 26.7.68. The repeated
issuance of the circulars indicate that inspite of these
circulars, the practice of credit sale was in vogue. A close
scrutiny of the evidence and records show that the superior
officers, inspite of the circulars, did not take a very
serious view of the credit sale to the cultivators. In fact,
by circular dated 2.8.67, the Director of Agriculture while
impressing the prohibition of credit sale, gave only a
warning that the erring officials would be held ‘personally
responsible to pay the outstanding amount’. The appellants
could not be mulcted with the criminality of breach of trust
for following the established practice of credit sale
through village level workers. [100G-H; 101A-B]
2. Since the High Court has set aside the conviction of
the appellants
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under sections 467 and 471 IPC, the prosecution case of
foreign the bills and receipts and using them as genuine, is
‘not true’. Also the fact that the State has not filed any
appeal necessarily follows that the explanation given in
defence of the appellants that the bills and cash receipts
were not bogus but genuine has been accepted by the High
Court. As such the prosecution did not satisfactorily prove
even the temporary misappropriation of the amount in
dispute. [101B-D]
3. Admittedly the first appellant handed over the
charge to the second appellant on 2.9.65 and till then the
first appellant was incharge of both the seed stores. The
first appellant submitted his compliance report on 3.9.65.
Hence the second appellant who had not taken charge of the
seed store till 2.9.65 could not be held liable for an
offence under Section 409 IPC in respect of the amount
covered by the bills in question which were all prepared
between 29.7.65 to 12.8.65 i.e. earlier to the second
appellant’s taking over charge. The finding of the Trial
Court that both the appellants have committed breach of
trust by preparing false bills has to be rejected and the
resultant conclusion based on such finding is liable to be
set aside. [101G-H; 102A-B]
4. Both the appellants cannot be jointly charged on
the allegation that on 4.7.64 they being the public servants
of the seed store committed breach of trust, since
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admittedly they were working at different places and not at
the same seed store. Also the prosecution has not
satisfactorily established the main ingredient of
‘dishonesty’ against either of the appellants, even though
at the worst, it may be said that the first appellant was
guilty of dereliction of his duty in not collecting the
outstanding amount by taking appropriate steps. When the
conviction recorded by the Trial Court under Section 467 IPC
is set aside by the High Court as against which no appeal is
preferred by the State, the second appellant cannot in any
way be fastened with the criminality of misappropriation for
issuing the cash receipts in question. A close examination
of the entire evidence and documents do not reveal any
material worth mentioning for jointly fastening both the
appellants with the offence of criminal breach of trust
punishable under Section 409 IPC. There is also not evidence
that there was any conspiracy, pre-concert or concert of
minds of the appellants or any pre-arranged plan between the
two appellants to commit the offence or offences complained
of. [103B-D]
5. Though this Court normally does not interfere with
the concurrent findings of facts except in exceptional
circumstances, this is a fit case for interference since
both the Courts below instead of dealing with the intrinsic
merits of the evidence of the witness, have acted preversely
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by summarily disposing of the case, pretermitting the
manifest errors and glaring infirmities appearing in these
cases. [103E-F]
[Having regard to the undertaking of the appellants not
to claim back wages, the Court observed that in case the
appellants, pursuant to their acquittal, are reinstated in
service by the State Government they will not be having any
claim for back wages from the date of suspension upto the
date of their reinstatement.]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
664 & 665 of 1979.
From the Judgement and Order dated 8.5.1979 of the
Allahabad High Court in Criminal Appeal Nos. 158 & 157 of
1977.
R.K.Garg and M.M.Kashtriya for the Appellants.
Dalveer Bhandari for the Respondent.
The Judgement of the Court was delivered by
S. RATNAVEL PANDIAN, J. These two criminal appeals are
preferred by the appellants, namely-Narendra Pratap Narain
Singh and Puran Singh who were arrayed as accused Nos. 1 and
2 before the Trial Court, against the judgements dated
8.5.1979 rendered in Criminal Appeal Nos. 158 and 157 of
1977 on the file of Allahabad High Court, Lucknow arising
out of Sessions Trial Nos. A-210 and 228 of 1974 whereby the
High Court by a common judgement and order set aside the
convictions and sentence under Sections 467 and 471 IPC but,
however, upheld their conviction under Section 409 IPC and
reduced the substantive sentence of imprisonment to the
period already undergone and the sentence of fine from
Rs.500 to Rs.250 and in default to undergo rigorous
imprisonment for six months in each of the cases.
