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2009 Supreme(Ori) 498
IN THE HIGH COURT OF ORISSA
B.K. Patel, J.
BISWANATH DAS - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision No. 1315 of 2007
Decided On : 05-03-2009
N. Panda, for the Appellant; Additional Standing Counsel, for the Respondent
The central legal point established in the judgment is the requirement for the prosecution to prove entrustment of property and dishonest misappropriation with a wrongful intention to establish criminal breach of trust under section 409 of the Indian Penal Code.
Headnote:
Criminal Breach of Trust - Misappropriation of Money Orders - Indian Penal Code
Fact of the Case:
The petitioner, a postman, was convicted under section 409 of the Indian Penal Code for misappropriating money from money orders. The prosecution alleged that the petitioner forged signatures of payees and misappropriated various amounts payable under different money orders.
Finding of the Court:
The court found the petitioner guilty of misappropriating money payable under three money orders based on the evidence of certain witnesses. However, the court held that there was no evidence beyond reasonable doubt to establish the misappropriation of money payable to specific payees.
Issues: The main issue was whether the petitioner had dishonestly misappropriated the money payable under the money orders, and whether the evidence presented by the prosecution was sufficient to establish guilt beyond reasonable doubt.
Ratio Decidendi: The court emphasized that to prove criminal breach of trust under section 409 of the Indian Penal Code, the prosecution must establish the entrustment of property and dishonest misappropriation with a wrongful intention. The court also highlighted the importance of evidence beyond mere failure to account for the property entrusted.
Final Decision: The court allowed the revision and set aside the judgments and orders of the lower courts, acquitting the petitioner.
JUDGMENT :
B.K. Patel, J. - By the judgment and order dated 05.02.2007 passed by learned C.J.M., Jagatsinghpur in G.R. Case No. 120 of 1996 (Trial No. 42 of 2001), the Petitioner was convicted u/s 409 of the Indian Penal Code (for short the 'I.P.C') and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- (Rupees five thousand), in default to undergo rigorous imprisonment for four months. In Criminal Appeal No. 3 of 2007 preferred by the Petitioner, while upholding the Petitioner's conviction u/s 409 of the I.P.C., the learned Additional Sessions Judge, Jagatsinghpur modified the sentence directing the Petitioner to undergo rigorous imprisonment for two years and pay a fine of Rs. 4,000/- (Rupees four thousand), in default to undergo rigorous imprisonment for three months. Being aggrieved, the Petitioner has preferred this revision.
2. The Petitioner was working as a postman of Nalibar Sub-Post Office. Case was registered by the Officer-ln-Charge of Tirtol Police Station and investigation was taken up by S.I. of Police P.W.13 on presentation of F.I.R. Ext.1 by informant P.W.2, the Postal Sub-Divisional Inspector, Kujanga. It was alleged that the Petitioner forged the signatures of the payees and misappropriated (i) Rs. 1,000/- payable to Natabar Das P.W.6 on 09.11.1991 under Money Order No. 359 issued on 04.11.1991, (ii) Rs. 1,000/ - payable to Kanduri Parida on 24.12.1991 under Money Order No. 2822 issued on 18.12.1991, (iii) Rs. 1,000/ - payable to Babuli Samal P.W.1 on 24.09.1991 under Money Order No. 1391 issued on 20.09.1991, (iv) Rs. 100/- payable to Santilata Rout P.W.8 on 27.12.1991 under Money Order No. 2964 issued on 21.12.1991 and (v) Rs. 200/- payable to Purusottam Mohanty P.W.7 on 04.10.1991 under Money Order No. 2380 issued on 27.09.1991. On completion of investigation, charge-sheet was submitted against the Petitioner for commission of offences under Sections 409 and 468 of the I.P.C.
Defence plea was complete denial of the allegations.
In order to substantiate the charge, prosecution examined thirteen witnesses and also relied upon documents marked Ext.1 to 14. P.Ws.1, 2, 6, 7, 8 and 13 have already been introduced. P.W.12 was the Post Master of the concerned Sub-Post Office during the period of alleged occurrence. P.W.5 happens to be P.W.8's son and P.W.9 happens to be P.W.7's son. P.W.3 was the Post Master during the period between 1993 and 1995. P.W.4, who was working as a Postal Assistant of the office of Superintendent of Post Offices, Cuttack, and P.W.10, who was working as an Inspector of Post Office, Keonjhar, were witnesses to seizures. P.W.11, who was working as Assistant Superintendent of Post (Out-door), Cuttack South Division, Cuttack, was also a witness to seizure. He also took zima of documents seized under seizure list Ext.2. It appears that as P.Ws.5 to 9 did not support the allegations, they were subjected to cross examination by the prosecution.
Learned trial Court acquitted the Petitioner of the charge u/s 468 of the I.P.C. Also, learned trial Court appears to have held that allegations in respect of misappropriation of amounts payable under Money Order Nos. 2822 and 1391 were not proved. However, relying upon the evidence of P.Ws.5, 6, 7, 8, 9 and 12, the Petitioner was found guilty of commission of offence u/s 409 of the I.P.C. in respect of money payable under the other three Money Orders.
3. Learned Counsel for the Petitioner submitted that evidence adduced by the prosecution falls far short of proof beyond reasonable doubt to establish that the Petitioner misappropriated any amount payable to P.Ws.6, 7 and 8. Referring to evidence of P.Ws.5 to 9, it was also submitted that payees of Money Orders admit to have received the money payable to them. Prosecution has not led any evidence to indicate that the Petitioner misappropriated or kept with him any such amount for any period with dishonest intention. On the basis of such submissions, it was a
