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1977 Supreme(Sikk) 2
SIKKIM HIGH COURT
MAN MOHAN SINGH GUJRAL, A. M. BHATTACHARJEE, J.
PUSPA KUMAR RAI, ACCUSED-APPELLANT V.
VERSUS
STATE OF SIKKIM
Criminal Appeal No. 10 of 1977,
Decided On : 13 -10 -1977
Entrustment of property is an essential element of the offence of criminal breach of trust under Ss. 405/409 of the I.P.C. Mere employment as a conductor and responsibility for collecting bus fares does not amount to entrustment.
Headnote:
CRIMINAL BREACH OF TRUST - ENTRUSTMENT - ESSENTIAL ELEMENT - SIKKIM NATIONALISED TRANSPORT CONDUCTOR - COLLECTION OF BUS FARES - NO ENTRUSTMENT OF PROPERTY - CHARGE UNDER S.409, I.P.C. NOT MAINTAINABLE - RETRIAL UNDER S.403, I.P.C. NOT JUSTIFIED.
Fact of the Case:
The accused, a conductor employed by the Sikkim Nationalised Transport, was convicted under S.409, I.P.C. for criminal breach of trust in respect of bus fares and freight amounting to Rs. 2,826.60p. The prosecution alleged that the accused had collected the said amount but failed to deposit it or return the booking charts. The accused pleaded guilty to the charge.
Finding of the Court:
The court found that there was no evidence to show that the accused was entrusted with the property in question, i.e., the amount of bus fares and freight. The court held that the mere fact that the accused was employed as a conductor and was responsible for collecting bus fares did not amount to entrustment within the meaning of Ss. 405/409 of the I.P.C. The court also found that there was no evidence to support a charge under S.403, I.P.C. for dishonest misappropriation of property.
Issues: 1. Whether the accused was entrusted with the property in question, i.e., the amount of bus fares and freight? 2. Whether the evidence on record was sufficient to support a charge under S.409, I.P.C. for criminal breach of trust? 3. Whether the case should be sent back for retrial under S.403, I.P.C. for dishonest misappropriation of property?
Ratio Decidendi: 1. The court held that the accused was not entrusted with the property in question because the amount of bus fares and freight was never 'made over' or 'transferred' or 'handed over' to the accused by anyone on behalf of the Sikkim Nationalised Transport. 2. The court held that the evidence on record was not sufficient to support a charge under S.409, I.P.C. for criminal breach of trust because there was no evidence to show that the accused had collected the amount of bus fares and freight or that he had come into possession thereof. 3. The court held that the case should not be sent back for retrial under S.403, I.P.C. for dishonest misappropriation of property because there was no evidence to show that the accused had in fact realized any amount as bus fare or freight or in any way came into possession thereof.
Final Decision: The court allowed the appeal, set aside the conviction and sentence passed by the trial court, and acquitted the accused.
Bhattacharjee, J.:- The accused-appellant has been convicted by the learned Sessions Judge of Sikkim under S.409, I. P. C. on his alleged plea of guilty and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rupees two hundred and in default to undergo rigorous imprisonment for six months more.
2. The case for the prosecution appears to be that the accused was posted as a Conductor to Bus No. SKM 1467 of Sikkim Nationalised Transport during the month of Nov., 1976 and that in such capacity the accused collected a sum of Rs. 2,826.60p. on account of freight and fare but misappropriated the said amount. Shri Tempo Rapgyal, Transport Officer of the Sikkim Nationalised Transport lodged a written report to that effect with the Officer-in-charge, Sadar Police Station, on 16-2-77 and on the basis of this report the case was registered. During the course of investigation it was revealed that the accused had been appointed as a Conductor under the Sikkim Nationalised Transport and was attached to the said Bus No. SKM 1467 and that during the month of Nov., 1976, the accused had to deposit a sum of Rs. 2,826.60p. which the accused had realised from the passengers along with eight booking charts; but the accused neither deposited the amount nor returned the booking charts in spite of several reminders. Later on when in Jan., 1977, Shri Kunzang Namgyal, Superintendent of the Sikkim Nationalised Transport, happened to meet the accused who paid him Rupees two hundred on that day which the Superintendent handed over to the Transport Inspector and the amount was thereafter deposited in Bank. The remaining amount of Rs. 2,626.60p. (sic) was not, however, paid or deposited by the accused and the accused also left Sikkim and started residing in Pedong in West Bengal. The accused was, however, arrested from Pedong and ultimately a charge sheet was submitted against him under S.409 of the I. P. C. on the allegation that the accused in his capacity of a public servant committed criminal breach of trust in respect of the aforesaid amount of bus fare and freight,
3. It appears that the learned Sessions Judge who tried the accused examined four witnesses before framing the charge which was hereunder:-
"That you on or about the Nov. '76 at Gangtok being a Govt. servant to wit bug conductor in S.N. T. and in such capacity entrusted with collecting the bus fare committed criminal breach of trust in respect of cash Rs, 2,626.60p. (sic) and thereby committed an offence punishable under S.409 of the I. P. C. ......".
4. The four witnesses who were examined before framing of the charge were Shri Tempo Rapgyal, Transport Officer of the Sikkim Nationalised Transport at Gangtok, who was examined as P.W. 1., Shri Kunzang Namgyal, Superintendent, Transport in the Sikkim Nationalised Transport, who was examined as P.W. 2, Shri R. C. Sharma, Cashier in the Sikkim Nationalised Transport, who was examined as P.W. 3, and Shri K. P. Topden, S.I. of Police, who investigated the case and submitted charge-sheet and who was examined as P.W. 4.
5. P.W. 1, Tempo Rapgyal, only proved certain reports being Exts. 1 and 2 made to him by R. C. Sharma, P.W. 3, against the accused and also his report, being Ext. 3 to the Deputy General Manager (Operation) of the Sikkim Nationalised Transport and also his report, being Ext. 4, to the Officer-in-Charge, Sadar Police Station which was treated as the First Information report. In Exts. 1 and 2 it was only alleged by P.W. 3, that the accused had not submitted the booking charts and in Ext. 3, the P.W. 1 alleged that the accused had not deposited any amount towards the fares and freights while in Ext. 4, P.W. 1 alleged that the accused had misappropriated the amount collected by him while he was attached to the said bus as the Conductor.
6. Kunzang Namgyal, P.W. 2, only stated that 'he came to know' about the misappropriation by the accused from the report of R. C. Sharma, P.W. 3. He also further stated that he
