of Himachal Pradesh Vs. Karanvir  Insc 307 (12 May 2006)
Sinha & P.P. Naolekar S.B. Sinha, J.
State of Himachal Pradesh is in appeal before us aggrieved by the judgment and
order dated 24.9.1997 passed in Criminal Revision No.149/1994, whereby and whereunder
the revision application, filed by the respondent herein, against the judgment
and order dated 1.12.1994 passed by the Sessions Judge affirming a judgment of
conviction and sentence passed by the Chief Judicial Magistrate, Sirmaur District
at Nahan, convicting the respondent for commission of an offence punishable
under Section 409 of the IPC and sentencing him to undergo simple imprisonment
for a period of six months and to pay a fine of Rs.1,000/-, has been allowed.
respondent was a Post Master at Chhapang, within the Police Station Pachhad in
the District of Sirmaur. One Rajbir Singh (PW-3), uncle of the
respondent-accused, was at the relevant time working in the Government High School, Ramadhon. He had deposited a sum of Rs.8,000/- with the
respondent-accused for purchase of National Savings Certificates.
forms were also filled up by said Rajbir Singh and a receipt acknowledging the
receipt of the said amount was issued to him. Although more than a month had
passed but the said Rajbir Singh was not handed over any National Savings
Certificate by the respondent. He, therefore, made enquiries with the postal
authorities both at Rajgarh and at Nahan, whereupon he came to learn that no
such National Saving Certificates had been issued. He thereafter made a
complaint in that behalf, with the postal authorities. The postal authorities
entrusted the matter to one Shri Brijpal Thakur (PW-4) for conducting an
enquiry. The respondent having come to learn of initiation of the said enquiry,
deposited a sum of Rs.4200/- in the Post Office on 30.11.1989. A further
deposit of Rs.4,000/- was made by him on 11.12.1989. It is not in dispute that
the excess amount of Rs.200/- was deposited by the respondent on 30.11.1989 by
way of interest.
First Information Report was lodged on 27.6.1990 at Police Station, Pachhad.
During the investigation, specimen and admitted writings of the respondent were
taken and sent to the handwriting expert for comparing with his writings and
signatures on the receipt. The expert opined that the questioned writing and
the signatures on the deposited documents tallied with the admitted signatures
and writings of the respondent. The leaned Chief Judicial Magistrate, as
noticed hereinbefore, found the respondent guilty of commission of an offence
punishable under Section 409 IPC and sentenced him to undergo simple
imprisonment for a period of six months. A fine of Rs.1,000/- was also imposed
appeal preferred by the respondent before the learned Sessions Judge, Sirmaur,
also came to be dismissed. In the revision application filed by the respondent,
the High Court held that as the prosecution had not been able to prove
'misappropriation' on the part of the respondent, the judgment of conviction
and sentence was unsustainable.
short question which arises for consideration in this appeal is as to whether
having regard to the facts and circumstances of this case, the prosecution has
been able to prove that the respondent misappropriated the said amount.
405 of the IPC reads as under:
405 "Criminal breach of trust.-
being in any manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or converts to his own use that property,
or dishonestly uses or disposes of that property in violation of any direction
of law prescribing the mode in which such trust is to be discharged, or of any
legal contract, express or implied which he has made touching the discharge of
such trust, or wilfully suffers any other person so to do, commits 'criminal
breach of trust'.
Illustration (e) appended to the said provision in this connection be noticed.
a revenue-officer, is entrusted with public money and is either directed by
law, or bound by a contract, express or implied, with the Government, to pay
into a certain treasury all the public money which he holds.
dishonestly appropriates the money. A has committed criminal breach of
trust." The respondent was a Post Master. He was holding an office of
public trust. The complainant who was a teacher entrusted the amount to the
respondent for the purpose of purchasing National Savings Certificates. As soon
as the amount was received by the respondent on behalf of the postal
authorities, it became public money. It was required to be utilised for the
purpose for which the same was handed over to the respondent.
