Point of Law: Criminal Law – Offence of Criminal breach of trust by public servant, or b banker, merchant or agent – Appeal against Acquittal – Whether Acquittal justified - Prosecution has also to prove that the accused dishonestly misappropriated or converted the entrusted property to his own use or dishonestly used or disposed of it - it is clear that 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. It all depends upon the facts and circumstances of each case - Hence judgment of acquittal recorded by trial court justified.

JUDGMENT :

1. The instant appeal is directed against the judgment dated 18.11.2015 passed by learned Special Judge, Anti-corruption, Kashmir, Srinagar, whereby the respondents herein have been acquitted of the charges for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC.

2. Before coming to the grounds of appeal, let me give a brief background of the facts leading to the filing of the instant appeal.

3. FIR No.72/1997 for offences under Section 5(2) of the J&K Prevention of Corruption Act and Section 120-B and 409 RPC came to be registered with Police Station Vigilance Organization, Kashmir, and investigation of the case was set into motion. After investigation of the case, a charge sheet came to be filed against the respondents herein by the prosecuting agency i.e. appellant herein.

4. As per the contents of the charge sheet, the accused/respondent No.1 during his posting as Assistant Director, Information, Leh, entered into a criminal conspiracy with accused/respondent No.2, where-under a Panasonic fax machine was purchased for an amount of Rs.62,000/- and a Canon Xerox machine was purchased for an amount of Rs.1,25,000/- by accused/respondent No.1 for the office use from accused/respondent No.2. According to the prosecution case, the accused/respondent No.1 paid only a sum of Rs.1,25,000/- to the accused/respondent No.2 which constituted Rs.13,000/- over and above the market price of both machines taken together as were supplied by him. It was further alleged that the accused/respondent No.1 retained an amount of Rs.62,000/- with himself and misappropriated the same. The prosecution further alleged that the aforesaid purchases were made without following the codal formalities and/or seeking administrative approval from the competent authority.

5. It is alleged that the aforesaid lapses came to the notice of the Auditors of the Accountant General’s office and the same was brought to the notice of the Commissioner/Secretary to the Government, Information Department in terms of communication No.OAD/EAP/ 1212-15 dated 09.12.1996. An enquiry was conducted by District Treasury Officer, Leh, who submitted his report and on the basis of the said report, the Director, Information, referred the matter to Vigilance Commissioner, where-after a case came to be registered, investigation was conducted and finally challan was laid before the trial court.

6. The accused/respondents were charged for offences under Section 5(2) of PC Act, 120-B and 409 RPC. The accused denied the charges and claimed to be tried. The prosecution examined as many as twenty-three witnesses to prove the charges against the accused/ respondents whereas accused/respondents examined one witness in defence. The statements of the accused/respondents under Section 342 Cr. P. C were recorded by the learned trial court wherein the accused, besides claiming that there was no admissible evidence against them, contended that the case against them is absolutely false and frivolous.

7. The learned trial court, after discussing the evidence on record, came to the conclusion that the charges against the accused/respondents are not established and, accordingly, they have been acquitted of the charges in terms of the impugned judgment.

8. The appellant-State has assailed the impugned judgment of the learned trial court on the grounds that the evidence has not been appreciated properly by the learned trial court; that the learned trial court has failed to appreciate the fact that the prosecution had been able to prove that the quotations invited by accused/respondent No.1 were fake; that the learned trial court has failed to appreciate that once the entrustment of money to accused/respondent No.1 was established, it was not for the prosecution to prove the precise mode of its misappropriation by the said accused but it was for the accused to account for the same and that the impugned judgment is against the facts and the law.

9. I have heard