Jiwan Dass
Vs. State of Haryana [1999] INSC 51 (26 February 1999)
M.B.Shah,
G.B.Pattanaik PATTANAIK,J.
Both
these appeals are directed against the Judgment of a learned Single Judge of
Punjab & Haryana High Court in Criminal Revision No. 245 of 1992. By the
impugned Judgment, the High Court has upheld the conviction and sentence
against the two appellants under Section 409 of the Indian Penal Code for
having committed criminal breach of trust in respect of 4300 litres of diesel
oil.
The
prosecution case in nutshell is that both the accused persons were posted in
the office of Government Heat Treatment Centre at Bahadurgarh and on 23.2.82,
they were authorised to bring 10,000 litres of light diesel oil from the Indian
Oil Corporation, Delhi. For that purpose the letter of
authority as well as the bank draft to the tune of Rs.28,275.83 were given to
them. The said two accused persons deposited the bank draft with Indian Oil
Corporation and took delivery of 10,000 litres of light diesel oil but
ultimately the quantity of diesel was found to be less by 4300 litres, the
value of which was Rs.12,160/-. It is the prosecution case that both the
accused persons committed the embezzlement of oil in question. The prosecution
examined as many as eight witnesses to establish the case against the accused
persons. The accused persons also examined two defence witnesses. The learned
Sub Divisional Judicial Magistrate, who tried this case by his Judgment dated
25.7.91 came to hold that the prosecution has been able to establish the
charges beyond reasonable doubt against both the accused persons and
accordingly convicted them under Section 409 IPC and sentenced them to undergo
rigorous imprisonment for three years and imposed a fine of Rs.3000/-, in
default to further undergo imprisonment for three months. The accused persons
preferred appeal before the Sessions Judge and the learned Sessions Judge
affirmed the conviction and sentence passed by the learned Magistrate and
dismissed the appeal. The matter was then carried to High Court in revision and
the High Court by the impugned Judgment having dismissed the said revision, the
present appeals have been preferred.
Mr.
R.K. Jain, the learned Senior Counsel, appearing for accused Jiwan Dass,
appellant in Criminal Appeal No. 990 of 1995, contended that the bank draft in
question which was handed over to accused Jiwan Dass having been duly deposited
with the Indian Oil Corporation and thereafter the diesel in question having
been entrusted to accused Mittar Pal Yadav, and there being no entrustment of
the said diesel to accused Jiwan Dass, which is the gravamen of the charge in
the present case, the courts below committed error in convicting accused Jeewan
Dass under Section 409 IPC. Mr. Jain also further contended that Jeewan Dass
being a senior officer had been sent with the bank draft as the amount was a
heavy amount. Any dereliction on his part in not himself taking delivery of the
diesel but the diesel having been entrusted to accused Mittar Pal Yadav, Jiwan Dass
might have been negligent in discharging official duty but that would not
tantamount to commission of offence under Section 409 IPC and, therefore, the
conviction and sentence passed against Jiwan Dass is liable to be set aside.
Mr. Ranbir
Yadav, the learned counsel, appearing for Mittar Pal Yadav, on the other hand
submitted that accused Mittar Pal Yadav was a junior officer and he acted at
the behest of accused Jiwan Dass and in-fact signed the documents and the
register without even verifying the contents thereof and, therefore, offence if
any, was committed by Jiwan Dass and not by Mittar Pal Yadav. Mr. Ajay Siwach,
the learned counsel, appearing for the State of Haryana on the other hand
contended that both the accused persons having been sent with the money with
the direction to bring diesel and both of them having proceeded, both of them
are liable for the commission of offence and the courts below, therefore, were
justified in convicting them under Section 409 IPC. The learned counsel also
contended that Jiwan Dass being the person who was authorised to take delivery
of diesel, cannot be exonerated of his liability even factually, delivery was
taken by Mittar Pal Yadav inasmuch as in eye of law it must be held that
entrustment was to Jiwan Dass. The learned counsel further contended that even
if it is held that there has been no entrustment of diesel to Jiwan Dass but
yet it must be held that Jiwan Dass held the dominion over the diesel and,
therefore, he has committed an offence under Section 409 IPC for shortage of
the diesel oil.
In
view of the rival submissions, the question that arises for consideration is
whether both the accused persons or any one of them committed the offence under
Section 409 IPC. At the outset it must be stated that there was no charge under
Section 34 and both the accused persons were charged under Section 409 IPC
alone. To bring home a charge under Section 409, what is necessary to be proved
is that the accused is a public servant and in such capacity he was entrusted
with the property in question or with dominion over it and that he committed
criminal breach of trust in respect of it. The necessary elements constituted
in the offence must be strictly proved by the prosecution. It is true that
prosecution need not prove the actual mode of misappropriation and once
entrustment of or dominion over the property is established, then it would be
for the accused to explain as to how the property was dealt with.
In
Exhibit PE, on the basis of which the Police registered the case and started
investigation it was specifically mentioned that Jiwan Dass and Mittar Pal Yadav
were authorised to take 10,000 litres of light diesel oil from Indian Oil
Corporation and a bank draft amounting to Rs.28,275.83 had been given to Jiwan Dass,
which draft he deposited. Thereafter they took delivery of 10,000 litres of
light diesel oil but on actual measurement it was found to be less by 4300 litres.
