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PETITIONER: MADANLAL

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 05/04/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BACHAWAT, R.S.

CITATION:  1967 AIR 1590            1967 SCR  (3) 439  CITATOR INFO :  D          1968 SC 709  (14)  RF         1973 SC2204  (12)

ACT: Indian  Penal Code, 1860 (Act 45 of 1860), ss. 120B,  196(2) and 409-Officer authorised his clerk to receive and disburse moneys-Moneys  not  paid to persons  concerned-Clerk  admits receipt  but  alleges  handing  over  to  officer-Value   of admission-Both charged for conspiracy and criminal breach of trust-Officer  acquitted-If  clerk could  be  convicted  for criminal breach of trust-Sanction not obtained-If conviction for criminal breach of trust vitiated.

HEADNOTE: J  had  authorised  the  appellant a  clerk  under  him,  to withdraw moneys from Bank for payments to different persons. J,  discovering  that the moneys were not  paid  to  persons concerned, lodged a report.  The appellant admitted to  have withdrawn  the  moneys, but stated that he had  handed  them over  to  J,  and  made  entries  in  the  register  showing disbursement  at J s instance, and J had initiated them.   J was  charged under s. 409 and the appellant under  ss.  409, 465,  477A and 120-B I.P.C. The Trial Court  convicted  both under  ss. 120-B and 409 but the Sessions Judge acquitted  J and  convicted  the appellant under s. 409 only.   The  High Court,  too, maintained the appellant’s  conviction  holding that  the  moneys  having been admittedly  received  by  the appellant, the burden of proof was upon him to show what  he had  done  with  them and there being no  evidence  that  he handed  them  over to J, except his bare allegation  he  had failed  to discharge that burden.  In appeal to this  Court, the   appellant  contended  that  (i)  the  case   proceeded erroneously as if the appellant had to prove his case beyond reasonable doubt that he had handed over the moneys to J and a reasonable doubt could have been raised in the prosecution evidence  if  the document called for by the  appellant  had been  produced and his application for their production  had not  been rejected; (ii) it was not his duty as a  clerk  to receive  these moneys and that he had only received them  at the instance of J; (iii) the charge as to criminal breach of trust  against  the appellant and J being one under  s.  409 read  with s. 120-B and there being no charge under  s.  409

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simplicitor  a conviction under s. 409 only was  not  valid; (iv)  the trial suffered from misjoinder of charges in  that there  were  six  items  of  moneys  in  respect  of  which_ misappropriation was alleged and three entries in respect of which  falsification  of accounts was  charged  against  the appellant; and (v) though he was charged under s. 120-B  and s.  477-A  no sanction tinder s. 196-A(2)  of  the  Criminal Procedure Code was obtained and, therefore, the entire trial was vitiated. HELD:The appeal must be dismissed. (i)There  was  no question of the  appellant  raising  any reasonable  doubt  in  view of his  admission  that  he  had received  the  moneys.   There  was  no  substance  in   the contention  that  if  the documents had  been  produced  the appellant  could  have made out a reasonably  probable  case that he had handed over the moneys to J. [444A-B] (ii)There was evidence that the appellant not only used  to receive  moneys but also used to disburse them.  Whether  it was  done  by him as part of his duties would clearly  be  a matter of evidence, which cannot be gone into in this  Court as it was not raised in the High Court.  J 440 authorised  the appellant to draw and receive the moneys  in question  far  the express purpose of payment  to  different parties.  There was, therefore, entrustment to the appellant of the said moneys for -an express purpose. [444D, F] Budha  Lal  v. State of Rajasthan, Cr.  A. No. 156  of  1962 decided on 27th January[1965], referred to. (iii)If  the  charge of conspiracy to  commit  criminal breach  of  trust  is followed by a  substantive  charge  of criminal  breach  of trust in pursuance of  such  conspiracy there is nothing to prevent the court convicting an  accused under  the  second charge even if the prosecution  fails  to establish conspiracy.  In any event, there was no  prejudice caused  to him as he was aware that there was a  substantive charge under s. 409 against him. [444H-445B] Kizhakkeppallik  Moosa  v.  State, A.I.R.  1963  Kerala  68, disapproved. Willie  Slaney v. State of Madhya Pradesh, [1955]  2  S.C.R. 1140, referred to. (iv)The  appellant  did  not at  -any  earlier  stage  take objection  to  the charges under ss. 409 and  477-A  on  the ground that he was likely to be embarrassed in his  defence. He  has also not shown that any prejudice was caused to  him and that being so this contention also must fail. [445D] (v)Though  the charge under s. 120-B required sanction  no such  sanction was necessary in respect of the charge  under s.  409.  At the most, therefore, it can be argued that  the Magistrate  took illegal cognizance of the charge  under  s. 120-B as s. 196(2) prohibits entertainment of certain  kinds of  complaints  for  conspiracy punishable  under  s.  120-D without the required sanction.  The absence of sanction does not prevent the court from proceeding with the trial if  the complaint  also  charges a co-conspirator of  the  principal offence  committed  in pursuance of the  conspiracy  or  for abatement by him of any such offence committed by one of the conspirators under s. 109 of the Penal Code.  The fact  that sanction was not obtained in respect of the complaint  under s. 120-B did not vitiate the trial on the substantive charge under  s. 409.  No prejudice could be said to have  resulted in view of the appellant’s confession. [447C-F] Abdul  Mian  v. The King, A.I.R. 1951  Pat.  513,  Govindram Sunder  Das  v. Emperor, A.I.R. 1942 Sind.  63  and  Nibaram Chandra  Bhattacharyya  v. Emperor, A.I.R.  1929  Cal.  754, referred to.

