Som Narth Puri Vs. The State of
Rajasthan [1972] INSC 54 (15 February 1972)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
SHELAT, J.M.
KHANNA, HANS RAJ
CITATION: 1972 AIR 1490 1972 SCR (3) 497 1972
SCC (1) 630
CITATOR INFO :
APR 1972 SC2522 (8) R 1974 SC 794 (14)
ACT:
Penal Code, Indian (45 of 1860)--Section 405,
409--Criminal Breach of Trust--'Entrusted,' meaning.
HEADNOTE:
The appellant who was an employee of the
Indian Airlines Corporation was convicted under s. 409, Penal Code, and section
5(2) read with section 5 (1) (c) of the Prevention of Corruption Act, 1947. The
appellant's duty was to make reservations for the passengers. The practice was
that whenever the quota was full intending travellers were required to pay
trunk telephone charges for enabling the Corporation to obtain release of seats
from quotas allotted to other centers. The appellant who was in charge of this
arrangement, it was alleged, collected Rs. 184.90 towards trunk telephones
charges but actually deposited with the corporation only a sum of Rs. 44.90 and
misappropriated the balance. The modus operandi, it was alleged, was that he
would demand a higher, amount for Trunk Call charges than was likely to be
incurred and he would issue a correct receipt for this amount on behalf of the
corporation but after making the trunk call, he would alter the counterfoil
with the actual amount of trunk call charges. In the appeal to this Court it
was urged that since the prosecution case as disclosed by the evidence was that
the appellant had collected excess charges representing them to be actual
charges for trunk calls and not that any excess over the actual charges would
be returned to the appellant he could not be-convicted either under s. 5(2)
read with 5(1)(c) of the Prevention of Corruption Act or under s. 409 penal
code, because, the important ingredient, viz., entrustment of the amount was
absent.
Dismissing the appeal,
HELD : (i) The expression, 'entrusted in
section 409 is used in a wide sense and includes all cases in which property is
voluntarily handed over for a specific purpose and is dishonestly disposed of
contrary to the terms on which possession has been handed over. As long as the
accused is given possession of property for a specific purpose or to deal with
it in a particular manner, the ownership being in some person other than the
accused, he can be said to be entrusted with that property to be applied in
accordance with the terms of entrustment and for the benefit of the owner. It
may be that a person to whom the property is handed over may 'cc an agent of
the person to whom it is entrusted or to whom it may belong in which case, if
the agent who comes into possession of it on behalf of his principal,
fraudulently misappropriates the property, he is nonetheless guilty of criminal
breach of trust, because, as an agent he is entrusted with it. A person
authorized to collect moneys on behalf of another is entrusted with the money
when the amounts are paid to him, and though the person paying may no longer
have any proprietary interest, nonetheless, the person on whose behalf it was
collected become the owner as soon as the amount is handed over to the person
so authorized to collect on his behalf. [502 D] 498 The State v. Dahyalal
Dalpatram, A.I.R. 1960 Bom. 53; In re:
Ram Soonder Poddar & Ors. 1878 (2) Cal.
L.R. 515; In re :
Ramappa, (1911) 22 M.L.J. 112; in re :
Venkata Raghunatha Sastri, (1923)45 M.L.J. 133 and the, Crown Prosecutor v. J. Mclyer
and K. S. Narasimhachari, 69 M.L.J. 681, referred to.
(ii)In the present case the amounts for trunk
call charges were demanded on behalf of the Corporation and were paid to the
Corporation. The receipts in respect of the sums, were given on behalf of the
Corporation and it would be the Corporation that would be liable directly to
,the person who had paid this amount, if no trunk calls were made, or any
excess over the actual amount of the trunk call charges was charged by it. The
amount was not paid by passengers to the accused as such but to the corporation
and as soon as the receipt for the amount actually received from the passengers
was given by the accused on behalf of the corporation, he was entrusted with
that amount. His subsequent con.duct in falsifying the counterfoils and
fraudulently misappropriating the amount would make him guilty of criminal
breach of trust under s. 409 I.P.C., as also under section 5(2) read with
section 5(1)(c) of the Act. [604 E-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 101 of 1969.