The material facts as unfolded from the records can be
stated thus:
There was a Block Development Office in the district of
Sultanpur known as Dhanpatganj Block to which a seed store
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known as Semrauna seed store was attached. The seed store
was to cater the needs and requirements of the cultivators
for seeds and fertilisers etc. During 1964-65, the first
appellant was incharge of that seed store. On
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2.9.65, he was relieved by the second appellant on transfer
from Kurebhar.
According to the prosecution, the first appellant in
his official capacity was entrusted with fertilisers,
pesticides, seeds etc. which were meant to cater the needs
of the cultivators within Semrauna area. In 1965, there were
several village level workers. It is said that on 29.7.65,
the first appellant prepared forged bills in the names of
some village level workers (hereinafter referred to as VLWs)
bearing bill Nos. 57, 59, 60, 61, 62 and 64 of book No. 7767
as if the VLWs were supplied with articles of Agricultural
Depertment on credit , the total amount of which being
Rs.1591.04 and thereby committed breach of trust, punishable
under Section 409 IPC. The indictment against the second
appellant is that he being a public servant of the said
Agriculture Department committed breach of trust of the
articles mentioned in bill Nos. 11, 17 and 18 of book no.
7767 and misappropriated a sum of Rs.450.26. Apart from the
above charges leveled against each of them, they were
individually and collectively charged for offences
punishable under Section 467 and 471 IPC.
The defence of the first appellant was that all those
bills were not fictitious and bogus but were genuine and
that the materials were supplied to the VLWs as reflected in
the concerned bills. He denied the charge of defalcation and
also making bogus entries in the records. He further stated
that on transfer, he relieved the second appellant at
Kurebhar but was holding dual charge of both Semrauna and
Kurebhar simultaneously till the second appellant took
charge of Semrauna area and that he used to supply
fertilisers, seeds etc. to the village workers on credit on
the basis of the long established practice and under the
orders of the superiors. The defence of the second appellant
was that he received the part payment relating to bill No.
11 and deposited the said amount in Government treasury and
that he had not misappropriated any amount. The Trial Court,
repelling their defence, convicted both the appellants under
all the charges and sentenced them to various terms of
imprisonment with the direction that all the substantive
sentences shall run concurrently. In addition to the
sentence of imprisonment, a fine of Rs.500 was imposed for
the conviction under Section 409 IPC.
As the High Court has now set aside the conviction of
the appellants under Section 467 and 471 IPC and as the
State has not preferred any appeal as against that
acquittal. We are not called upon to deal with the case
relating to those two charges, Hence, this appeal is
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confined only with regard to the legality of the conviction
of these two appellants under Section 409 IPC.
The learned Judge of the High Court has disposed of the
appeals in a very summary manner confirming the conviction
of the appellants under Section 409 IPC stating thus:
‘‘......... I have been taken through the evidence
on record. All the village level workers concerned
were examined by the prosecution and their
statements show that criminally misappropriated
amounts were recovered from them by the appellants
but no fertiliser was issued to them. There is no
infirmity in the statements of these witnesses.
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Their statements satisfactorily make out an
offence under Section 409 IPC against two
appellants in both the cases............. I am,
therefore, of the opinion that the conviction of
the two appellants ordered by the Trial Court
under Section 409 IPC is justified.’’
