1. Appeal against reversal of acquittal for criminal breach of trust under Section 409 IPC by a cashier-cum-counter clerk. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 )
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2026 Supreme(SC) 1229
SUPREME COURT OF INDIA
Ujjal Bhuyan, Atul S. Chandurkar, JJ.
Ramkrushna Prahllad Dongardive – Appellant
Versus
The State Of Maharashtra – Respondent
Criminal Appeal No.1432 of 2019
Decided On : 08-10-2026
Important Points
Conviction under Section 409 IPC requires proof of entrustment and dishonest intention. In appeals against acquittal, the presumption of innocence persists; the appellate court cannot shift the burden of proof to the accused or impose a sentence without a specific hearing on the quantum of sentence.
Subject
Criminal Law - Criminal Breach of Trust
Act Referred
Headnote
(A) Indian Penal Code, 1860 - Sections 405, 406 and 409 - Criminal breach of trust - Essential ingredients - Entrustment and dishonest intention - For a conviction under Section 409, it is essential that the prosecution proves that the accused was entrusted with property and subsequently dishonestly misappropriated or converted it - Dishonest intention is a vital element; breach of trust simpliciter without dishonest intent does not constitute an offence (Paras 12, 24)
(B) Code of Criminal Procedure, 1973 - Section 100 - Search and Seizure - Procedural compliance - Non-compliance with Section 100(7) regarding the supply of a list of seized articles to the accused, coupled with the fact that search witnesses turned hostile, renders the seizure doubtful - Such seizure cannot be upheld solely based on the testimony of an investigating officer without further corroboration (Paras 17, 18)
(C) Appeal from Order of Acquittal - Scope and standard of interference - An appellate court must give weight to the trial court's views on witness credibility and the presumption of innocence - Findings of fact should not be disturbed simply because another view is possible - The burden of proof remains with the prosecution and cannot be shifted to the accused to prove innocence (Paras 11, 24)
(D) Code of Criminal Procedure, 1973 - Section 386(a) - Sentencing - When an appellate court reverses an acquittal and convicts the accused for the first time, it is a bounden duty of the court to hear the convict on the question of sentence before imposing the penalty (Paras 21, 22)
Facts of the case:
An employee serving as a cashier-cum-counter clerk was accused of misappropriating funds collected from customers. It was alleged that a portion of the collected amount was credited belatedly to the government account and another portion was not credited at all. The trial court acquitted the accused, noting that the prosecution evidence was vague and essential registers were not produced. The High Court reversed the acquittal, convicting the accused and sentencing him to one year of rigorous imprisonment and a fine.
Findings of Court:
The prosecution failed to produce the original cashbooks, audit reports, and daily registers necessary to establish the entrustment of funds. The search and seizure of documents from the accused's residence were not legally proved due to the hostility of panch witnesses and non-compliance with statutory procedures. The High Court erred by shifting the burden of proof to the accused and by sentencing the accused without providing an opportunity to be heard on the quantum of sentence.
Issues: Whether the High Court was justified in reversing the acquittal despite the prosecution's failure to produce primary evidence of entrustment and the procedural failures in seizure; and whether the failure to hear the convict on the sentence was a legal infirmity.
Ratio Decidendi: To sustain a conviction for criminal breach of trust, the prosecution must prove both entrustment and dishonest intention. In appeals against acquittal, the presumption of innocence remains, and the appellate court should not interfere unless the trial court's decision is perverse. Procedural lapses in seizure and non-production of essential records create reasonable doubt in favor of the accused. Furthermore, under Section 386(a) of the Code of Criminal Procedure, a person convicted for the first time by an appellate court must be heard on the sentence.
Result: Judgment of the High Court set aside; acquittal by the trial court restored.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
- appeals
- evidence
- search and seizure
Advocates appeared:
For the Appellant(s) : Mr. B.H. Marlapalle, Sr. Adv. Mr. Sudhanshu S Choudhari, Sr. Adv. Mr. Vatsalya Vigya, AOR Mr. Ajit Wagh, Adv. Ms. Aanchal Rathore, Adv. Mr. Avinish Kumar Saurabh, Adv. Ms. Gautami Yadav, Adv. Ms. Pranjal Chapalgaonkar, Adv. Mr. Yash Singhania, Adv.
For the Respondent(s): Mr. Shrirang B. Varma, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande- 3259, AOR Mr. Harshavardhan V. Ghadge, Adv. Mr. Sachin Patil- 2088, AOR
For the Appellant(s) : Mr. B.H. Marlapalle, Sr. Adv. Mr. Sudhanshu S Choudhari, Sr. Adv. Mr. Vatsalya Vigya, AOR Mr. Ajit Wagh, Adv. Ms. Aanchal Rathore, Adv. Mr. Avinish Kumar Saurabh, Adv. Ms. Gautami Yadav, Adv. Ms. Pranjal Chapalgaonkar, Adv. Mr. Yash Singhania, Adv.
