Kumar Sanwatia Vs. The State of Bihar & Anr  Insc 429 (2 September 2003)
Raju & Arijit Pasayat. Arijit Pasayat, J.
appeal is at the instance of the informant who set law in motion against
respondent no.2-Gautam Bose along with two others for alleged commission of
offence punishable under Section 409 read with Section 34 of the Indian Penal
Code, 1860 (for short 'IPC').
of the prosecution was that on 23rd August, 1982
the appellant went to the State Bank of India, Jharia Branch for taking two banks drafts of Rs.75,000/- each. His
servant Indradeo Ram was also with him. The appellant had carried a sum Rs.1,50,200/-
with him out of which Rs.75,100/- was of Mahabir Bhandar of which appellant was
owner, while balance Rs.75,100/- was of Swastik Bhandar belonging to brother of
appellant. The total amount was handed over to accused- Ganauri Sao for the
purpose of counting at the instance of accused- Gautam Bose – the Head Cashier.
The cash peon told him that he would count the money, and return the bag in
which the money was carried at 2.00 p.m. Informant-appellant handed over cash
vouchers duly filled in to Amit Kumar Banerji an officer of the bank and
returned to his shop on being told that the drafts will be handed over around 2.00
1.00 p.m. the peon of the bank named Jagdish
came to his shop and told him that the money handed over by him was missing
from the cash counter. On hearing this, both the informant and his brother
rushed to the bank. They were told that a complaint had already been lodged by
the Manager of the bank regarding missing of money. By the time the appellant
and his brother reached the bank, police had already arrived. Ganaori admitted
that he was counting the money handed over by the informant. When he went
outside for a short time, during that time the money had been taken away by
some one. The informant filed a written report before the police officer
(Ex.P-3) in the premises of the bank and on the basis of this the case was
instituted and investigation undertaken.
completion of investigation, charge sheet was placed and charges were framed
against Gautam Bose, Ganaori Sao, and Jagdish Ram under Section 409 read with
Section 34 IPC. Accused persons pleaded innocence. They took the stand that the
case was falsely instituted to get money from the bank through the insurance
witnesses were examined to substantiate the prosecution case.
Trial Court placing reliance on their evidence found that only respondent
no.2-Gautam Bose and Ganaori Sao were guilty of offences punishable under
Section 409 IPC read with Section 34 IPC and were sentenced to undergo
imprisonment for two years each. The said accused persons filed two appeals
before the Additional Sessions Judge, Dhanbad, who in Crl. Appeal no.145/1986
and Crl. Appeal no. 151/1986 held that accusations have not been brought home
because there were many infirmities in evidence and there was doubt as regards
the manner of entrustment for bringing in application of Section 409 IPC. The
matter was carried in revision before the Patna High Court by the
informant-appellant. By the impugned judgment, learned Single Judge held that
though the money appears to have been handed over, it has not been established
by credible and cogent evidence when the money were really missing. It,
however, recorded that fact of handing over of Rs.1,50,200/-, and missing of
money from the cash counter. But it is not proved beyond reasonable doubt from
the evidence on record that actually the cash was entrusted to Ganaori Sao at
the instance of Head Cashier-Gautam Bose, though money was missing from bank
premises and from the cash counter. It was held that the possibility of theft
of the money cannot be ruled out. Since the informant had filed suit for
recovery of the amount from the bank he could pursue it. Due to paucity of
evidence on the point of entrustment, case under Section 409 was held to be not
made out. Against the said judgment of the High Court, this appeal has been
counsel for the appellant stated that when it is admitted that money was
missing from the cash counter of the bank at the bank premises, and information
had been lodged by the Manager alleging theft of the amount and commission of
offence under Section 380 IPC, the Trial Court, First Appellate Court and the
High Court were not justified in holding that there was paucity of material as
regards the manner of entrustment with reference to Section 409 IPC. It was
submitted that the language of the provisions made it clear that whatever be
the manner of entrustment, if the factum of entrustment is established, nothing
more is required to be further established.
spite of notice, respondent no.2 has not entered appearance.
counsel appearing for the State of Bihar submitted that the stand adopted by the appellant is adopted by it.
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:
accused, a public servant, or banker or agent was entrusted with property of
which he is duty bond to account for; and
accused has committed criminal breach of trust.
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: -
Entrusting any person with property, or with any dominion over property.
The person entrusted
misappropriating or converting to his own use that property; or
using or disposing of that property or willfully suffering any other person so
as to do in violation –
any direction of law prescribing the mode in which such trust is to be
any legal contract made touching the discharge of trust.
basic requirement to bring home the accusations under Section 405 are the
requirements to prove con-jointly
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.
instant case even if it was proved as contended by learned counsel for the
appellant, that money was entrusted which fact is borne out by the admitted
case about missing of money from the cash counter of the bank, one factor which
needs to be decided is whether the accused had dishonestly misappropriated or
converted to his own use the property entrusted or dishonestly used or disposed
of that property. As presented by the prosecution, the money was taken away
from the cash counter. It is not the case of prosecution that money which was
given to the accused-Gautam Bose and the cash peon to obtain bank drafts was
taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an
intervening situation, the disappearance of the cash due to theft by somebody
else the bank drafts could not have been prepared and handed over to the
appellant. Even if there is loss of money, the ingredients necessary to
constitute criminal breach of trust are absent. If due to a fortuitous or
intervening situation, a person to whom money is entrusted is incapacitated from
carrying out the job, that will not bring in application of Section 405 IPC or
Section 409 IPC, unless misappropriation, or conversion to personal use or
disposal of property is established. Unfortunately, the courts below have not
looked at the issues from these vitally relevant angles. The inevitable
conclusion is that accused persons cannot be convicted under Section 409 IPC.
This, however, will not stand in the way of the appellant getting such relief
as available in law otherwise by pursuing a suitable remedy.
appeal is dismissed with the aforesaid observations.