By these two appeals, the appellants challenge the
correctness of their conviction. Mr. R.K. Garg, the learned
senior counsel appearing on behalf of the appellants
contended, inter alia, stating that though the Government
had instructed that credit sales from the seed stores be
discontinued, yet the long established practice was
continued and in fact the Government was also well aware of
this position and that it was the reason why as late as
2.8.67, the Government had been repeatedly issuing circulars
inviting the attention of the employees concerned to stop
the practice of credit sales and warning that any official
or officer issuing will be held responsible to pay the
outstanding amount and, therefore, in such circumstances
there could not be any case of misappropriation in any form
since from the very beginning, the first appellant had been
stating that credit sales had been made. According to the
learned counsel, there could not be any motive to
misappropriate these goods belonging to the Agricultural
Department when such goods were available in the open market
at cheaper rates and that when the first appellant had no
land in District sultanpur. It has been further urged that
it is amply proved from the evidence of the prosecution
witnesses that credit sales had continued till 1969-70 and
that the village level workers used to take goods from the
seed stores on credit after giving receipts and used to
distribute the same to the farmers according to their needs
and necessity and the money was to be realised later on.
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The handing over the charge by the first appellant, it
is said, could not be done before 2.9.65 because he was
asked to take charge at Kurebhar without he being relieved
at Semrauna and hence he had to work at both the seed stores
from 18.6.65 to 2.9.65.
Coming to the case of the second appellant, it was
contended by the learned counsel that the second appellant
issued only receipts and realised money and hence in the
absence of any conspiracy having been proved, he could not
be guilty of any misappropriation of money.
Lastly, it has been submitted that at the worst, the
first appellant if at all found guilty would be guilty of
breach of Government instructions which breach would not in
any way fasten him with criminal liability and that the High
Court without discussing the evidence in the proper
perspective has disposed of both the appeals on mere
speculation, conjectures and surmises and as such the
judgements are liable to be set aside.
The fact that there had been a practice of credit sales
of seeds, fertilisers, pesticides etc. from the Government
Agricultural Seed Stores is not in dispute. While it was the
practice, a circular letter No. IA-4390/Dues-129 dated
2.8.67 was issued by Director, Agriculture, Uttar Pradesh,
Lucknow to all Drawing and Disbursing Officers in the
Agriculture Department with copies endorsed to all Zonal
Deputy Directors of Agriculture, Project Officer, Aligarh,
Functional Deputy Directors of Agriculture and Horticulture,
the Development Officer, Lucknow and all sections of the
Directorate of Agriculture, U.P. which letter reads thus :
‘‘From the progress report of recovery of
‘Current’ dues, it has been observed that the seed
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store dues are mounting year to year it goes to
mean that the commodities purchased from 95-
Capital outlay are still sold and credit otherwise
the dues should not increase in this office
circular letter No.IA-7250/Dues-129 dated
21.10.1964 and circular No.4934/Dues 29.7.1965 it
was made clear that the practice of credit sales
should be stopped and on your visits to seed
stores you should see that there was no credit
sales and take suitable action against official
and officer responsible for such sales. It appears
that these instructions have not been followed
vigorously. Government has taken serious exception
to the practice of credit sales despite their
orders stopping this practice.
95
It is therefore, impressed again that credit sales
of articles from the Government Agricultural seed
stores is strictly prohibited and any official or
officer issuing stores or authority sign their
issue on credit be held personally responsible to
pay the outstanding amount. At the time of handing
over charge, all credit sales be a seed store
Incharge should be treated as shortage and
recovery effected from him. Suitable action
including assessment of monetary responsibility,
should also be taken against supervising officials
and officers who do not report credit sales
detected on their visits to seed stores to higher
authorities or who fail to recover the amounts
from these who sold commodities on credit at their
own. A list of credit sales, if any should
invariably be attached to the charge certificates
to be sent to the higher officer(s) for
examination, record and taking action.
It may be once again emphasized that serious
action will be taken against those who permit or
over look credit sales in defiance of Government
Orders.
OFFICER OF THE DISTRICT AGRICULTURE OFFICER FAIZABAD.
No.1478/IV-Herti.General 67-68 Dated Sept. 29,1967.’’
A copy of this letter was forwarded with an
endorsement, reading ‘‘to all Block Development Officers and
Seed store Incharges of Faizabad District Officers with the
remark that contents of above circular letter may please be
brought to the notice of all the field staff of yours block
working under you for strict observance. These instructions
should be adhered in all respect in regard to sale and
supplies of Horticultural Commodities viz. plants, seeds
etc. and the orders should be noted by all concerned’’.