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Sukumar Chatterjee v. Mosizuddin Ahmed, 25 C.W.N. 357.  Syed Yawar Bhakat v. Emperor, 44 C.W.N. 474, Ram Pat v.  Emperor, (1962)  64  P.L  ’R. 519 and Mohd.  Bachal  Abdulla  v.  The Emperor, A.I.R. 1934 Sind. 4, approved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 116  of 1964. Appeal  by special leave from the judgment and  order  dated December 20, 1963 of the Punjab High Court in Criminal Revi- sion No. 824 of 1963. K.Baldev Mehta, G. D. Gupta and Indu Sani, for the appel- lant. Bikramjit Mahajan and R. N. Sachthey, for the respondent. 441 The Judgment of the Court was delivered by Shelat,  J.  In  1961  Ravi Datt  Joshi  was  the  Assistant District Inspector of Schools at Kamal and the appellant was then  working  under,  him as a  clerk.   Between  March  to December  1961,  Joshi  authorised  the  appellant  to  draw certain  amounts  from  the State  Bank  of  India,  Karnal. Accordingly,  on  March  11, 1961, the  appellant  drew  Rs. 979.12  for payment to M/s.  Joti Pershad Gupta & Sons.   On March 31, 1961, he drew a further sum of Rs. 1449.38 out  of which  Rs.  1404  were to be paid to the  Indian  Red  Cross Society.   He made an entry in the cash book showing  as  if that amount was paid to the said Society and got that  entry initialled  by Joshi.  On July 3, 1961, he encashed  a  bill for  Rs.  424,  the amount being payable  to  two  teachers, Ishwar  Datt and Chand Ram.  The appellant made an entry  in the  acquittance roll showing as if he had paid Rs.  200  to Chand  Ram.  On November 15, 1961 he received Rs. 281.15  in respect of arrears of salary of one teacher, Harbhajan  Kaur and on December 2, 1961, he received Rs. 42.66 and Rs.  494, the  first  amount being the, salary of Ram  Sarup,  another teacher  and  the other as contingent fund  payable  to  the staff.   None  of  these  amounts was paid  to  any  of  the aforesaid persons for payment to whom they were received  by him.   On  M/s.  Joti Pershad Gupta &  Sons  complaining  to Joshi that the amount due to them was not paid, Joshi looked into  the  matter  and finding that that  amount  and  other amounts  were  embezzled, he lodged a complaint  before  the Police.  The police thereupon registered a case under s. 409 against  the appellant and under ss. 409, 465, 477-A and  s. 120-B of the Penal Code against Joshi.  The trial Magistrate convicted  Joshi and the appellant under s. 120-B and  under s.  409  for  criminal breach of trust  in  respect  of  Rs. 3414.53  and  also  under s.  477-A  and  awarded  different sentences   and  fines  directing  the  sentences   to   run concurrently.   In  appeal, the  Additional  Sessions  Judge acquitted  Joshi of all the charges.  He also acquitted  the appellant on charges under s. 120-B and s. 477-A but  upheld his conviction under s. 409.  The appellant filed a revision in  the  High  Court where he conceded  that  the  aforesaid amounts were received by him from the Bank but pleaded  that he  had  handed them over to Joshi and that it  was  Joshi’s duty  to disburse those amounts and to maintain accounts  as Joshi was incharge of the office.  The High Court held  that the  said  moneys  having been admittedly  received  by  the appellant, the burden of proof was upon him to show what  he had  done  with them, that there being no evidence  that  he handed  them over to Joshi except his bare  allegation,  the appellant  had  failed  to discharge  the  burden  and  was,

