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CASE NO.: Appeal (crl.)  1040 of 1998

PETITIONER: State of Himachal Pradesh

RESPONDENT: Karanvir

DATE OF JUDGMENT: 12/05/2006

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT:

J U D G M E N T

S.B. SINHA, J.   The State of Himachal Pradesh is in appeal before us aggrieved by the  judgment and order dated 24.9.1997 passed in Criminal Revision  No.149/1994, whereby and whereunder the revision application, filed by the  respondent herein, against the judgment and order dated 1.12.1994 passed by  the Sessions Judge affirming a judgment of conviction and sentence  passed  by the Chief Judicial Magistrate, Sirmaur District at Nahan, convicting the  respondent for commission of an offence punishable under Section 409 of  the IPC and sentencing him to undergo simple imprisonment for a period of  six months and to pay a fine of Rs.1,000/-, has been allowed.  

The respondent was a Post Master at Chhapang, within the Police  Station Pachhad in the District of Sirmaur. One Rajbir Singh (PW-3), uncle  of the respondent-accused, was at the relevant time working in the  Government High School, Ramadhon. He had deposited a sum of Rs.8,000/-  with the respondent-accused for purchase of National Savings Certificates.  Necessary forms were also filled up by said Rajbir Singh and a receipt  acknowledging the receipt of the said amount was issued to him. Although  more than a month had passed but the said Rajbir Singh was not handed over  any National Savings Certificate by the respondent. He, therefore, made  enquiries with the  postal authorities both at Rajgarh and at Nahan,  whereupon he came to learn that no such National Saving Certificates had  been issued. He thereafter made a complaint in that behalf, with the postal  authorities. The postal authorities entrusted the matter to one Shri Brijpal  Thakur (PW-4) for conducting an enquiry. The respondent having come to  learn of initiation of the said enquiry, deposited a sum of Rs.4200/- in the  Post Office on 30.11.1989. A further deposit of Rs.4,000/- was made by him  on 11.12.1989. It is not in dispute that the excess amount of Rs.200/- was  deposited by the respondent on 30.11.1989 by way of interest.  

A First Information Report was lodged on 27.6.1990 at Police Station,  Pachhad. During the investigation, specimen and admitted writings of the  respondent were taken and sent to the handwriting expert for comparing with  his writings and signatures on the receipt. The expert opined that the  questioned writing and the signatures on the deposited documents tallied  with the admitted signatures and writings of the respondent. The leaned  Chief Judicial Magistrate, as noticed hereinbefore, found the respondent  guilty of commission of an offence punishable under Section 409 IPC and  sentenced him  to undergo simple imprisonment for a period of six months.  A fine of Rs.1,000/- was also imposed upon him.

The appeal preferred by the respondent before the learned Sessions  Judge, Sirmaur, also came to be dismissed. In the revision application filed  by the respondent, the High Court held that as the prosecution had not been  able to prove ’misappropriation’ on the part of the respondent, the judgment  of conviction and sentence was unsustainable.  

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        The short question which arises for consideration in this appeal is as  to whether having regard to the facts and circumstances of this case, the  prosecution has been able to prove that the respondent misappropriated the  said amount.   

       Section 405 of the IPC reads as under:  

"405. Criminal breach of trust.- Whoever, being in any  manner entrusted with property, or with any dominion  over property, dishonestly misappropriates or converts  to his own use that property, or dishonestly uses or  disposes of that property in violation of any direction  of law prescribing the mode in which such trust is to be  discharged, or of any legal contract, express or implied  which he has made touching the discharge of such  trust, or wilfully suffers any other person so to do,  commits ’criminal breach of trust’.  ................."  

Illustration (e) appended to the said provision in this connection be  noticed.

"A, a revenue-officer, is entrusted with public money  and is either directed by law, or bound by a contract,  express or implied, with the Government, to pay into a  certain treasury all the public money which he holds.  A dishonestly appropriates the money. A has  committed criminal breach of trust."

The respondent was a Post Master. He was holding an office of public  trust. The complainant who was a teacher entrusted the amount to the  respondent for the purpose of purchasing National Savings Certificates. As  soon as the amount was received by the respondent on behalf of the postal  authorities, it became public money. It was required to be utilised for the  purpose for which the same was handed over to the respondent.  