Thereafter, the Directorate of Agriculture, U.P. issued
another circular No. IA 3762/Dues-129(ii) dated 26th July
1968 pointing out that the orders issued under various
circulars viz. Nos. IA-7259/Dues-129 dated 31.10.1964, No.
IA-4934/Dues dated 29.7.1965 and No. IA-4390/Dues-120 dated
2.8.1967 should be followed carefully, which circular of
1968 reads thus;
‘‘3. It is again emphasized that credit sale of
articles from all Agricultural institutions if
strictly prohibited. In case
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any credit sale is made from the Agricultural seed
store/Horticulture institutions, this is very
serious irregularity that needs prompt and severe
action. Since inspite of orders such
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irregularities are being committed, it is
necessary to keep a watch over them, A quarterly
list of such credit sales, showing full details
together with the name of person responsible for
the irregularity should invariably be sent to his
office with your own comments regarding
punishment. If any item of credit sale is omitted
from the quarterly list and the same is detected
later an entry on account of such omission will be
made in the Character Roll of the Supervisory
Officer concerned. All inspecting officers on
visits to seed stores and buffer godown and other
institutions should examine the store ledgers and
bill books to ensure that no credit sales have
been made and in case some such sales have been
made take action as indicated above.
4. It may please be kept in view that the receipts
and recoveries under the head 95 Capital outlay
should equal to the expenditure incurred
thereunder. in case the receipts and recoveries
fall short in comparison to the expenditure, the
future allotments of funds will be reduced
accordingly and the drawing and disbursing officer
responsible for drawing funds from 95 capital
outlay called upon to explain the irregularity and
short fall in recovery.
5. The above instructions should be brought to the
notice of all concerned under a registered cover
for strict compliance and the quarterly report for
the quarter ending June 1968 submitted by 15.8.68.
Please acknowledge receipt of this letter
Sd/-
R.R.Agarwal,
Director’’
The copy of the above circular was forwarded to all
Functional Deputy Directors of Agriculture and Horticulture
and Jute Development Officer, Lucknow and District
Agriculture Officers and Superintendent Govt. Gardens for
information and necessary action.
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A cursory reading of both the circulars shows that
inspite of the circulars directing the practice of credit
sales to be stopped, in reality the long established
practice of credit sales was continued. Even after the
circular dated 2.8.67, the circulars were not strictly
adhered to and this necessitated the issue of circular
dated 26.7.68. It seems that due to the practice of credit
sales, the seed store dues were mounting year by year and
that the Government took a very serious view of the
continuance of credit sales and issued the circular dated
27.6.68. As we have pointed out albeit, the case of the
first appellant is that the old practice of credit sales was
continued and that he in fact sold the articles to the VLWs
and that none of the bills was bogus and they were not
dishonestly used as genuine. Similarly, the second appellant
has denied the charges. Now the High Court has set aside the
convictions of the appellants under Sections 467 and 471 IPC
and the State has not preferred any appeal against this part
of judgement acquitting the appellants of these two charges
and, therefore, it has to be concluded that the charges of
forging valuable security and using them as genuine have to
be held not proved.
The first charge in Criminal Appeal No. 664 of 1979
arising out of STA No. A-210 of 1974 reads that these
appellants on or about 29th July 1965 and 12th August 1965
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committed breach of trust of articles mentioned in bill Nos.
57, 59, 60, 61, 62 and 64 of book no. 7767. The following
table will give the particular amount relating to each bill,
said to have been misappropriated:
Date No. of bills Amount
29.7.65 and 12.8.65 57 138.00
’’ ’’ 59 318.86
’’ ’’ 60 495.94
’’ ’’ 61 357.48
’’ ’’ 62 155.26
’’ ’’ 64 125.50
-------
1591.04
Thus, the total amount alleged to have been
misappropriated by the appellants under the first charge if
Rs.1591.04. This amount admittedly
98
have been deposited by the first appellant, NPN Singh. The
Trial Court in its judgement in Sessions Trial No.A-210 of
1974 has pointed out in more than one place about the
repayment of the amount by deposit by the first appellant
towards the six bills in question based on the evidence of
Add. DAO (Ag.) examined as PW-5 as follows :
‘‘He conceded that the money of these six bills in
question; 57, 59, 60, 61, 62 and 64 has been
deposited before the C.I.D. Investigation
commenced.’’