High Court opined that the entrustment was proved. The fact that till
29.11.1989, the amount of Rs.8,000/- deposited by the complainant with the
respondent, had not been utilised for the purpose for which the same had been
handed over to him also is admitted. When an enquiry came to be made by Shri Brijpal
Thakur (PW-4), the respondent deposited the said amount in two installments
along with a sum of Rs.200/- by way of interest. The respondent, therefore,
being a public officer had the requisite knowledge that the amount carried
interest. On 16.7.1989, the postal savings certificates came to be issued. The
respondent therefore thought himself liable to pay the said amount with
interest, so as to reimburse to the complainant the amount to which was
entitled by way of interest for depositing the said amount.
on 30.11.1989, he did not deposit the entire amount. The entire amount came to
be deposited by him on 11.12.1989. We, therefore, fail to understand as to on
what basis the learned Judge opined that the second ingredient of Section 405
of the IPC, i.e. misappropriation of the amount by the respondent-accused had
not been proved. The High Court, in our considered view, completely misdirected
itself in opining that it was obligatory on the part of Rajbir Singh (PW-3) or Brijpal
Thakur (PW-4) to state in their complaint that the accused committed criminal
misappropriation with intention to utilise the amount for his personal use.
very fact that the respondent retained with him the entrusted amount is not
disputed. If he did not utilise the amount for the purpose for which the same
had been deposited, an offence must be held to have been committed.
K. Sarada Devi, learned counsel appearing on behalf of the respondent would
submit that no material was brought on record by the prosecution to show as to
how the respondent had utilized the amount. In our opinion, the same was not
necessary. In view of the admitted fact, we are of the opinion that it was for
the respondent himself to prove the defence raised by him that the entire
amount had not been paid to him by the complainant.
learned Judge had rejected the said defence.
actual manner of misappropriation, it is well settled, is not required to be
proved by the prosecution. Once entrustment is proved, it was for the accused
to prove as to how the property entrusted to him was dealt with in view of
Section 405 of the IPC. If the respondent had failed to produce any material
for this purpose, the prosecution should not suffer therefor.
learned Trial Judge as also the learned Sessions Judge arrived at concurrent
findings of fact. The High Court, in our opinion, misdirected itself in passing
the impugned judgment while exercising its revision jurisdiction. [See N. Bhargavan
Pillai & Anr. vs. State of Kerala, (2004)
13 SCC 217].
contention has further been raised by Mrs. Sarada Devi, that no question was
put to the respondent while he was being examined under Section 313 of the Code
of Criminal Procedure, with a view to give him an opportunity to explain
whether the amount was given to him for his personal use or he converted the
money for his personal use. We are afraid that such contention cannot be
accepted. While examining the accused under Section 313 of Cr.P.C., the Trial
Court is merely required to ask such question which has been brought on record
as against the respondent.
respondent in fact had admitted the entire prosecution case for all intent and
purport. The entire evidence which was adduced on behalf of the prosecution was
made known to the accused. In his statement under Section 313 Cr.P.C., he
accepted that he had received a sum of Rs.8,000/- from the complainant and he
had deposited the said amount together with interest, in two installments. He
has merely reiterated his defence, as noticed hereinbefore, that the
complainant had not paid to him the entire sum of Rs.8,000/-, which has not
been accepted by the Trial Court. We are, therefore, of the opinion that the
High Court committed a manifest error in arriving at a finding that there has
been infraction of the mandatory provisions of Section 313 Cr.P.C.
the aforesaid reasons, the impugned judgment cannot be sustained and it is set
question, however, would now arise as to whether in the facts and circumstances
of this case, the respondent should be sent back to jail. The respondent is
aged about 60 years. The offence is said to have been committed 15 years back.
He was arrested by the police. He might have been in custody for some time.
regard to the peculiar facts and circumstances of this case and keeping in view
the fact that the respondent had deposited the entire amount before the First
Information Report was lodged, we are of the opinion that the interest of
justice would be subserved if any substantial punishment is not awarded.
Accordingly, we impose a fine of Rs.4,000/- upon the respondent, which will be
apart from the amount of fine of Rs.1,000/- imposed by the learned Trial Judge.
It is directed that in default of the payment of the said amount, the
respondent shall undergo simple imprisonment for three months. The appeal is