Babulal vs Shivnarayan - 1987 Supreme(MP) 507

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellant : KL Sethi
For the Respondent: R N Gupta

Headnote:(1) Indian Penal Code, 1860 – S.409 – even temporary retention of money – becomes offence under this section.
       (2) Indian Penal Code, 1860 – S.409 – delivery of goods to servant proved – servant has to explain the loS.
       (3) Criminal Procedure Code, 1973 – S.378 (3) – leave to appeal – requisite mens rea not proved – leave cannot be granted.
        Short Note
       1. The application has not been pressed as against the non – applicant No.2 and the only point for consideration is whether the special leave prayed for should be allowed against the non – applicant No.1.
       2. Inviting Court's attention to the answers given by the non – applicant No.1 to the questions numbers 2 and 3 under section 313 Cr.P.C. 1973, the petitioner's learned counsel urges that the amount in question was admittedly entrusted to the non – applicant No. 1 and he is clearly within the clutches of section 409 I P.C.
       3. Held: Learned counsel for the non – applicant No.1 contends that from the evidence of the defence witness Surendrasingh, Town Inspector (D.W. 3) it is clear that the version that there had been theft at the residence of the non – applicant, has not been challenged by the prosecution and, therefore, no mens rea for the offence can be ascribed to him and that in the circumstances the special leave prayed for deserves to be refused.
       4. Learned counsel for the petitioner has invited this Court's attention to the following excerpt from paragraph – 7 of the decision in Krishna Kumar's case (AIR 1959 SC 1390) : –
       "Therefore when a particular thing has gone into the hands of a servant he will be guilty of mis – appropriating the thing in all circumstances which show a malicious intent to deprive the master of it. As was said by Fazal Ali, J. in Harakrishna Mehtab v. Emperor, AIR 1930 Pat. 200. Now I do not mean to suggest that it is either necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, because under the law, even temporary retention is an offence, provided that it is dishonest........I must point out that the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. As the question of intention is not a matter of direct............proof. the Courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding whether in a particular case the accused bad or had not mens rea for the crime. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused".
       5. Attention was also invited to the following observation in paragraph 9 of the decision in Krishna Kumar's case (supra) : –
       "It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with mis – appropriating the goods of his master the element of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loS. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S.106 of the Evidence Act to throw the onus on him to prove his innocence".
       6. The petitioner's learned counsel also placed reliance on the decision in Vishwa Nath's case (AIR 1983 SC 174) wherein it has been held that refund of amount when act of defalcation is discovered does not absolve the servant of the offence under section 408 I.P.C.
       7. In the instant case, with the evidence regarding theft at the residence of the non – applicant No.1 it cannot be held that prosecution has succeeded in proving beyond reasonable doubt that he had the requisite mens rea for the offence. AIR 1959 SC 1390 and AIR 1983 SC 174 referred to.
       Leave refused.