In yet another portion of the judgement, it is stated
thus :
‘‘In this case, no bill is outstanding as all
payment were made before investigation by he
C.I.D. This accused N.P.N. Singh himself admitted
to have deposited moneys for these bills nos.57,59
to 62 and 64’’.
As borne out from the records, the payments with regard
to the questionable bills made between 1.9.65 to 29.6.66
were as follows :
S.No Bill No. Amount Date and Amount paid
1. 57 138.00 19.12.65 Rs. 96.40
29.7.65/12.8.65 14.2.66 Rs. 41.40
----------
Rs.138.00
----------
2. 59 318.86 19.12.65 Rs.282.06
29.6.66 Rs. 36.80
----------
Rs.318.86
----------
3. 60 495.94 19.12.65 Rs.495.94
4. 61 357.48 19.12.65 Rs.185.48
6.1.66 Rs.172.00
---------
Rs.357.48
----------
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5. 62 155.26 18.12.65 Rs.155.26
6. 63 125.50 1.9.65 Rs. 125.50
The above payments clearly establish that there is no
outstanding amount towards any one of the bills by 29.6.66
PWs 1 to 3 (VLWs) have unanimously testified that they did
not purchase anything from the first appellant on credit and
also did not receive these bills in question and have further
deposed that they did not make payments as shown in the cash
receipts prepared by the second appellant. On the contrary,
the specific case of the appellant is that none of the bills
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or cash receipts is either false, fictitious or bogus and
they are all genuine bills and receipts.
In this connection, it may be noted that the Block
Pramukh, i.e. PW-6 made the complaint Exh. Ka 16 dated
23.3.66 against the District Agriculture Officer to the
Director of Vigilance complaining of the irregularities and
illegalities as having been committed by the then
Agriculture Officer, Sultanpur, The Vigilance Chairman
referred the matter to the Government and thereupon the CID
was directed to make an enquiry into the matter. PW-8, the
Deputy Superintendent, Anti-Corruption, CID who was the then
Inspector, CID made the enquiry under the orders of the
State government and commenced his investigation on 13.7.67
By the time the investigation started as shown earlier, the
entire amount covered by the questionable bills had been
paid and there was no outstanding. A question may arise as
to whether there was any temporary misappropriation of the
amount from 29.6.65 till the amount was repaid on 29.6.66
and whether the bills in question were forged by the first
appellant with a view to screen himself from his misdeeds.
One of the factors which weighed with the Trial Court
for holding that these bills were bogus, was the absence of
the signature of any of the VLWs in any of the bills. The
first appellant has attempted to show that the practice of
credit sale to the VLWs was in prevalence and the amount
subsequently recovered from the cultivators would be
adjusted. The appellants under the first charge are
indicated with an offence of criminal breach of trust under
Section 409 IPC. Section 405 defines ‘criminal breach
of trust’. The essential ingredients of Section 405 are :
(1) The accused must be entrusted with property or
dominion over property :
100
(2) The person so entrusted must use that property or
(b) dishonestly use or dispose of that property or
wilfully suffer any other person to do so 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 such trust.
Vide Om Prakash Gupta v. State of U.P., [1957] SCR 423
and C.M.Narayan v. State of Travancore-Cochin, AIR 1953 SC
479. We do not like to swell this judgment by citing all the
decisions on this aspect.
In the present case, the entrustment or dominion over
the property of the seed stores was not in dispute indeed
there could be none. The essential questions that follow
are; first, whether the first appellant had dishonestly
misappropriated or converted the property entrusted to him
to his own use or dishonestly used or disposed of that
property in violation of any direction of law prescribing
the mode in which such trust is to be discharged; secondly
whether the second appellant was also a privy to the alleged
misappropriation; thirdly whether both the appellants forged
false bills and cash receipts and then fraudulently or
dishonestly used such documents as genuine; and fourthly
whether the appellants in their capacity of public servants
dishonestly misappropriated or converted that property to
their own use or willfully suffered the Department by doing
any act in violation of the directions, thereby making
themselves liable to be punished for the aggravated form of
criminal breach of trust under Section 409 IPC. The
expression ‘dishonestly’ is defined under Section 24 of the
Indian Penal Code. It is true that the series of circulars
issued by the Directorate of Agriculture have laid down
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certain directions prescribing the mode in which such trust
was to be discharged.