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therefore,  rightly convicted under s. 409.  The High  Court relied  upon the evidence of Sukhminder Singh, the  District Inspector of Schools that the appellant had confessed before him that 442 out  of the said sum of Rs. 3414-53 he  had  misappropriated Rs.  2500 and that Joshi had misappropriated the balance  of Rs.  979 and that the appellant was prepared to deposit  the amount of Rs. 2500.  The evidence of the District  Inspector of  Schools  also  was  relied upon  as  showing  that  when approached   for   payment,  the   appellant   had   falsely represented  to  M/s.   Joti Pershad Gupta &  Sons  and  the Assistant  Secretary  of the Red Cross Society that  he  had remitted to them the two amounts payable to them. Before  the  High Court, the appellant  contended  that  the trial suffered from misjoinder of charges, that Joshi  being the  drawing and disbursing officer, it was he and  not  the appellant who was responsible for the said misappropriation, that he had applied to the -trial Magistrate for  production of certain documents, that those documents were not produced and that he was prejudiced by the said non-production as  he could  have  shown from those documents that he  had  handed over  the  said amounts to Joshi as Joshi  was  the  officer responsible  for  disbursements.  The  High  Court  rejected these contentions and on merits accepted the finding both of the  Magistrate and the Additional Sessions Judge  that  the appellant had misappropriated the said amounts and dismissed the revision.  Hence this appeal by special leave. Mr.  Mehta for the appellant first contended that  the  High Court erred in proceeding with the, case as if the appellant had  to prove his case beyond reasonable doubt that  he  had handed  over  the said moneys to Joshi.  In support  of  his contention  he  relied upon Woolmington v. The  Director  of Public  Prosecutions(1)  and argued that  if  the  appellant could  show that his case was reasonably probable and  could cast a doubt on the prosecution case that would be enough to entitle him to the benefit of reasonable doubt.  There  was, however, no question of the appellant raising any reasonable doubt in view of (a) his admission that he had received  the said  moneys, (b) the evidence of the District Inspector  of Schools that he had confessed before him of having misappro- priated  Rs. 2500 at least and was prepared to  deposit  the said   amount,  and  (c)  the  evidence  as  to  his   false representations  to M/s.  Joti Perhad Gupta & Sons  and  the Assistant Secretary of the Red Cross Society that moneys due to them had already been remitted.  But the argument of  Mr. Mehta  was  ’that  he  could have  raised  a  doubt  on  the prosecution  evidence  if the documents called  for  by  the appellant  had been produced and his application  for  their production had not been rejected. In  his statement under s. 342 of the Code of Criminal  Pro- cedure  the  appellant admitted that he had drawn  the  said amounts  from the Bank.  His case, however, was that he  did so on Joshi (1)[1935] A.&. 462. 443 authorising him to do so and that he had handed them over to Joshi.   He  pleaded  that  he  had  made  entries  in   the remittance  transfer register showing disbursement of  these amounts  but those entries were made by him at the  instance of  Joshi  and  Joshi had  initialled  those  entries.   The argument was that in order to prove his case the  production of the said documents was necessary. The  appellant  had called for five documents, viz.,  (1)  A Memo  dated June 27, 1960 from the Secretary to the  Finance

