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PUNJAB & HARYANA HIGH COURT
J.S.Sekhon and A.S.Nehra JJ.
State Of Haryana
Versus
Brij Singh
Criminal Appeal No. 445 of 1987,
Decided On : MARCH 25, 1994
CRIMINAL APPEAL - SECTION 409, INDIAN PENAL CODE - CO-OPERATIVE SOCIETY CASHIER - EMBEZZLEMENT - INTERPRETATION OF SECTION 409, INDIAN PENAL CODE - PUBLIC SERVANT - SECTION 7, INDIAN PENAL CODE - SECTION 408, INDIAN PENAL CODE - CONVICTION AND SENTENCE.
Fact of the Case:
The accused, a cashier of a Co-operative Society, was charged with embezzlement under Section 409 of the Indian Penal Code (IPC) for collecting money from loanees but not depositing it in the bank. The prosecution alleged that the accused embezzled a total of Rs. 18,897/- from seven loanees.
Finding of the Court:
The trial court acquitted the accused, holding that the prosecution failed to prove its case and that the signatures of the accused on the receipts and passbooks were obtained by force at the police station. The High Court, on appeal, reversed the trial court's decision and convicted the accused under Section 408 IPC, holding that the prosecution had proved its case beyond doubt.
Issues: 1. Whether the accused was a "public servant" within the meaning of Section 409 IPC? 2. Whether the prosecution had proved its case against the accused? 3. What offence was made out against the accused?
Ratio Decidendi: 1. The High Court held that the accused, as a cashier of a Co-operative Society, was not a "public servant" within the meaning of Section 409 IPC because the Co-operative Society was not a "Corporation" established by a State Act. 2. The High Court held that the prosecution had proved its case against the accused beyond doubt based on the testimonies of the loanees who paid money to the accused and the forensic report confirming the accused's signatures on the receipts and passbooks. 3. The High Court held that Section 408 IPC, which deals with criminal breach of trust by a clerk or servant, was attracted to the facts of the case, rather than Section 409 IPC, which deals with criminal breach of trust by a public servant.
Final Decision: The High Court allowed the appeal, set aside the trial court's judgment, and convicted the accused under Section 408 IPC, sentencing him to four years of rigorous imprisonment and a fine of Rs. 12,517/-.
A.S.Nehra, J.
1. This appeal is directed against the judgment dated 8.11.1986 passed by the Additional Chief Judicial Magistrate, Hissar, by which Brij Singh respondent has been acquitted of the charge under Section 409, Indian Penal Code.
2. Briefly stated, the facts of the case are as under :-
3. The Assistant Registrar, Co-operative Societies, Hissar, sent a written complaint addressed to the Superintendent of Police, Hissar, alleging therein that one Mohinder Singh, Inspector of the Co-operative Societies, had inspected the accounts being maintained by one Dalip Singh and Brij Singh accused, and reported against both the persons that they had embezzled certain amounts. The allegation against Brij Singh accused was that he had collected an amount of Rs. 36,423/- from different loanees as payments towards loans but had not accounted for the same. In addition thereto, it was reported by Inspector Mohinder Singh that an amount of Rs. 12,193.33 paise, cash in hand, had also been embezzled by Brij Singh accused. It was further mentioned in the report by Inspector Mohinder Singh that Brij Singh accused had thus embezzled an amount of Rs. 48,616.33 paise which he had collected from different loanees. The details of the loanees from whom the amounts were received by Brij Singh accused on a particular date, are mentioned in the report. The names of the loanees are- Harphul son of Jeewan, Sant Lal son of Tansukh, Hari Singh son of Sheo Narain, Ashok son of Jethu Ram, Mange Ram son of Tokha Ram, Birbal son of Sheoji, Gulzari son of Khamana, Pala Ram son of Mam Chand, Sheo Chand son of Jeewan, Ram Narain son of Pat Ram, Mani Ram son of Sholu, Nihala son of Sheo Nath, Ram Kumar son of Sheo Nath, Rugha son of Nand Singh Thakur and Om Parkash son of Parbhu Dayal. On the basis of the complaint received from the Assistant Registrar Co-operative Societies, a case was registered against the accused, vide FIR No. 509 dated 12.11.1976 in Police Station, Hissar, under section 409, Indian Penal Code. Three separate challans were presented against the accused. The present case is one of the three cases, based on that complaint.
4. In the case in hand, the allegations are that the accused collected Rs. 2500/- from Gulzari Lal, Rs. 100/- from Phulla, Rs. 1650/- from Sheo Chand, Rs. 3502/- from Nihala, Rs. 3895/- from Ram Kumar, Rs. 5250/- from Rugha and Rs. 2000/- from Om Parkash and issued receipts to them for these recoveries but did not deposit the said amounts in the accounts of these persons in the Co-operative Bank as per the directions. It is alleged that the accused diverted this money for his personal use and thus embezzled this money in the year 1976. After investigation, the police concluded that the accused was guity of the offence under section 409, Indian Penal Code and put up a challan against the accused. He was charged for an offence punishable under section 409, Indian Penal Code. The charge framed against the accused by the Judicial Magistrate Ist Class, Hissar, on 6.2.1980, reads as under :-
"That you on or about in the year 1976 in the area of Sundawas were working as cashier of Agricultural Co-operative Society, Sundawas, a public servant and, in such capacity, you were entrusted Rs. 18,897/- by PWs, namely, Gulzari Rs. 2500/-, Phulla Rs. 100/-, Sheo Chand Rs. 1550/-, Nihal Rs. 3500/-, Ram Kumar Rs. 3895/-, Raghu Rs. 5250/- and Om Parkash Rs. 2000/-, and you committed criminal breach of trust in respect of Rs. 18,897/- and thereby committed an offence punishable under Section 409, Indian Penal Code."
The accused pleaded not guilty to the charge and the prosecution was asked to lead its evidence. In evidence, the prosecution examined PW-1 ASI Dalip Singh, PW-2 Mohinder Singh, Inspector Co-operative Societies, PW-3 Shish Ram, Managing Director, Central Co-operative Bank, PW-4 Balwant Singh Secretary, Co-operative Credit Service Society Limited, PW-5 Constable Om Parkash, PW-6 Gulzari, PW-7 Phulla, PW-8 Rugha, PW-9 Om Park
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