GUJARAT HIGH COURT
R.D. Kothari, J.
Haresh A. Patel —Appellant
versus
State of Gujarat and Ors. —Respondents
Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 6116 of 2010
Decided On: 08.05.2015

IMPORTANT POINT
Question of deviation from duty may be considered by applying test of reasonable man.

Headnote:Indian Penal Code, 1860—Sections 409 and 420—Criminal Procedure Code, 1973—Section 482—Criminal breach of trust and cheating by public servant—Sole petitioner at relevant time was working as Auditor—Question of deviation from duty by petitioner may be considered by applying test of ‘reasonable man’ and by asking what in general is expected from Auditor—Grievance of complainant is negligence shown by applicant—Aggrieved party has option either to take civil action or to file criminal complaint—One of facets of criminal breach of trust is entrustment of property or that person should have domain over it—Other facet is failure to give account of property so entrusted or giving of an explanation that is untrue—It is not possible to relate act of petitioner with requirement of former facet—Essentials that attracts offence of breach of trust are not possible to infer so far as case of applicant is concerned—Similarly, no case of cheating by applicant in facts of the case— Complaint quashed and set aside so far as present applicant is concerned—Criminal case against other accused may be proceeded in accordance with law.

       Held: In essence and substance, the say of the complainant is, petitioner has shown negligence in discharge of his duties. The sole petitioner before this Court at the relevant time was working as an Auditor. The question of deviation from duty by the petitioner may be considered by applying the test of ‘reasonable man’ and secondly, by asking the question, namely, what in general is expected from the auditor. Taking second aspect first, brief reference may be made to the recent English case law on the point.

       The Court, in the present case, is called upon to consider initiation of criminal proceeding against petitioner. Grievance of complainant, in a sense, is “negligence” shown by the applicant, as referred above. I have also made a reference that allegation of negligence may be appreciated by applying the test of the reasonable man and by resorting to the other test, as stated above. It may be borne in mind that aggrieved party has option either to take civil action or to file criminal complaint. It is obvious that considerations for the Court in examining the case under civil and criminal jurisdiction would be different. In Kedarnath’s case - AIR 1965 Allahabad 233, meaning of ‘negligence’ in tort action and in criminal action is considered. It is held as under:

        “‘Negligence’ is a term of art but has distinct meanings in different jurisdictions. In torts, damage is an essential ingredient, but that element is not necessary in the law of master and servant. In the law of crimes, there is a series of offence, based on negligence, in which loss or injury is not material. It is enough, if the act is likely to cause injury or endanger life. Sections 279, 285, 287 and 290 of the Indian Penal Code 1860 are illustrative examples. For criminal breach of trust under Section 405 Indian Penal Code 1860 dishonesty, that is, wrongful loss or gain, has to be established.”

       Thus, one of the facets of criminal breach of trust is entrustment of property or, that person should have domain over it. The other facet is, failure to give account of the property so entrusted or giving of an explanation that is untrue. It is not possible to relate act of petitioner with requirement of former facet. As to later facet, in this regard, reference may be made to Jaikrishnadas Manohardas Desai’s case - AIR 1960 SC 889. Head Note-A reads, thus;

        “(A) Penal Code (45 of 1860), S.409 - BREACH OF TRUST - Proof - Failure to account for property entrusted - Dishonest misappropriation or conversion when may be inferred. To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure, in breach of an obligation, to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily he made.”

        (See also : Krishna Kumar’s case - AIR 1959 SC 1390). That act is not intentional but, it was on account of accidental loss is for accused to bring on record.

       Essentials, therefore, that attracts offence of breach of trust, are not possible to infer so far as case of applicant is concerned. No case of cheating by the applicant in the facts of the case.

       Accordingly, application is allowed. The complaint registered as C.R. No. I-9 of 2010 at Kevadia Police Station, District Narmada is hereby quashed and set aside so far as present applicant is concerned. It is hereby clarified that criminal case against the other accused may be proceeded in accordance with law. Rule is made absolute.

       Result: Criminal Misc. Application allowed.