Dishonest misappropriation is an essential element of the offense of criminal breach of trust under Section 409 of the Indian Penal Code.

JUDGMENT

V.S. Aggarwal, J. - The present revision petition has been filed by Harcharan Singh (hereinafter described as the petitioner) assailing the judgment of the learned Chief Judicial Magistrate, Sangrur dated January 30, 1986 and that of the learned Additional Sessions Judge, Sangrur dated November 17, 1987. The learned Chief Judicial Magistrate had held the petitioner guilty of the offence punishable under Section 409 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/-. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for one year. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Sangrur.

2. The relevant facts are that the petitioner was working as a Store-keeper of the Punjab School Education Board Sale Depot at Sangrur. The verification of the articles of the store and the accounts was done under the orders of the Punjab School Education Board from February 02, 1981 to February 09, 1981. The audit party reported that there was shortage of books and forms worth Rs. 92,216.77. This shortage was alleged to have occurred while the petitioner was in custody of the said articles and was posted as Store-keeper. The petitioner had admitted the shortage in writing. A report in this regard was made to the Police Station and First Information Report was recorded against the petitioner. The actual checking and physical verification of the stock was undertaken by Sadhu Ram in presence of Piara Singh, Kishan Lal Khanna and Mangat Rai. After the investigation was completed, report under Section 173 Code of Criminal Procedure was submitted.

3. The learned trial court prima facie found that offence under Section 409 Indian Penal Code was drawn. A charge was framed against the petitioner, to which he pleaded not guilty and claimed a trial. The defence of the petitioner was that checking was not done in his presence, he was not entrusted with the books and forms nor he had committed any criminal breach of trust. The learned trial court as well as the learned Additional Sessions Judge on appraisal of the evidence found that the shortage occurred while the petitioner was the Store-keeper. Once it is proved that the petitioner was entrusted with these articles, he is liable for the shortage and accordingly they held the petitioner guilty of the offence punishable under Section 409 Indian Penal Code. Hence the present revision petition.

4. The main argument advanced by the learned counsel for the petitioner has been that even if it be assumed for the sake of argument that shortage occurred while the petitioner was the Store-keeper, still when there is nothing further that has been proved, it cannot be taken that offence under Section 409 Indian Penal Code is proved.

5. To appreciate the said argument, reference can well be made to the relevant provisions of law. In this regard, shorn of explanations 1 and 2 to Section 405 of the Indian Penal Code reads :

"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses, disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits its "criminal breach of trust".

Section 409 of the Indian Penal Code provides that whoever, being in any manner entrusted with the property or the dominion over the property in his capacity as public servant commits criminal breach of trust can be punished under the said provision.

6. It is obvious from aforesaid that firstly there should be entrustment of the property and secondly, which is important in the facts of the present case, it must be established that the said person ha