The High Court opined that the entrustment was proved. The fact that  till 29.11.1989, the amount of Rs.8,000/- deposited by the complainant with  the respondent, had not been utilised for the purpose for which the same had  been handed over to him also is admitted. When an enquiry came to be made  by Shri Brijpal Thakur (PW-4), the respondent deposited the said amount in  two installments along with a sum of Rs.200/- by way of interest. The  respondent, therefore, being a public officer had the requisite knowledge that  the amount carried interest. On 16.7.1989, the postal savings certificates  came to be issued. The respondent therefore thought himself liable to pay the  said amount with interest, so as to reimburse to the complainant the amount  to which was entitled by way of interest for depositing the  said amount.  Even on 30.11.1989, he did not deposit the entire amount.  The entire  amount came to be deposited by him on 11.12.1989.  We, therefore, fail to  understand as to on what basis the learned Judge opined that the second  ingredient of Section 405 of the IPC, i.e. misappropriation of the amount by  the respondent-accused had not been proved. The High Court, in our  considered view, completely misdirected itself in opining that it was  obligatory on the part of Rajbir Singh (PW-3) or Brijpal Thakur (PW-4) to  state in their complaint that the accused committed criminal  misappropriation with intention to utilise the amount for his personal use.  The very fact that the respondent retained with him the entrusted amount is  not disputed. If he did not utilise the amount for the purpose for which the  same had been deposited, an offence must be held to have been committed.  

Mrs. K. Sarada Devi, learned counsel appearing on behalf of the  respondent would submit that no material was brought on record by the  prosecution to show as to how the respondent had utilized the amount. In our  opinion, the same was not necessary.  In view of the admitted fact, we are of

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the opinion that it was for the respondent himself to prove the defence raised  by him that the entire amount had not been paid to him by the complainant.  The learned Judge had rejected the said defence.   

The actual manner of misappropriation, it is well settled, is not  required to be proved by the prosecution. Once entrustment is proved, it was  for the accused to prove as to how the property entrusted to him was dealt  with in view of Section 405 of the IPC. If the respondent had failed to  produce any material for this purpose, the prosecution should not suffer  therefor.  

The learned Trial Judge as also the learned Sessions Judge arrived at  concurrent findings of fact. The High Court, in our opinion, misdirected  itself in passing the impugned judgment while exercising its revision  jurisdiction. [See N. Bhargavan Pillai & Anr. vs. State of Kerala, (2004) 13  SCC 217].  

A contention has further been raised by Mrs. Sarada Devi, that no  question was put to the respondent while he was being examined under  Section 313 of the Code of Criminal Procedure, with a view to give him an  opportunity to explain whether the amount was given to him for his personal  use or he converted the money for his personal use. We are afraid that such  contention cannot be accepted. While examining the accused under Section  313 of Cr.P.C., the Trial Court is merely required to ask such question which  has been brought on record as against the respondent.  The respondent in fact had admitted the entire prosecution case for all  intent and purport. The entire evidence which was adduced on behalf of the  prosecution was made known to the accused. In his statement under Section  313 Cr.P.C., he accepted that he had received a sum of Rs.8,000/- from the  complainant and he had deposited the said amount together with interest, in  two installments. He has merely reiterated his defence, as noticed  hereinbefore, that the complainant had not paid to him the entire sum of  Rs.8,000/-, which has not been accepted by the Trial Court. We are,  therefore, of the opinion that the High Court committed a manifest error in  arriving at a finding that there has been infraction of the mandatory  provisions of Section 313 Cr.P.C.   

For the aforesaid reasons, the impugned judgment cannot be sustained  and it is set aside accordingly.   

The question, however, would now arise as to whether in the facts and  circumstances of this case, the respondent should be sent back to jail. The  respondent is aged about 60 years. The offence is said to have been  committed 15 years back. He was arrested by the police. He might have been  in custody for some time.  

Having regard to the peculiar facts and circumstances of this case and  keeping in view the fact that the respondent had deposited the entire amount  before the First Information Report was lodged, we are of the opinion that  the interest of justice would be subserved if any substantial punishment is  not awarded. Accordingly, we impose a fine of Rs.4,000/- upon the  respondent, which will be apart from the amount of fine of Rs.1,000/-  imposed by the learned Trial Judge. It is directed that in default of the  payment of the said amount, the respondent shall undergo simple  imprisonment for three months.  The appeal is thus allowed.