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CASE NO.: Appeal (crl.)  1261 of 2006

PETITIONER: Mustafikhan

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 04/12/2006

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2639 of 2006)

Dr. ARIJIT PASAYAT, J.  

       Leave granted.

Challenge 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.   Different custodial sentences were imposed along with fine.

Background facts in a nutshell are as follows:

The 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.  Between 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.  After 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.

Upon 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

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Section 109 IPC and Sections 5(1) (d) and 5(2) of the PC Act.  Since 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.

As 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.

Learned 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.

It was 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.   

Learned counsel for the respondent-State on the other  hand supported the judgment of the High Court.

In order to sustain a conviction under Section 409 IPC  the prosecution is required to prove that (a) the accused, a  public servant was entrusted with property of which he has  duty bound to account for, (b) the accused had  misappropriated the property.   

Where 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.

       The above position was reiterated in Jagat Narayan Jha  v. State of Bihar (1995 (Supp) 4 SCC 518).

       It is 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.

       Learned 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.   This plea has been elaborately dealt with by both the trial

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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).  He 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.

       The 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.   The factual scenario of that case was entirely different.

       Looked 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.

       The appeal, therefore, fails and is dismissed.