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Department  to all heads of Departments showing that it  was the.  head of office, i.e., Joshi, who was  responsible  for disbursement,  (2) Instructions issued in 1962 according  to which  a  clerk  could  make disbursement  only  if  he  had furnished  security  of  Rs. 600, (3) the  Bill  book  which witness  Des  Raj  admitted  was  maintained  and  which  if produced would have shown that the appellant had handed over the  said  moneys  to Joshi,  (4)  the  remittance  transfer register admitted by the District Inspector of Schools could be found in the office, and (5) the sub-voucher for Rs.  494 which the District Inspector assured the trial Magistrate he would send for but failed to produce.  Regarding item No.  1 a  copy  of  the Memo was in fact filed in  the  court  -and admitted in evidence.  For the rest of the items, the  trial Magistrate passed an order directing the prosecuting  police inspector  to  make  a report.  On December  29,  1962,  the officer  made the report that there was no bill  book,  i.e. item  No.  3,  that  item No.  4,  the  remittance  transfer register  was part of the record of the  Assistant  District Inspector’s  office and that the same could be  found  there and  that the sub-voucher item No. 5 was not traceable.   No grievance remained in respect of items 1 and 2 as a copy  of the  said Memo was admitted in evidence.   Therefore,  there would be no dispute that Joshi was the disbursing authority. But  in  view of the extra judicial confession made  by  the appellant that he had in fact misappropriated Rs. 2500,  the fact that Joshi was the disbursing authority would not be of any  importance.   Items  3 and 5,  according  to  the  said report,  could not be traced.  No point, therefore,  can  be made on the score of their non-production.  There  remained, therefore, only the remittance transfer register.  The order sheet  of  the Magistrate shows that at the  time  when  the prosecution  closed  it,,  case and the  statements  of  the appellant and Joshi were recorded under s. 342 of the  Code, no objection was taken by the appellant that the case should not proceed until the said register was produced.  The  case was adjourned to December 29, 1962 for defence evidence.  On that  date also no objection appears to have been taken  and the case was allowed to proceed.  Ultimately on January  14, 1963,   the  Magistrate  passed  his  aforesaid   order   of conviction.   Apart  from that, since the  moneys  were  not remitted  to the parties concerned there can be no  question of there being any R.T.R. in respect of them.   Evidentially that 444 document was called for by the appellant in order to  create confusion knowing full well that it was not there.  We find, therefore,  no  substance in the contention that  -if  these documents had been produced the appellant could have, thrown some  doubt on the prosecution evidence and could have  made out  a reasonably probable case that he had handed over  the said amounts to Joshi. Mr.  Mehta next argued that under S. 409 assuming  that  the said   moneys   were  entrusted  to  the   appellant,   such entrustment  must  be in his capacity as a  public  servant. Being  a  clerk  in the office  of  the  Assistant  District Inspector of Schools the appellant undoubtedly was a  public servant.  But the contention was that it was not his duty as a  clerk  to  receive  these moneys and  that  he  had  only received them at the instance of Joshi.  Not being his  duty so to receive the said moneys, it cannot be said that it was in his capacity as a clerk or as part of his duties that the said  moneys  were entrusted to him.   There  was,  however, evidence that the appellant not only used to receive  moneys but also used to disburse them.  Whether it was done by  him

