The prosecution must prove the case beyond reasonable doubt, and the burden of proof cannot be shifted towards the accused. The absence of criminal breach of trust in certain situations was also highlighted.

ORDER :

Rajeev Kumar Shrivastava, J.

1. This order will govern the final disposal of Criminal Revision No. 856/2017 and Criminal Revision No. 874/2017 as both the petitions arise out of common judgment. The facts necessary for adjudication of this matter are taken from Criminal Revision No. 856/2017.

2. This petition under Section 397/401 of Cr.P.C. has been preferred by the petitioner challenging the judgment dated 22.08.2017 passed by Second Additional Sessions Judge, Karera District Shivpuri in Criminal Appeal No. 115/2017 whereby confirming the judgment dated 18.02.2017 passed by Judicial Magistrate First Class, Karera in S.T. No. 602/2007 wherein the Court below has convicted the petitioner for the offence under section 409 of IPC and sentenced to three years RI with fine of Rs. 2000/- with default stipulation.

3. Prosecution story, in short, is that Chief Executive Officer, Janpad Panchayat, Narwar, District Shivpuri made a complaint to the Police Station alleging that during the period when the present petitioner was posted as Secretary and revisionist Babu Singh was posted as Sarpanch in the financial year 2005-06 & 2006-07 has withdrawn and amount of Rs. 7,32,495/- for construction and they failed to do the construction and used the money for their personal purpose. Accordingly, FIR was lodged for the offence punishable under section 409 of IPC.

4. After completion of investigation, challan has been filed and charges were framed. The trial Court vide judgment dated 18.2.2017 convicted the petitioner for the offence punishable under section 409 of IPC and sentenced for three years RI with fine of Rs. 2000/-. Against the said judgment, the petitioner preferred Criminal Appeal No. 115/2017 which was dismissed vide judgment dated 22.08.2017 by affirming the judgment passed by the trial Court. Being aggrieved by the impugned judgment, this Criminal Revision has been filed for setting aside the impugned judgment.

5. Learned counsel for the petitioner contended that no case is made out against the petitioners as the alleged amount was not completely withdrawn by the petitioners rather prosecution has failed to prove that the amount withdrawn was misappropriated by the petitioners. As it is the version of the prosecution that the work done was not evaluated as the hand pump as well as the cleaning area were filled with water and the case is registered under section 409 of IPC, therefore, considering the criminal jurisprudence, burden of proof cannot be shifted towards the petitioners/accused. Hence prayed for allowing the petitions by setting aside the impugned judgments passed by both the courts below.

6. In support of his arguments, learned counsel for the petitioner placed reliance on the judgment passed by the Hon. the Apex Court in Kailash Kumar Sanwata Vs. State of Bihar and Another reported in (2003) 7 SCC 399, which reads as under:-

"9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons, who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which could generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.

10. In the instant case even if it was proved as contended by the learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly mis appropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of the prosecution that money which was given to the accused