The prosecution must prove the entrustment of property to a public servant beyond reasonable doubt to establish criminal breach of trust under Section 409 IPC.

Aditya Nath Mittal, J. –

The State of U.P. has preferred this appeal against judgment and order dated 06.12.1991, passed by the First Additional Sessions Judge, Unnao, by which learned Additional Sessions Judge, Unnao has acquitted the respondent for the offence punishable under Section 409 Indian Penal Code in Criminal Appeal No.38 of 1991, Police Station-Kotwali, District-Unnao.

2. The brief facts as culled out from the pleadings of appeal are that on 19.09.1979, articles relating to Case Crime No.672 of 1979, under Section 161 Indian Penal Code and Section 5 (2) of Prevention of Corruption Act were deposited in Police Station-Kotwali,District-Unnao. At that time, Head Constable Girija Shankar Vipra was 'Malkhana' Moharrir. After retirement of Girija Shanker Vipra, the charge of 'Malkhana' was taken over by Head Constable 19 C.P. Kunwar Jaiveer Singh Chauhan, the accused-respondent. The articles of Case Crime No.672 of 1979 were entrusted to the accused-respondent on 09.12.1982 and an entry in this respect was made in the 'Malkhana' Register also. On checking, it was found that five Notes of Rs. 10/- denominations, numbering 5/7 665759, 84F388903, 66P253551, 38T675396 and 13V332321 were missing. The said articles were entrusted to the accused and were in his custody. A First Information Report was lodged against the accused-respondent on 04.01.1984 by Circle Officer, City Sri Shitla Prasad at Police Station-Kotwali, District-Unnao. The case was investigated by Sri Beni Madhava Singh, who after completion of investigation, submitted charge-sheet against the accused-respondent under Section 409 I.P.C. The accused-respondent was charged under Section 409 I.P.C., to which, he denied and claimed trial. In support of his case, the prosecution examined PW-1 Head Constable Ram Asrey, PW-2 Head Constable Purushottam Narain Tandon, PW-3 Head Constable (retired) Girija Shankar, PW-4 Deputy Superintendent of Police S.P. Mishra and PW-5 Beni Madhava Singh (Investigating Officer). The prosecution also submitted all the relevant and necessary documents in support of his case.

3. The accused-respondent in his statement under Section 313 Cr.P.C. alleged that wrong testimony was tendered against him and he did not receive any Currency Notes, in his charge. The accused-respondent, however, did not adduce any evidence in his defence. The learned Trial Court after finding the accused-respondent guilty as charged, convicted and sentenced him with two years rigorous imprisonment with fine of Rs. 500/-. In default of payment of fine, the accused-respondent would have to undergo one month simple imprisonment. Being aggrieved against the conviction and sentence, the accused-respondent preferred Criminal Appeal No.38 of 1991, which was decided on 06.12.1991 by the learned First Additional Sessions Judge, Unnao. After hearing both the parties and perusing the evidence on record, learned Additional Sessions Judge allowed the appeal preferred by the accused-respondent and acquitted the accused-respondent.

4. Learned counsel appearing for the appellant-State has submitted that the respondent never disputed that the seized five Currency Notes in denomination of Rs. 10/- each in Case Crime No.672 of 1979, Police Station-Kotwali, District-Unnao were not received or were never entrusted to him. Instead, he had written note on page 169 of 'Malkhana' register.

"uksV 50@& fj'orh uksV uEcjh eky[kkuk esa ryk'k djus ls ugha fey ikus ds dkj.k ftlsa vHkh pktZ esa ugha fn;k tk ldrkA"

5. The above entry proves that the accused-respondent received the aforesaid Currency Notes on 09.12.1982 at the time of taking charge of 'Malkhana', and it will be deemed to be in his custody till 04.02.1984 when they were found to be missing. The prosecution has proved beyond reasonable doubt that the missing Currency Notes were entrusted to the possession of accused-respondent and he has committed criminal breach of trust. The judgment and order reversing the finding of the learned