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as  part  of  his  duties, would  clearly  be  a  matter  of evidence.  This contention was not raised in the High  Court and  being dependent on evidence, he is not entitled now  to raise  it before us.  The decision ,of this Court  in  Budha Lal v. The State of Rajashan(1) rested on different facts as there   was  clear  evidence  that  entrustment  of   moneys deposited  in the complainant’s savings account in the  post ,office was to the accused’s brother who was the post master and not to the accused.  In the present case the position is that Joshi authorised the. appellant to draw and receive the moneys  in  question for the express purpose of  payment  to different parties.  There was, therefore, entrustment to the appellant  of the said moneys for an express  purpose.   The decision in Budha Lal’s,(1) case cannot apply. The third contention of Mr. Mehta was that the charge as  to ,criminal  breach of trust against the appellant  and  Joshi being one under S. 409 read with s. 120B and there being  no charge  under S. 409 simplicitor a conviction under  s.  409 only is not valid.  He argued that as the prosecution failed to   establish  conspiracy  the  -appellant  could  not   be convicted  of the offence under S. 409 simplicitor.  In  our view,  there  is no substance in this  contention.   If  the charge  of conspiracy to commit criminal breach of trust  is followed by a substantive charge of criminal breach of trust in pursuance of such conspiracy there is nothing to  prevent the court convicting an accused under the second charge even if  the prosecution fails to establish conspiracy.   In  any event, there was no prejudice caused to him as he was  aware that there was a sub- (1)  Criminal  Appeal 156 of 1962 decided on  27th  January, 1965. 445 stantive  charge  under  S. 409  against  him.   Mr.  Mehta, however, relied upon a decision of the Kerala High Court  in Kizhakeppallik Moosa v. The State(1).  That decision  cannot be  of any avail as it is directly contrary to this  court’s decision in Willie Slaney v.  The     State    of     Madhya Pradesh(2). It  was then argued that the trial suffered from  misjoinder of charges in that there were six items of moneys in respect of  which misappropriation was alleged and three entries  in respect  of  which  falsification of  accounts  was  charged against  the appellant.  There is some conflict of  judicial opinion  as to whether a charge of misappropriation where  a lump sum consisting of several items together with a  charge of  falsification  of several entries made with  a  view  to screen the misappropriation is correct.  We need not in  the present  case decide which view is correct.   The  appellant did  not at any earlier stage take objection to the  charges under ss. 409 and 477-A on the ground that he was likely  to be  embarrassed in his defence.  He has also not shown  that any  prejudice  was  caused to him and that  being  so  this contention also must fail. The last contention was that though he was charged under  s. 120-B  and  s. 477-A no sanction under s.  196-A(2)  of  the Criminal  Procedure  Code was obtained and,  therefore,  the entire  trial  was  vitiated.   We  may  observe  that   the Additional  Sessions  Judge  found  that  sanction  was  not obtained  though  the  appellant and  the  said  Joshi  were charged  under  the aforesaid two sections  along  with  the charge under s. 409.  Reliance in this connection was placed on  a decision of the Patna High Court in Abdul Mian v.  The King(3),  where it was held that sanction to prosecute is  a condition  precedent to the institution of  prosecution  and that  it is the sanction which confers jurisdiction  on  the

