Vs. State of Maharashtra  Insc 893 (4 December 2006)
Arijit Pasayat & S.H. Kapadia
out of SLP (Crl.) No. 2639 of 2006) Dr. ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by a learned Single Judge of the
Bombay High Court, Nagpur Bench. By the impugned judgment the High Court while
setting aside the conviction of the appellant for offences punishable under
Sections 468, 477-A of the Indian Penal Code, 1860 (in short the 'IPC') and
Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act,
1947 (in short the 'PC Act') maintained the conviction for offence punishable
under Section 409 IPC. The trial court had convicted the appellant for offences
punishable under Sections 409, 468, 477-A IPC, Section 5(1)(d) read with
Section 5(2) of the PC Act.
custodial sentences were imposed along with fine.
facts in a nutshell are as follows:
appellant was working as Junior Engineer and was in-charge of execution of
construction of tanks at Kudwa, Dhakni and Mundipar in Gondia Sub Division.
This work was to be executed under the Employment Guarantee Scheme. The
appellant was assisted by four muster clerks to keep a track of persons
employed for the work of construction of these tanks.
7.1.1976 and l1.3.1976, same set of 21 labourers were shown to have been
engaged at one and the same time for construction of the irrigation tanks at Kudwa,
Dhakni and Mundipar. Payments were shown to have been made by the appellant,
but in reality no such payments were made. Bogus names were shown. The
investigation revealed that in all a sum of Rs.6,764.10 was misappropriated by
the appellant abusing his position as supervisor. Accused No.2 was a labourer
engaged and he was made to put his thumb marks on the muster rolls to show
receipt of monies by fictitious persons, who were shown to have been engaged
for the works.
the report, F.I.R. was registered and on completion of investigation, charge
sheet was sent up and trial was held in the Court of Special Judge at Gondia.
consideration of material placed before him, the learned Special Judge charged
both the accused of offences punishable under Sections 409, 467 and 468 read
with Section 109 IPC and Sections 5(1) (d) and 5(2) of the PC Act.
the accused pleaded not guilty, they were put on trial. In order to bring home
the guilt of the accused, prosecution examined 14 witnesses. Upon consideration
of evidence tendered before him, learned Special Judge acquitted accused No.2
of all offences and also acquitted the present appellant of the offence
punishable under Section 467 IPC. However, he convicted the appellant of the
other offences and sentenced him as aforementioned. Aggrieved thereby the
appellant has preferred this appeal.
noted above, the High Court held that prosecution had not been able to
establish commission of offences other than Section 409 IPC. Accordingly, the
conviction under that provision was maintained and custodial sentence of one year
and fine of Rs.1,000/- with default stipulation was maintained.
counsel for the appellant submitted that the prosecution has not established
the commission of offence punishable under Section 409 IPC. The essential
ingredients necessary to constitute that offence have not been proved.
submitted that the so called fake payment has not been established and reliance
was placed on a decision of this Court in Inderjit Singh and Ors. v. State of Punjab and Ors. (1995 Supp (3) SCC 289) to
contend that the accusations have to fail.
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
order to sustain a conviction under Section 409 IPC the prosecution is required
to prove that
accused, a public servant was entrusted with property of which he has duty
bound to account for,
accused had misappropriated the property.
the entrustment is admitted by the accused, it is for him to discharge the
burden that the entrustment has been carried out as accepted and the obligation
has been discharged.
above position was reiterated in Jagat Narayan Jha v. State of Bihar (1995 (Supp) 4 SCC 518).
not necessary or possible in every case to prove as to in what precise manner
the accused had dealt with or appropriated the goods. In a case of criminal
breach of trust, the failure to account for the money, proved to have been
received by the accused or giving a false account of its use is generally
considered to be a strong circumstance against the accused. Although onus lies
on the prosecution to prove the charge against the accused, yet where the
entrustment is proved or admitted it would be difficult for the prosecution to
prove the actual mode and manner of misappropriation and in such a case the
prosecution would have to rely largely on the truth or falsity of the
explanation given by the accused. In the instant case, there is no dispute
about the entrustment.
counsel for the appellant submitted that all through the accused had taken the
stand that the payments were not made by him directly but through the middle
men, who distributed the amount to the persons who were engaged.
plea has been elaborately dealt with by both the trial Court and the High
Court. It was the duty of the appellant to make payment. He cannot escape from
liability by saying that he had entrusted the job to someone else. It was found
by the trial Court and the High Court with reference to the evidence on record
that payments were shown to have been made to persons who were found to be
fictitious. PW8 - Arun Borikar is a Finger Print Expert in Finger Print Bureau
and was at the relevant time posted at Nagpur. He stated about his qualifications and expertise. He stated that he
had received 17 muster rolls and specimen impressions of left and right thumbs
of PWs Nos. 1, 7, 9, 13 and the two accused. After comparing the thumb prints,
he gave his opinion (Exhibit 55).
stated that the disputed prints A and A-1 to A-19 were not of any of the six
persons whose prints were submitted to him for examination, but were of one and
the same person. He found that prints in the muster rolls of Dhakni Tank at
Exhibits B-15, B-4 and B-16 were identical with the finger print of Amarsing Sohanlal,
that is the acquitted accused. In respect of the muster rolls of Kudwa tank, he
found that the finger prints at Exhibits C-1 to C-21 and C-1(a) and C-2(a) were
not identical with the specimen impressions of six persons named above, but
they were identical inter se, that is they were of the same person.
evidence of the village kotwal, who was examined as PW6 also shows that there
was no such person in the village to whom the appellant claimed to have made
payment. The Facts involved in Inderjeet's case (supra) are clearly distinguishable.
In that case the question was of tallying the thumb mark of the appellant with
the disputed thumb marks.
factual scenario of that case was entirely different.
at from any angle in view of the clinching evidence tendered by the prosecution
which has been analysed at great length by the trial Court and the High Court,
we find no scope for interference.
appeal, therefore, fails and is dismissed.