Notwithstanding such circulars, it appears that the
long established practice of credit sale of seeds,
fertilisers, pesticides etc. from the Government Agriculture
Seed Stores continued for sometime least till the last
circular issued on 26.7.68. The repeated issuance of the
circulars indicate that inspite of these circulars, the
practice of credit sale was in vogue. A close scrutiny of
the evidence and records show that the superior officers
inspite of the circulars did not take a
101
very serious view of the credit sale to the cultivators. In
fact, by circular dated 2.8.67, the Director of Agriculture,
U.P. while impressing the prohibition of credit sale, gave
only a warning that the erring officials would be held
‘personally responsible to pay the outstanding amount’. We,
in the above circumstances, feel that the appellants could
not be mulcted with the criminality of breach of trust for
following the established practice of credit sale through
VLWs. Since the High Court has set aside the conviction of
the appellants under Sections 467 and 471 IPC, holding
"There is nothing on record to show that any such document
was forged by the appellants.
........ No such using of any forged document was done
by the appellants ..... their conviction under Section 467
and 471, IPC is not justified", the prosecution case of
forging the bills and receipts and using them as genuine, is
to be held to have been found to be ‘not true’. As stated
supra, the State has also not filed any appeal against the
order of acquittal under changes 467 and 471 1pc.It
necessarily follows that the explanation given in defence of
the appellants that the six bills in question and cash
receipts were not bogus but genuine has been accepted by the
High Court. Under these circumstances, the prosecution
cannot be said to have satisfactorily proved even the
temporary misappropriation of the amount in dispute. In
fact, before the Trial Court, it was contended that there
has not been any dishonest misappropriation of the property
entrusted to the appellant, but that contention was repelled
by the Trial Court for the reasons shown in its judgement
which reasons, in our considered opinion, are not convincing
in view of the peculiar facts and circumstances of this
case. The High Court has not at all discussed the legal
question of dishonest misappropriation as contemplated under
Section 405 IPC but has summarily disposed of the case
without deeply going into the question of facts or law.
The charge under Section 409 is levelled against both
the appellants. In our view, this charge against both the
appellants cannot be sustained for the reasons to be
presently mentioned.
The then D.A.O. Sultanpur passed the transfer order of
certain officials inclusive of these two appellants by his
order dated 9.5.65 whereunder the first appellant was
transferred from Semrauna to block Kurebhar vice Puran Singh
(second appellant) and the latter from Kurebhar to Semarauna
vice N.P.N. Singh, the first appellant. It is not in
dispute that the first appellant handed over the charge to
the second appellant on 2.9.65 and till then the first
appellant was incharge
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of both the seed stores situated in Semrauna and Kurebhar.
The first appellant submitted his compliance report on
3.9.65 which is Exh. Ka-15. If it is so, how the second
appellant who had not taken charge of seed store of Semrauna
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till 2.9.65 could be held to be liable for an offence under
Sec. 409 in respect of the amount covered by the bills in
question i.e. bill Nos. 57, 59 to 62 and 64 which were all
prepared between 29.7.65 to 12.8.65 i.e. earlier to the
second appellant joining the block of Semrauna. Hence the
finding of the Trial Court that both the appellants have
committed breach of trust by preparing false bills has to be
rejected and the resultant conclusion made on such finding
is liable to be set aside.
In Criminal Appeal No.665 of 1979 arising out of
Sessions Trial No. 228 of 1974, the first charge reads that
both the appellants on 4.7.64 in their capacity as public
servants and being incharge of the seed store, Semrauna
committed breach of trust of the goods shown in bill Nos.