Appeal by special leave from the judgment and
order dated April 16, 1969 of the Rajasthan High Court in S. B. Criminal Appeal
No. 558 of 1966.
A. S. R. Chari and S. B. Wad, for the
appellant.
K. B. Mehta, for the respondent.
The Judgment of the Court was delivered by
Jaganmohan Reddy, J. This is an appeal by special leave against the judgment of
the Rajasthan High Court. The accused was initially charged on three counts,
firstly, under section 5(2) read with section 5(1)(c) of the Prevention of
Corruption Act 1947 (hereinafter referred 'to as 'the Act'), secondly, under
section 409, I.P.C., and thirdly, under section 477A, I.P.C. Thereafter on
15-1-1964 another Special Judge charged him on two counts, namely, under
section 5 (2) read with section 5 ( 1) (c) and section 5 (2) read with section
5 (1) (w) of the Act. After the trial, the appellant was, however, convicted
under section 409, I.P.C. and section 5(2) read with section 5(1)(c) and (d) of
the Act and sentenced to rigorous imprisonment of 18 months and a fine of Rs.
250/- under-section 409, I.P.C. and 18 months' rigorous imprisonment, and a
fine of Rs. 250/- under section 5(2) read with sections 5(1)(c) and 5(1)(d) of
the Act. The sentences on both these counts were, directed to run concurrently.
The High Court, however, thought that the Special Judge had not recorded any
conviction under section 5(1)(d) of the Act and in that view confirmed the
conviction and sentence of the appellant of 18 months" rigorous
imprisonment on each of the counts, namely, under 499 section 409, I.P.C. and
section 5(2) read with section 5(1)(c) of the Act, but reduced the fine for
each of the offences from Rs. 250/- to Rs. 150/-.
The appellant was employed as a Traffic
Assistant in the Indian Airlines Corporation's office at Jaipur and his duty
was to make reservations of the passengers intending to go by air and issue
tickets. As it happens, when the quota of seats allotted to Jaipur is full,
intending travellers who request for accommodation would be required to pay
trunk telephone charges for enabling the Airlines Corporation to obtain release
of seats from quotas allotted to other centers. The practice of the Airlines
was to collect the approximate charges and issue a receipt therefore and if a
seat was available, the reservation would be confirmed and accommodation given
to the passengers if seats could be released from other centers for Jaipur. The
appellant who was incharge of these arrangements between 16-2-62 and 30-8- 62,
collected Rs. 184.90 towards trunk telephone charges but actually deposited
with the Airlines Corporation a sum of Rs. 44.91 and misappropriated the
balance of Rs. 139.99. The modus operendi followed by him, it is alleged, was
that he would demand a higher amount for Trunk Call charges than were likely to
be incurred and he would issue a correct receipt for those amounts on behalf of
the Airlines Corporation but after making the trunk call, he would alter the
counter-foil with the actual amount of trunk call charges. On the same day he
would make a daily return showing the actual amounts and deposit them with the Cashier.
A typical sample of the receipts given by him on behalf of the Airlines
Corporation is Exhibit 40 which is as follows INDIAN AIRLINES CORPORATION NEW
DELHI.
No. 354577 Station Jaipur. Date : 30-8-62.
Received with thanks from M/s. M/Travels,
Jaipur sum of Rupees Twenty three and forty nP, being the amount T/Call charges
to Udaipur and AMD for re-lease of seat.
for INDIAN AIRLINES CORPORATION.
Sd/- Cashier".
