The absence of sanction for prosecution under Section 196-A(2) of the Criminal Procedure Code does not vitiate the trial on a substantive charge if the appellant is not prejudiced by the lack of sanction.

Headnote:
CRIMINAL LAW - CRIMINAL BREACH OF TRUST - ENTITLEMENT TO BENEFIT OF DOUBT - PRODUCTION OF DOCUMENTS - ENTRUSTMENT OF MONEY - CHARGE OF CONSPIRACY - MISJOINDER OF CHARGES - SANCTION FOR PROSECUTION.
Fact of the Case:

The appellant, a clerk in the office of the Assistant District Inspector of Schools, was entrusted with certain amounts of money to be paid to various parties. He failed to pay the money to the intended recipients and was charged with criminal breach of trust under Section 409 of the Indian Penal Code. The appellant claimed that he had handed over the money to his superior, Joshi, who was responsible for disbursements.
Finding of the Court:

The court found that the appellant had admitted to misappropriating Rs. 2,500 of the entrusted money and was prepared to deposit that amount. The court also found that the appellant had failed to produce documents that could have supported his claim that he had handed over the money to Joshi.
Issues: 1. Whether the appellant was entitled to the benefit of doubt in the absence of production of certain documents. 2. Whether the entrustment of money to the appellant was in his capacity as a public servant. 3. Whether the charge of criminal breach of trust against the appellant and Joshi under Section 409 read with Section 120-B was valid in the absence of a charge under Section 409 simpliciter. 4. Whether there was misjoinder of charges in the case. 5. Whether the trial was vitiated due to the absence of sanction for prosecution under Section 196-A(2) of the Criminal Procedure Code.
Ratio Decidendi: 1. The appellant was not entitled to the benefit of doubt as he had admitted to misappropriating Rs. 2,500 of the entrusted money and had failed to produce documents that could have supported his claim that he had handed over the money to Joshi. 2. The entrustment of money to the appellant was in his capacity as a public servant as he was authorized by Joshi to draw and receive the money for the express purpose of payment to different parties. 3. The charge of criminal breach of trust against the appellant and Joshi under Section 409 read with Section 120-B was valid even in the absence of a charge under Section 409 simpliciter as the prosecution was not required to establish conspiracy to secure a conviction under Section 409. 4. There was no misjoinder of charges as the appellant did not object to the charges at an earlier stage and did not show that any prejudice was caused to him. 5. The absence of sanction for prosecution under Section 196-A(2) of the Criminal Procedure Code did not vitiate the trial on the substantive charge under Section 409 as the appellant was not prejudiced by the lack of sanction.
Final Decision: The appeal was dismissed.

Judgment

SHELAT, J. : In 1961 Ravi Datt Joshi was the Assistant District Inspector of Schools at Karnal and the appellant Was then working under him as a clerk. Between March to December 1961, Joshi authorised the appellant to draw certain amounts form 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 and Sons. On March 31, 1961, he drew a further sum of Rs. 1,449.38 out of which Rs. 1,404 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 and 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. 3,414.53 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 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, 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 out of the said sum of Rs. 3,414.53 he had misappropriated Rs. 2,500 and that Joshi had misappropriated the balance of Rs. 979 and that the appellant was prepared to deposit the amount of Rs. 2,500. The evidence of the District Inspector of Schools also was relied upon as showing that when approached for the payment, the appellant had falsely represented to M/s. Joti Pershad Gupta and Sons and the Assistant Secretary of the Red Cross Society that he had remitted to them the two amounts payable to them.

2. 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 m

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1967 Supreme(SC) 116

The absence of sanction for prosecution under Section 196-A(2) of the Criminal Procedure Code does not vitiate the trial on a substantive charge if the appellant is not prejudiced by the lack of sanction.

Cases Referred (1)