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CASE NO.: Appeal (crl.)  904 of 1996

PETITIONER: Kailash Kumar Sanwatia                           

RESPONDENT: Vs. The State of Bihar and Anr.                              

DATE OF JUDGMENT: 02/09/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

The 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’).  

Case 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 â\200\223 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 p.m.   Around 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.  

On 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 company.

Ten witnesses were examined to substantiate the prosecution case.   The Trial Court placing reliance on their evidence found that only  respondent no.2-Gautam Bose and Ganaori Sao were guilty of offences

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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 filed.

Learned 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.  

In spite of notice, respondent no.2 has not entered appearance.   Learned counsel appearing for the State of Bihar submitted that the  stand adopted by the appellant is adopted by it.  

Section 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:

(1)     the accused, a public servant, or banker or agent was  entrusted with property of which he is duty bond to account  for; and  (2)     the accused has committed criminal breach of trust.

       What 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: -

(1)     Entrusting any person with property, or with any dominion  over property. (2)     The person entrusted (a) dishonestly misappropriating or  converting to his own use that property; or (b) dishonestly  using or disposing of that property or willfully suffering  any other person so as to do in violation â\200\223 (i)     of any direction of law prescribing the mode in which such  trust is to be discharged; or (ii)of any legal contract made touching the discharge of trust.

       The basic requirement to bring home the accusations under Section

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405 are the requirements to prove con-jointly (1) entrustment and (2)  whether 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.

In the 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.   

       The appeal is dismissed with the aforesaid observations.