Rs. 23.40 On 31-8-62, one M.D. Singh of_the
Mercury Travel Agency, Jaipur complained to B.S. Gupta, Incharge of the Office
of the Indian Airlines Corporation at Jaipur that the appellant had 500
collected Rs. 23.40 for proposed trunk call charges from the Agency but made no
call and no seat was allotted to the passenger of the Mercury Travel Agency
even though one was available and that seat was given by B. S. Gupta to someone
else. B. S. Gupta questioned the appellant who then made; a confession of his
having collected the amount but not having made a call. After-making this
confession he immediately resigned his job. A preliminary inquiry was conducted
by the Area Manager who thereafter lodged the First Information Report. The
accused denied having collected the amounts or of having issued the receipts
and further stated that whatever amounts were; collected by him were paid in
the office of the Airlines everyday.
Both the Courts found on the evidence that
the appellant used to make trunk calls whenever he was on duty from the Indian
Airlines Corporation office at Jaipur for the release of seats and that he
would call for and receive trunk call charges from intending passengers. It was
further held proved that the appellant gave receipts Exhibited in the case
which were in his own hand-writing and signed by him;
and that it was he who realised the total sum
of Rs. 185/- which was entrusted to him and over which he, had a dominion in
his capacity as a public servant. We have already pointed out that the High
Court did not confirm the conviction of the appellant under section 5(2) read
with section 5(1)(d) on the assumption that the-said Special Judge had not
convicted the accused for that offence, and since there is no appeal by the
State against this part of the judgment, the contention on behalf of the State
that he was convicted under section 5(1)(d) has no merits and cannot be
sustained.
On behalf of the appellant it was urged
before the High Court that as the appellant had to fare a trial extending over
more than 3 years incurring enormous expenses for coming to and from Chandigarh
where he was practicing law and was also in Jail for some time, the benefit of
the Probation of Offenders Act should be given to him] This contention was
rejected because the provisions of that Art were inapplicable in view of his
conviction under section 409, I.P.C. As the offence of criminal breach of trust
under section 409, I.P.C. is punishable with imprisonment for life, the High
Court, in our view, was right because the provisions of section 4 are only
applicable to a case of a person found guilty of having committed an offence
not punishable with death or imprisonment for life. Apart from this reasoning,
section 18 of the Probation of Offenders Act makes, the provisions of that Act
inapplicable to are offence under sub-section (2) of section 5 of the
Prevention of Corruption Act.
On behalf of the appellant it is submitted by
the learned Advocate that the prosecution case as disclosed by the evidence was
that the appellant had collected excess charges from the passengers 501
representing them to be the actual charges for trunk calls and not that any
excess over the actual charges would be returned to them. In view of this
evidence, the appellant could not be convicted either under section 5(2) read
with section 5(1)(c) of the Act or under section 409, I.P.C.
because the important ingredient which is
entrustment of the amounts is absent. In order that any amount can be said to
be entrusted it should be lawfully made over, but in this case the appellant
obtained the amount by cheating and by the commission of an offence. If there
was no entrustment of the moneys to the appellant, he could not be convicted
either under section 409 or under section 5(2) read with 5(1)(c) of the Act and
is accordingly entitled to an acquittal on both these charges. In support of
this contention reliance has been placed on Surendra Pal Singh v.
The State(1), where a Bench of the Allahabad
High Court held that the amounts collected from cultivators by the Canal Amin
in excess of the amount actually due from them and misappropriated by him, did
not amount to an entrustment as he could not be a trustee of that money on
behalf of the cultivators, from whom he realised it because when they banded
over the money to the accused, they purported to surrender all their rights in
that money, nor could it be said that this money had become the property of the
Government at any stage for him to be considered a trustee on its behalf. This
decision was, however, disapproved in The State v. Dahyalal Dalpatram(2), by a
Bench of the Bombay High Court, a view with which the High Court agreed. In
that case the accused who was employed as a Talati in the Revenue Department,
was invested with the authority to collect land revenue and fines. He was
ordered to recover from the land-holders who had defaulted in paying the moneys
but having collected them be did not pay them into the Government Treasury as
required by the rules made under the Land Revenue Code. The accused was
convicted under section 409, I.P.C. On the question that when the accused
collected the amount as tax alleged to be due by the land-holder though the
liability whereof could not be enforced according to law. could it be said that
he was then entrusted with the money, the High Court after noticing that the
Allahabad High Court appears to have taken the view that a public servant
collecting the money claiming that it was, due to the State but which in fact
was not due to the State, could not be regarded as entrusted with the money
collected by him, held that that was not a necessary ingredient of section 405.