On an inquiry from Indian Oil Corporation, it was reported that delivery of
10,000 litres of diesel had been given and in token thereof Mittar Pal Yadav
has put his signature. It was further stated in the said letter that Jiwan Dass
on 2.3.82 gave a writing that he would make up the deficiency. On the basis of
the aforesaid letter and after completion of investigation, the Police filed Challan
and the Magistrate took cognizance and charge that was framed on 26.3.84 was to
the following effect:
"That
on 26.2.82 in the area of Bahadurgarh, you being a servant in the employment of
Govt Heat Treatment Centre, Bahadurgarh, as Superintendent and Store Keeper
respectively and in such capacity entrusted with a bank draft of Rs.28,275.83
for purchase of 10,000 litres of high diesel oil and you committed criminal
breach of trust in respect of 4300 litres of high diesel oil worth Rs. 12,158.60
and thereby committed an offence punishable under Section 409 of the IPC which
is within the cognizance of this court." Thus the gravamen of the charge
is commission of criminal breach of trust in respect of 4300 litres of diesel
oil. That the bank draft in question was duly deposited with the office of the
Indian Oil Corporation and there is no dispute over the same. The question that
arises for consideration, therefore, is whether the diesel oil which was
in-fact found to be less by 4300 litres can be said to have been entrusted to Jiwan
Dass or Jiwan Dass had any dominion over the same. It has been elicited from
the evidence of PW-1, Senior Technical Officer at Bahadurgarh that accused Mittar
Pal Yadav was authorised by the establishment to take delivery of oil from Shakurbasti
Depot of Indian Oil Corporation and his attested signatures were in the office
of the Indian Oil Corporation. The said witness in further cross examination
also stated:
"I
have sent accused Mittar Pal Yadav because his signatures were there and he
could take delivery." PW-4, the Depot Manager of the Indian Oil
Corporation stated in his evidence:
"I
have seen the cash memo Exhibit PB, which bears my signature which was given to
Mittar Pal Yadav, who had signed in my presence." In view of the aforesaid
positive evidence, both oral and documentary, the conclusion is irresistible
that delivery of diesel oil had been given to accused Mittar Pal Yadav, who in
token thereof, had signed not only on the cash memo but also on the register itself.
In the absence of any other material produced by the prosecution it is
difficult for us to hold that either there was any entrustment of the diesel to
accused Jiwan Dass or he had any dominion over the same.
Mr.
Ajay Siwach, the learned counsel appearing for the State of Haryana however
very strenuously argued that Jiwan Dass being a senior officer and having been
deputed with the bank draft for the purpose of taking delivery of the oil and
the letter of authority being in favour of Jiwan Dass, it must be held that the
entrustment of diesel had been made to Jiwan Dass or at least he had the
dominion over the same. Mere fact that Jiwan Dass had taken the bank draft and
that an authorisation had been given in his favour by his superior officers to
take delivery of the diesel, cannot be the basis for coming to a conclusion
that in-fact the diesel had been entrusted to said accused Jiwan Dass or he had
dominion over the same. When in point of fact it is established beyond
reasonable doubt that delivery had been taken by accused Mittar Pal Yadav and
in token of the same he had signed the relevant papers and register, Jiwan Dass
being a senior officer may be responsible for dereliction of his duty in not
taking delivery of the diesel himself. But on that score, it cannot be said
that in-fact the prosecution has been able to establish that diesel had been
entrusted to Jiwan Dass and there has been shortage of the said diesel to the
tune of 4300 litres. In our considered opinion the gravamen of the charge being
misappropriation of 4300 litres of diesel oil which was found to be in shortage
while measuring the diesel that had been brought and the said diesel having
been delivered to Mittar Pal Yadav, who had signed the relevant documents in
token thereof, the entrustment to or dominion over the diesel by Jiwan Dass has
not been established and as such the prosecution has not been able to establish
the charge under Section 409 IPC beyond reasonable doubt as against accused Jiwan
Dass in respect of the shortage of diesel to the tune of 4300 litres. It is no
doubt true that Jiwan Dass appears to have given in writing on 2.3.82 that he
would be completing the quantity of 10,000 litres of oil but that writing
neither can be held to be a confession or admission of the guilt on the part of
the accused Jiwan Dass, nor that can form the basis of convicting the accused Jiwan
Dass for an offence under Section 409 IPC. In a prosecution for offence of
criminal breach of trust if there is absence of legal and independent evidence
with regard to the entrustment, then it would be improper either to put a
question with regard to the entrustment to the accused and if put and an answer
is obtained, partially admitting entrustment, the same does not establish the
case of entrustment. In the aforesaid premises and in view of our conclusion
that the prosecution has failed to establish entrustment of diesel to accused Jiwan
Dass, the conviction of Jiwan Dass under Section 409 IPC cannot be sustained
and we, accordingly set aside the conviction and sentence against the accused Jiwan
Dass and acquit him of the charge levelled against and Criminal Appeal No. 990
of 1995 is accordingly allowed and his bail bonds stand discharged.
So far
as accused Mittar Pal Yadav is concerned, as has been discussed earlier, there
is conclusive oral and documentary evidence
that it is he, who took delivery of 10,000 litres of diesel from the Depot of
Indian Oil Corporation and the said diesel on actual measurement being found to
be in short, no explanation has been offered by him except telling that he did
so at the behest of the superior officer Jiwan Dass. In view of his signature
available on several documents, indicating the fact that he took delivery of 10,000
litres of diesel, the explanation offered by the said accused Mittar Pal Yadav
that he had signed being told by Jiwan Dass cannot be accepted and, therefore,
the prosecution case about embezzlement of 4300 litres of diesel has been
established beyond reasonable doubt against accused Mittar Pal Yadav. We,
therefore, do not find any justification in interfering with the conviction and
sentence passed against the accused Mittar Pal Yadav and consequently, Criminal
Appeal No. 991 of 1995 stands dismissed. His bail bonds also stand cancelled
and he must surrender to serve the balance period of sentence.
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