IMPORTANT POINT
Actual manner of misappropriation is not required to be proved by prosecution and once entrustment is proved, it is for accused to prove as to how property entrusted to him was dealt with.

Headnote:Indian Penal Code, 1860—Section 409—Misappropriation of public money—Respondent was a post-master and PW3 deposited Rs. 8000/- with respondent for purchase of National Savings Certificates—Certificates were not issued—Conviction by trial Court and sentence of one year imprisonment with fine Rs. 1000/- award—Conviction and sentence upheld in appeal by Sessions Court—High Court set aside conviction in revision holding that prosecution had not been able to prove “misappropriation” on part of respondent—High Court found that during inquiry by department, conducted by PW4 respondent deposited the said amount in two installments with Rs. 200/- by way of interest—State appeal—Actual manner of misappropriation was not required to be proved by prosecution—Once the entrustment was proved, it was for accused to prove as to how property entrusted to him was dealt with—Impugned acquittal was liable to be set aside—Accused however being now 60 years old and incident took place 15 years back, interest of justice to be served if substantial punishment was not awarded — Further fine Rs. 4000/- imposed with default sentence.
       Held : 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. (Para 10)
       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 had 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.(Para 13)
       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 agreed 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.(Para 15)

JUDGMENT

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.

2. 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.

3. 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 learned Chief Judicial Magistrate, as notice hereinabove, 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.

4. 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.

5. 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.

4. 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 dishonesty uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharge, 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,

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2006 Supreme(SC) 506

IMPORTANT POINTActual manner of misappropriation is not required to be proved by prosecution and once entrustment is proved, it is for accused to prove as to how property entrusted to him was dealt with.

Cases Referred (1)

IMPORTANT POINT
Actual manner of misappropriation is not required to be proved by prosecution and once entrustment is proved, it is for accused to prove as to how property entrusted to him was dealt with.