The learned Advocate sought to distinguish
this case on the ground that in the Bombay case there was a definite direction
to collect a specific amount and when that amount was collected there was
entrustment of that money which was lawfully collected, as such the accused was
rightly convicted. It was further contended that if looked at from the point of
view of the passengers from whom (1) A.I.R. 1957 All. 122. (2) A.I.R. 1960 Bom.
53.
502 trunk call charges were collected, they
had not entrusted money to the accused because they had parted with the
proprietary rights thereon and if viewed from the point of view of the Airlines
Corporation, the money collected did not be-come the property of the
Corporation and consequently there was no entrustment of it.
There can be no doubt 'that before a public
servant can be convicted of an offence under section 5(1)(c) or under section
409, I.P.C. the property which is said to, have been misappropriated must be
entrusted to him. Section 405 merely provides, whoever being in any manner
entrusted with property or with any dominion over the property, as the first
ingredient of the criminal breach of trust. The words 'in any manner' in the
context are significant. The section does not provide that the entrustment of
property should be by someone or the amount recieved must be the property of
the person on whose behalf it is received. As long as the accused is given
possession of property for a specific purpose or to, deal with it in a
particular manner, the ownership being in some person other than the accused,
he can be said to be entrusted with that property to be applied in accordance
with the terms of entrustment and for the benefit of the owner. The expression
'entrusted' in section 409 is used in a wide sense and includes all cases in
which property is voluntarily handed over for a specific purpose and is
dishonestly disposed of contrary to the terms on which possession has been
handed over. It may be that a person to whom the property is handed over may be
an agent of the person to whom it is entrusted or to whom it may belong in
which case if the agent who comes into possession of it on behalf of his
principal, fraudulently misappropriates the property, he is nonetheless guilty
of criminal breach of trust because as an agent he is entrusted with it. A
person authorized to collect moneys on behalf of another is entrusted with the
money when the amounts are paid to him, and though the person paying may no
longer have any proprietary interest nonetheless the person on whose behalf it
was collected becomes the owner as soon as the amount is handed over to the
person so authorized to collect of different High Courts in this country for
nearly a century, a few of which alone need be examined.
In the matter of Ram Sounder Poddar &
Ors.(1), a Deputy Magistrate convicted the accused under section 406, I.P.C.,
an offence over which he had jurisdiction, instead of under section 409, i.p.c.
which was cognizance only by the Court of Session. on revision the High Court
held that the proceedings were contrary to law and the Deputy Magistrate was
directed to commit the accused for trial by the Court of Session. It appears
that the accused who were charged were Treasury employees. One of the accused
(1) 1878 (2) al. L.R. 515.
503 was allowed to, write the Treasury Cash
Book which was the duty of the Treasurer. Taking advantage of it, he
misappropriated Rs. 16/- by scoring off the entry in the account book. In this
misappropriation he was assisted by the other accused who was employed to do
stamp work. While holding the trial to be without jurisdiction, it was observed
that section 409 does not as supposed by the Deputy Magistrate, require the
property in respect of which criminal breach of trust is committed, to be the
property of Government, but only requires that it should be entrusted to a
public servant in his, capacity as such public servant.
In re : Ramappa(1), the accused who was the
Superintendent of some Coffee Curing Works was convicted of criminal breach of
trust by misappropriating a large sum of money made up of amounts which he had
received from the Manager on the false pretense that they were required for
paying coolies who garbled coffee. One of the arguments urged against the
conviction was that the receipt of the money by false representation amounted
to an offence of cheating and that the subsequent appropriation of it by the
accused to his own use was not a criminal breach of trust as the criminal
intent was present at the time of the receipt of the moneys from the Manager.