11, 17 and 18 of book No.7767 to the value of Rs.450.26. In
that case also there were charges under Section 467 IPC
(three counts). We are not concerned of the offence under
Section 467 as the appellants now stand acquitted in this
appeal also under those charges. The evidence now adduced
by the prosecution discloses that the first appellant
prepared the fictitious and bogus bill Nos.11, 17 and 18
dated 4.7.64 for Rs.186.71, Rs.132.45 and Rs.155.46
respectively- all totaling to Rs.480.26-which are the
subject matter of the case under Section 409 IPC, and that
the said amount of Rs.480.26 was misappropriated by the
first appellant and that when the matter came up to light,
he started making payments by paying Rs.76 on 14.4.66 and
Rs.27.60 on 7.8.66 towards bill. No.11, and left an
outstanding amount of Rs.376.66 and that thereafter no
payment was payment and the recoveries were made lateron on
2.12.69. It is further stated that the second appellant
after taking charge from the first appellant on 2.9.65 made
the entries of payments said to have been made on 14.4.66
and 7.8.66. The second appellant had admitted that he
received the payment towards bill No.11 and deposited the
same amount in Government treasury and that as he did not
oblige the CID Inspector by making statement as per his
choise , he is roped into this criminal offence. The first
appellant states in his defence that the gram ‘sewaks’(i.e.
VLWs) concerned made only part payment and the balance of
Rs.376.58 was realized from his salary on 1.12.69 and the
said amount was deposited in the State Bank of India,
Faizabad on 2.12.69 under challan No.99. The Trial Court has
convicted the second appellant on the ground that the second
appellant knowingly that the bills were forged by the first
appellant, received the payment and prepared the
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receipts Exh. Ka 4 and Ka 5 for bill No. 11 of book No.7767
and thereby made himself liable for the commission of breach
of trust. This charge cannot be sustained both in law and
facts for the reasons to be mentioned. Admittedly, the
first appellant was incharge of the block at Semrauna till
2.9.65. According to this charge, the offence is said to
have been committed on 4.7.64 when the second appellant was
working in the block of Kurebhar and, therefore, both the
appellants cannot be jointly charged on the allegation that
on 4.7.64 they being the public servants of the seedstore of
Semrauna committed the breach of trust. Secondly, the
prosecution has not satisfactorily established the main
ingredient of ‘dishonestly’ against any of the appellants,
even though at the worst, it may be said that the first
appellant was guilty of dereliction of his duty in not
collecting the outstanding amount by taking any appropriate
steps in that regard. When the conviction recorded by the
Trial Court under Section 467 is set aside by the High Court
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as against which no appeal is preferred by the State, the
second appellant cannot in any way be fastened with the
criminality of misappropriation by issuing the cash receipts
in question. A close examination of the entire evidence and
documents do not reveal any material, worth mentioning for
jointly fastening both the appellants with the offence of
criminal breach of trust punishable under section 409 IPC.
Further, there is no evidence that there was any conspiracy,
preconcert or concert of minds of the appellants or any pre-
arranged plan between the two appellants to commit the
offence or offences complained of.
Though this Court normally does not interfere with the
concurrent findings of the fact except in exceptional
circumstances, we for the discussion made above fell that
this is a fit case for interference at the hands of this
Court since both the Courts below instead of dealing with
the intrinsic merits of the evidence of the witnesses, have
acted perversely by summarily disposing of the case,
pretermitting the manifest errors and glaring infirmities
appearing in these cases.
In the result, both the appeals are allowed and the
conviction and sentences awarded by the High Court are set
aside and the appellants are acquitted.
Before parting with the judgment, we would like to
observe that during the course of the hearing, it was
submitted on behalf of the appellants that in case of
acquittal and consequent re-instatement in service, the
appellants would not claim their back wages. The appellants
have now filed two separate affidavits stating that they
would not
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claim back wages during the period they remained under
suspension and later under termination form service.
Based on the undertaking of the appellants not to claim
back wages and considering the facts and circumstances of
the case, we would like to observe that in case the
appellants, pursuant to their acquittal, are reinstated in
service by the State Government unless for some other
reason, they, although ordinarily entitled for back wages,
will not be having any claim for the back wages from the
date of suspension upto the date of reinstatement.
G.N. Appeals allowed.
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