1999 Supreme(SC) 260

1999(2) Supreme 269
Supreme Court of India
(From Punjab & Haryana High Court)
G.B. Pattanaik & M.B. Shah, JJ.
Jiwan Dass etc. -Appellants
versus
State of Haryana -Respondent
Criminal Appeal Nos. 990 of 1995
With
Criminal Appeal No. 991 of 1995
Decided on 26-2-1999
Counsel for the Parties :
For the Appellants : R.K. Jain, Sr. Advocate, Rajeev Sharma, Ms. Rajni Narayan, Ranbir Yadav and Atul Kumar, Advocates.
For the Respondent : Ajay Siwach and Prem Malhotra, Advocates.

Important Points
1. 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.
2. 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.

Headnote:Indian Penal Code, 1860-Sec­tion 409-Criminal breach of trust by public servant - Prosecution need not prove actual mode of misappropri­ation - Once entrust or domain over property is established, it would be for accused to explain how property was dealt with-Accused ‘J’ was given money in draft form to purchase 10,000 litres of diesel-Accused ‘M’ was sent along with him-Delivery taken by ‘M’ signing regis­ter and cash memo - On measurement 4300 litres found less-‘M’ was autho­rised to take delivery of oil-Mere fact ‘J’ had taken bank draft cannot be basis to conclude that in fact oil had been entrusted to ‘J’ or he had domain over oil-‘J’ may be res­pon­sible for dereliction of his duty in not taking delivery of oil himself -Fact that ‘J’ undertook to make good of shortage of diesel does not amount to confession or commission of offence-‘J’ cannot be convicted for offer u/s 409-‘M’s plea that he acted at behest of ‘J’ not acceptable-Embezzlement of diesel by ‘J’ established beyond reasonable doubt-‘M’ conviction u/s 409 sustained.

       Held : 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. (Para 6)

       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 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 taken 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 frame charge. 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 P.W. 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. (Paras 6 & 7)

       In view of the 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. Mere fact that Jiwan Dass had taken the bank 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. (Paras 8 & 9)

       So far as accused Mittar Pal Yadav is concerned, as has been discussed earlier, there is conclusive oral and 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. (Para 10)