Benson and Sundara Aiyar, J., while rejecting that argument, observed:
"When the accused received the money he
did so as a servant of the Company for the express purpose of using it for his
master's benefit in a particular way. He was, therefore, entrusted with the
money and his appropriating it to himself clearly amounts to criminal breach of
trust".
In Venkata Raghunatha Sastri(2), Spencer, J.,
held that where a person who had pledged promissory notes with another as serenity
for a loan dishonestly induced the latter to hand over the same to him by
pretending that he required the same for collecting money from his creditors
with the aid of which he would pay cash to the complainant, his act constituted
an offence of cheating punishable under section 420, I.P.C. and that when he
dishonestly disposed of the notes in violation of his contract with the pledgee
to use the money collected in paying off his debt, there was both entrustment
and dishonest misappropriation and that the conviction for the offence of
criminal breach of trust under section 406, I.P.C. was legal.
Both these cases were referred to in The
Crown Prosecutor v. J. McIver and K. S. Narasimhachari(3). The facts in this
case also were somewhat similar to those in Venkataraghunatha Sastri's case (4
) Madhavan Nair, J (as he then was) examined the meaning of the word
'entrusted' in section 406 and rejected a similar contention as was urged in
this case on behalf of the appellant that when the accused by deceiving the
complainant fraudulently and (1) (1911) 22 M.L.J. 112.
(3) 69 M.L.J. 681.
(2) (1923) 45 M.L.J. 133 (4) 45 M.L.J. 133.
504 dishonestly induced him to part with the
property in question, the offence of cheating was complete and that there is no
room for further holding that the accused have committed criminal breach of
trust also by their subsequent misappropriation of the property.
In the case before us, the practice which was
being followed by the Jaipur office of the Indian Airlines Corporation is
spoken to by M. U. Menon, P.W. 6, who was a Personal Assistant to the General
Manager of the National Engineering Industries Ltd., Jaipur. He says that on
16-2-1962 his General Manager had directed him to issue instructions to the
accounts branch for arranging for flight tickets by air for Delhi. He first
rang up the Indian Airlines Corporation about the air passage for eight persons
and received, a reply from that office that 8 tickets were not available at
Jaipur and they would try from Udaipur and Ahmadabad by trunk calls. After some
time the Indian Airlines Corporation people rang up telling him that tickets
can be arranged and he should end the money amounting to Rs. 410.50 which
included trunk call charges of Rs. 26.50. He thereupon sent a slip, Exhibit P-6
to the accounts department for further necessary action. There was no
cross-examination on behalf of the accused. Similarly Ganesh Singh, P.W. 3 who
is working for the National Engineering Indus' his people contacted Indian
Airlines tries Ltd., Jaipur said that when Corporation on telephone and
enquired about the fare etc.
they would ask for trunk call charges along
with the amount for tickets. This would be paid and in fact he pointed out to
the accused and said that he might be one of the persons whom he met at the
office and after he paid the amounts for the tickets and trunk call charges, he
would obtain a receipt and give it to the company. This evidence read with
other evidence which has been accepted by both the Courts would show that
whatever may have been the criminal in- tention of the accused, the amounts for
trunk call charges were demanded on behalf of the Indian Airlines Corporation
and were paid to the corporation. The receipts in respect of the sums were
given on behalf of the Corporation and it would be the Corporation that would
be liable directly to the person who had paid this amount, if no trunk calls
were made, or any excess over the actual amount of the trunk call charges was
charged by it. The amount was not paid by passengers to the accused as such but
to the Indian Airline.,, Corporation and as soon as the receipt for the amount
actually received from the passengers was given by the accused on behalf of the
Corporation, he was entrusted with that amount. His subsequent conduct in
falsifying the counter-foils and fraudulently misappropriating the amounts
would make him guilty of criminal breach of trust punishable under section 409,
I.P.C. as also under section 5(2) read with section 5(1)(c) of the Act.
There is, therefore, no merit in this appeal
and it is accordingly dismissed.
Appeal dismissed.
K.B.N.
Back
