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2010 Supreme(HP) 1017
2011 (2) H.L.R. 556
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Mr. Justice Dev Darshan Sud, J.
Ashwani Kumar ….Petitioner.
Versus
State of HP ….Respondent.
Criminal Revision No. 165 of 2003
Decided On: 21st October, 2010
Mr. Ajay Sharma, Advocate
Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General.
The main legal point established is the requirement to establish with certainty the amounts misappropriated in a criminal breach of trust case, and the need for a careful assessment of evidence in criminal trials.
Headnote:
Criminal Breach of Trust - Misappropriation - Indian Penal Code
Fact of the Case:
The petitioner was charged for offences under Sections 408, 409 and 420 of the Indian Penal Code on the allegations of misappropriating a sum of Rs. 5,795/- while working in the Himachal Road Transport Corporation. The trial Court found the petitioner guilty under Section 409 IPC and sentenced him to imprisonment and fine.
Finding of the Court:
The Court found that the lower courts did not adequately consider the evidence and failed to establish with certainty the amounts misappropriated by the petitioner. The Court held that the case should be retried by the trial Magistrate in accordance with the law.
Issues: The issues revolved around the misappropriation of funds by the petitioner and the failure of the lower courts to properly assess the evidence.
Ratio Decidendi: The Court emphasized the need for a careful assessment of evidence in criminal trials and the requirement to establish with certainty the amounts misappropriated. It also highlighted the principles to be followed for re-evaluating evidence in an appeal.
Final Decision: The revision petition was disposed of with a direction for the case to be retried by the trial Magistrate, uninfluenced by the previous judgments.
Dev Darshan Sud, J (oral). The petitioner is aggrieved by the judgment of learned Sessions Judge, Una affirming the judgment and sentence imposed upon the petitioner by the learned Additional Chief Judicial Magistrate, Court No. II, Una sentencing him to undergo simple imprisonment for two months and to pay a fine of Rs. 2,000/- for offence under Section 409 IPC.
2. Brief facts necessary for consideration are that the petitioner was charged for offences under Sections 408, 409 and 420 of the Indian Penal Code on the allegations that when the audit of account of Licensing Branch of Motor Licensing Authority was undertaken in the year 1987, certain discrepancies were found in the accounts. A sum of Rs. 5,795/- was alleged to have been misappropriated by the petitioner herein who was at the relevant time working in the Himachal Road Transport Corporatin (HRTC). The prosecution was based on the note of the Audit Party that challans have not been entered in the register of Motor Licensing Authority. Accordingly, a complaint Ext.PW1/A was filed with the Police Station at Una on the basis of which FIR Ext.PW17/A was registered. The basis of the complaint was the audit report Ext.PW4/A.
3. During investigation, according to the prosecution, the case as alleged for consideration of the Courts below was that the petitioner herein was authorized by the HRTC Una to deposit taxes of the vehicles in the State Bank of Patiala. For this, the petitioner used to apply for advance payment from the department of HRTC, clear Challan Form No. 32-A from the Treasury and thereafter deposit the amount in the State Bank of Patiala. The Motor Licensing Authority handed over the challan forms 32-A Ext.P1 to Ext.P21 and Ext.P22 to Ext.P42 to the police vide memo Ext.PW2/A. The District Treasury was also having one copy of this form. These were handed over to the police and exhibited as Ext.P43 to Ext.P67. the applications made by the petitioner herein claiming advance payment are Ext.PW12/B to Ext.PW12/Z and Ext.PW12/Z-1 to Ext.PW12/Z-9 and the corresponding entries and ledger Ext.PW12/Z-10 to Ext.PW12/Z/11. To tally this information, Branch Manager of the State Bank of Patiala also supplied information vide Ext.PW6/A to ExtPW6/D. 18 witnesses were examined by the prosecution in support of its case. The learned trial Court holds that the petitioner remained as Booking Clerk with HRTC from 29.1.1983 to 31.8.1986. Pawan Kumar (PW4) states that accused was given duties, as per order Ext.PW4/A, which was affirmed by PW10 Regional Manager, HRTC, Una. This part is admitted by the petitioner in his statement under Section 313 Cr.P.C. The learned trial Court has drawn a table at page 11 of the judgment, giving the details of money allegedly/purportedly misappropriated by the petitioner and holds that he has committed criminal breach of trust, by misappropriating a sum of Rs. 2930/- and accordingly sentenced him under Section 409 IPC.
4. In appeal, two points were urged. The first point was that the HRTC has a set procedure of making the deposit etc. for renewal and this was followed meticulously by the petitioner and the HRTC. The second point urged was that the complaint was filed by the Motor Licensing Authority and is not legally maintainable because at that time the petitioner was not an employee of the Licensing Authority nor has he committed any breach of trust. The learned Appellate Court, after relying upon the statement of PW4 Prem Lal Bhangra, Senior Audit Officer, who had conducted the audit in the office of Motor Licensing Authority and had also visited the Treasury Office to verify the authenticity of challans etc., held that the petitioner had infact mis-appropriated the amount which fact was duly proved. The appeal was, therefore, dismissed.
5. I am at pains to find out any reasoning of the learned Appellate Court. What I have seen in the present case is that because of the cumbersome nature of evidence on record, little attention has been
