IMPORTANT POINT
Basic requirement to bring home the accusations under Section 405 IPC was requirements to prove conjointly (1) entrustment and (2) whether accused was actuated by dishonest intention or not misappropriated it or converted it to his own use to the detriment of person who entrusted it.

JUDGMENT

Arijit Pasayat, J.-The Court of law is described as a temple of justice. Logically, the Presiding Officer is the "Pujak" and members of staff are the "Sewaks". It is, therefore, a matter of grave concern when a "Sewak" is alleged to have misappropriated funds of the temple.

2. Appellant who was the property clerk in the Court of Judicial Magistrate, First Class, Chikodi, allegedly misappropriated properties belonging to the Court and sold them to four other persons who were acquitted by the trial Court along with the present appellant. While the appellant stood charged for commission of offence punishable under Section 409 of the Indian Penal Code, 1860 (in short the IPC ) the rest four stood charged for commission of offence punishable under Section 411 IPC. The prosecution alleged that while the properties in question were under the domain of the appellant, he sold them to accused Nos. 2 to 5 during the period 2.3.1979 to 6.6.1985 and, therefore, committed the offence as alleged. After charge was framed all the five persons faced trial before the Principal Civil Judge and Judicial Magistrate, First Class, Chikodi, who by judgment dated 4th July, 1989 held that all the accused persons were not guilty of the charges. He, inter alia, observed that the evidence was not satisfactory regarding entrustment and misappropriation.

3. The State of Karnataka preferred an appeal before the Karnataka High Court and the Division Bench by the impugned judgment held that no interference was called for in the case of the other four accused who were acquitted. So far as the present appellant is concerned, it was held that the accusations were established by the evidence on record. During the pendency of the appeal the Court felt that there were some aspects which were required to be gone into, and, therefore, by exercise of power under Section 391 of the Code of Criminal Procedure, 1973 (for short the Code ) directed certain materials to be brought on record by the Trial Court. That was done. After that by the impugned judgment, the High Court convicted the appellant for commission of offence under Section 409 IPC and sentenced him to undergo imprisonment for one year.

4. In support of the appeal, learned counsel for the appellant submitted that the evidence was unreliable and both the trial Court and the High Court did not place reliance on major portion of the evidence. Further the ingredients necessary to bring home accusations under Section 409 were not present. Strong reliance was placed by the appellant on decision of this Court in Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170) to contend that the High Court s judgment is not tenable. It was submitted that only entries in the books of accounts were made by the accused and there was nothing beyond that to show that accused was acting as a property clerk. Additionally, it was submitted that as noticed by this Court in Rabindra Kumar Dey s case (supra) mere entrustment without anything else cannot establish accusations under Section 409 IPC.

5. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are :

(1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bond to account for; and

(2) the accused has committed criminal breach of trust.

6. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are :-

(1) Entrusting any person with property, or with any dominion over property.

(2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly u