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PETITIONER: JIWAN DASS

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       26/02/1999

BENCH: M.B.Shah, G.B.Pattanaik

JUDGMENT:

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

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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

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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

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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@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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

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dismissed.   His bail bonds also stand cancelled and he must surrender to serve the balance period of sentence.