Failure to account for entrusted property, coupled with the lack of a credible explanation, can lead to an inference of misappropriation with dishonest intent, constituting the offence of criminal breach of trust under Section 409, IPC.

1. The Deputy Commissioner, Kohima, received a cheque for Rs. 39,680/- dated 22-3-1968. It was issued by the Border Road Task Force and was meant for disbursement among ex-soldiers. The appellant was working as Secretary of District Soldiers' Sailors' and Airmen's Board, Kohima District, at the relevant time. The cheque was therefore handed over to him. The prosecution case is that the appellant obtained the money on 30-3-68, but instead of disbursing the money to the persons for whom it was meant, he misappropriated the same. The matter came to light on receipt of some complaints from exsoldiers to the Deputy Commissioner, who got the matter enquired by a Board of Enquiry headed by the Additional Deputy Commissioner. The Board was of the view that the present was a clear case of breach of trust and so proper action may be taken against the appellant. The police was informed about the matter on 23rd July, 1969 and the charge-sheet was submitted on 30th May, 1970. In the trial that ensued, the prosecution examined nine witnesses and the defence four. One of the PWs had been examined as a Court witness also. The learned trial court being satisfied about the guilt of the appellant has convicted him under S.409, I.P.C., and has awarded a sentence of R. I. for three years and a fine of Rs. 15,000/-, in default, to R. I. for further 1½ years.

2. Shri Sarma has advanced these submissions before me : (1) The prosecution was bad in the eye of law as the same had been launched without sanction contemplated by S.197(1) of the old Cr. P.C. (2) There is no evidence of entrustment of the money to the appellant; and (3) evidence of misappropriation is totally lacking. As some reliance has been placed by the learned trial court on the confessional statement of the appellant, a submission has also been made that the statement recorded on 30-9-1969 by PW 1 was not really confessional in nature and as such should not have been admitted against the appellant.

3. The point relating to sanction has no force because under the aforesaid section sanction is required inter alia if an offence had been committed by a public servant while acting or purporting to act in the discharge of his official duty. It cannot be said, as already observed by me in the order passed on 3-4-1981, that the appellant was discharging his official duty in misappropriating the amount, if it was so.

4. The submission relating to entrustment cannot also be accepted as this is amply borne out by the evidence on record. PW 2, who was the Cashier of the State Bank of India and was reexamined as CW 1, has clearly stated that the amount in question was paid to the appellant. This had been done on the strength of an authority letter issued by the Deputy Commissioner which was marked as Ext. P-8 in the case. This document bears the endorsement "Received Payment" in the hand of the appellant and is dated 30-3-1968. In his examination under Sec. 364 of the old Cr. P.C., the appellant had admitted receipt of the cheque in question by him, though he had denied that he had obtained the amount. But on the face of the aforesaid contemporary document and the evidence on record, no doubt can be entertained on this score.

5. The main contention of Shri Sarma relates to the question that there is no evidence of misappropriation. According to the learned counsel, to bring home guilt under S.409, I.P.C., proof of entrustment is not enough as the factum of misappropriation of the entrusted property has also to be proved. I am referred in this connection to a recent decision of the Supreme Court in Janeswar v. State of U.P., AIR 1981 SC 1646. It has been recognised in this case that there may be even circumstantial evidence to show that a person had misappropriated the property entrusted to him. The view taken by the High Court that as the appellant had not given any explanation for the shortage of articles in the godowns, he must be presumed to have misappropriated the articles, was not accept