For the Respondent(s): Mr. Shrirang B. Varma, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande- 3259, AOR Mr. Harshavardhan V. Ghadge, Adv. Mr. Sachin Patil- 2088, AOR
Table of Contents
2. Appellant argued prosecution failed to prove entrustment and dishonest intention; State argued High Court rightly found guilt proved beyond reasonable doubt. (Para 9 , 10 )
3. Prosecution failed to prove entrustment or dishonest intention; non-production of key registers justified adverse inference; seizure was doubtful. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 )
4. For criminal breach of trust, prosecution must prove entrustment and dishonest intention; burden cannot shift to accused; adverse inference for withheld documents. (Para 12 , 13 , 14 , 24 )
5. Appeal allowed; High Court judgment set aside; trial court acquittal restored; appellant acquitted. (Para 26 )
6. What must the prosecution prove for an offence of criminal breach of trust under Section 405 IPC?
The prosecution must prove entrustment of property and dishonest misappropriation, conversion, or use in violation of law or contract. (Para 12 , 13 )
7. Can an adverse inference be drawn against the prosecution for withholding relevant documents?
Yes, under Section 114(g) of the Evidence Act, an adverse inference can be drawn if a party withholds material documents in its custody. (Para 14 )
8. Must an appellate court hear an accused on sentence before sentencing for the first time after reversing an acquittal?
Yes, the appellate court must hear the convict on the question of sentence before imposing it under Section 386(a) CrPC. (Para 21 , 22 )
9. Does non-compliance with search and seizure provisions under Section 100 CrPC vitiate a seizure?
Non-compliance is an irregularity, not fatal per se, but it affects weight of evidence and must be assessed cumulatively with other factors. (Para 18 , 19 )
10. What is the standard of proof required from an accused in a criminal trial?
The accused need only prove his defence by preponderance of probabilities, not beyond reasonable doubt, to throw doubt on the prosecution case. (Para 24 )
JUDGMENT :
ATUL S. CHANDURKAR, J.
1. Reversal of the appellant’s acquittal for the offence punishable under Section 409 of the Indian Penal Code, 18601[For short, ‘the Penal Code’] is questioned in this criminal appeal. The appellant, on being tried for the offence punishable under Section 409 of the Penal Code was acquitted by the trial Court. The Bombay High Court, Bench at Aurangabad2[For short, ‘the High Court’], however, reversed the said acquittal. After convicting the appellant for the offence punishable under Section 409 of the Penal Code, he has been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5,000/-. In default of payment of fine, he was required to undergo further imprisonment for one month.
2. According to the prosecution, the appellant was serving as Cashier-cum-Counter Clerk with the Telephone Department at Aurangabad. During the period from 01.07.1993 to 09.10.1993, the appellant had collected telephone charges from customers amounting to Rs.8,73,737/-. It was alleged that from the said amount, Rs.3,88,035/- was credited to the account of the Government belatedly and, thus, the appellant had committed temporary criminal breach of trust. It was also alleged that the appellant had not credited an amount of Rs.4,75,702/- in the account of the Government despite being entrusted with the said amount. On a complaint being lodged by the Assistant Accounts Officer on 11.10.1993, offence under Sections 409, 477 and 420 of the Penal Code was registered. After completion of the investigation, charge under Section 409 of the Penal Code was framed. The appellant denied the said charge and claimed to be tried.
3. To bring home the aforesaid charge, the prosecution examined various witnesses. PW1-Ashok Joshi was working as Assistant Accounts Officer at the Telephone Centre at Aurangabad. He stated that as a Cash Counter Clerk, it was the duty of the appellant to receive the billing amount from customers as per the amount mentioned in the telephone bills. The amount collected up to 01.00 p.m. was to be credited in the bank on the same day, while the balance amount was to be given to the Head Cashier. This witness stated that a notice was given to the appellant vide Exhibit-7 enquiring as to why the amount received from various customers had not been deposited. The appellant failed to reply to the said notice. He referred to the concerned receipt books signed by the appellant at Exhibit-8 and a list indicating credit of amount of Rs.4,75,700/- at Exhibit-9. One of the customers had deposited an amount of Rs.4,930/- on 21.08.1993 but the said amount was actually credited to the account of the Government on 25.09.1993. In his cross-examination, this witness admitted that Exhibit-9, which was a list indicating credit of various amounts, did not bear the signature of the appellant nor was there any handwritten portion on the same. He further admitted that Exhibit-8, which was a receipt book, had not been signed by the Accounts Officer or the Junior Accounts Officer or the Assistant Accounts Officer. He further stated that if the payment of any telephone bill was not made by a customer for thirty-five days, his connection would be disconnected. However, no complaint of any disconnection was received from any customer. He further stated that no notice was served on the appellant with regard to any difference in the receipt books and the list prepared by him. He also did not find any entry to be missing in the list as per the receipt books. He admitted that he had not produced any record to show the details of the receipt books supplied to the appellant. The daily lists were tallied as per the receipts in the receipt books supplied to the appellant on day-to-day basis, regularly. He also admitted that till the lodging of the report, not a single complaint from any customer as regards disconnection of the telephone line was received despite having paid the dues. No audit report was prepared before filing th