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court  to try the case.  The charge-sheet in that  case  was under  s.  295-A of the Penal Code and sanction  having  not been obtained for prosecution the High Court held that  even though   the  Magistrate  trying  the   accused   ultimately convicted  him under s. 298 which did not  require  sanction the  trial was vitiated as the Magistrate could not  proceed with  the charge-sheet without the requisite sanction.   The decision  in Govindram Sunder Das v. Emperor ( 4 ) was  also called  in aid as it has been observed there that where  the offence of conspiracy to commit forgery is charged against a person  and  the previous consent of  the  local  Government under  s.  196A though required is not obtained,  the  court cannot  take cognizance of the complaint.  These  decisions, however,  are in respect of cases where a single  charge  in respect  of  an  offence requiring  sanction  was  preferred against  the accused and previous sanction was not  obtained and the court held that in the absence of such sanction  the trial court could not take cognizance of the complaint. (1)  I.A.R. 1963 Kerala 68. (2)  [1955] 2 S.C.R. 1140. (3)  [A.I R] 1951 Pat. 513 (4)  A.I.R. 1942 Sind 63. 446 Section 196A(2) provides that no court shall take cognizance of  the offence of criminal conspiracy punishable  under  S. 120-B  in  a case where the object of the conspiracy  is  to commit any noncognizable offence or a cognizable offence not punishable  with  death, imprisonment for life  or  rigorous imprisonment for a term of two years or upwards, unless  the State  Government  or  a  Chief  Presidency  Magistrate   or District  Magistrate empowered in this behalf by  the  State Government  has,  by  order in  writing,  consented  to  the initiation  of the proceedings.  It is clear that the  court cannot take cognizance without the necessary consent in  the case  of a charge of criminal conspiracy under S.  120-B  of which  the object is as stated therein.  The  conspiracy  to commit an offence is by itself distinct from the offence  to do  which the conspiracy is entered into.  Such an  offence, if  actually  committed, would be the  subject-matter  of  a separate charge.  If that offence does not require  sanction though  the offence of conspiracy does and sanction  is  not obtained it would appear that the court can proceed with the trial  as  to  the substantive offence as if  there  was  no charge  of conspiracy.  In Sukumar Chatterjee v.  Mosizuddin Ahmed(1) where the charge was under S. 404 read with S. 120- B  and  no sanction was obtained it was held that  the  case could proceed though only under S. 404.  Similarly, in  Syed Yawar Bakht v. The Emperor(2), the accused was charged under s. 120-B read with s. 467 and also under s. 467 read with S. 109  of the Penal Code.  No sanction was obtained.   It  was held that the consequence of not obtaining the sanction  was as  if the charge under s. 120B read with S. 467  had  never been  framed  but the accused could be convicted  under  the other  charge  viz., under s. 467 read with S.  109  of  the Penal Code.  The same view has also been taken by the Punjab High  Court  in Ram Pat v. State(3) where it was  held  that where a complaint discloses more offences than one, some  of which can be inquired into without sanction and others  only after sanction has been obtained, there can be no  objection to  the  inquiry being carried on in respect  of  the  first category of offences.  Reference may be made to the decision in  Nibaran Chandra Bhattacharyya v. Emperor (4 ) . The  two petitioners  were convicted under S. 120B.  They  were  also convicted  under s. 384 and s. 384 read with s. 114  of  the Penal  Code  respectively.  The learned Judge  accepted  the

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contention  that the trial was vitiated as no  sanction  was obtained  in  respect of the charge under S. 120-B  and  set aside the conviction also under S. 384 and S. 384 read  with S. 114 passed against petitioners 1 and 2. But the report of the  decision shows that he did so because he felt  that  by proceeding with the charge under S. 120-B admitting evidence on  that  charge  and that charge  resulting  in  conviction prejudice was caused to the petitioners in the matter of the other charges and (1) 25 C.W.N. 357.           (2) 44 C.W.N. 474. (3) (1962) 64 P.L.R. 519.    (4) A.I.R. 1929 Cal. 754. 447 that therefore the trial could not be said to be  severable. No  such question of prejudice can be said to arise  in  the present ease in view of the extra-judicial confession of the appellant  of  having misappropriated Rs. 2,500 out  of  Rs. 3,414 and odd in question. There  was  in  the  instant case  not  only  a  charge  for conspiracy  under  s.  120-B but  also  two  other  separate charges for offences under ss. 409 and 477-A alleged to have been committed in pursuance ofthe  conspiracy.   Though the charge under s. 120B required  sanction no such sanction was necessary in respectof the charge under s. 409.  At the most,  therefore, it can be argued that the Magistrate  took illegal  cognizance of the charge under s. 120-B as s.  196- A(2) prohibits entertainment of certain kinds of  complaints for  conspiracy  punishable  under  S.  120-B  without   the required sanction.  The absence of sanction does not prevent the  court from proceeding with the trial if  the  complaint also  charges  a  co-conspirator of  the  principal  offence committed in pursuance of the conspiracy or for abetment  by him of any such offence committed by one of the co-conspira- tors  under  s. 109 of the Penal Code.  (See  Mohd.   Bachal Abdulla  v.  The  Emperor(1).  In our view,  the  fact  that sanction was not obtained in respect of the complaint  under s. 120-B did not vitiate the trial on the substantive charge under  s. 409.  No prejudice could be said to have  resulted in  view of the appellant’s confession that he had  in  fact misappropriated  Rs. 2,500 and was prepared to deposit  that amount. The appeal is dismissed. Y.P.                                       Appeal dismissed. (1) A.I.R. 1934 Sind 4. 448