Entrustment and dishonest misappropriation are essential elements for establishing breach of trust under Section 406 IPC.

ORDER

The sole accused in C.C.No.879/2014 on the files of the Chief Judicial Magistrate, Kasaragod, who is aggrieved by the conviction and sentence imposed on 06.09.2019 and its modification by the appellate court as per the judgment dated 21.11.2023 in Crl.Appeal No.197/2019 on the files of Additional Sessions Court-III, Kasaragod, has filed this Criminal Revision Petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short).

2. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor in detail. Perused the verdicts under challenge.

3. The prosecution case is that the accused herein committed offences punishable under Sections 406 , 465, 468, 471 and 420 of the Indian Penal Code (` IPC ’ for short) and the precise allegation is that the accused, who is none other than the husband of the second witness, obtained 50 sovereigns of gold ornaments gifted to her by her mother during marriage with promise to keep the same in a bank locker. In violation of the entrustment, he had pledged the same in Muthoot Fincorp, Kasaragod, without the consent of the second witness and thereby committed the offence of breach of trust. The other allegation is that he also created forged document for the said purpose and used the same as genuine and thereby cheated the second witness.

4. After investigation, the police laid charge for the said offence and the learned Magistrate took cognizance of the same and on completion of pre-trial formalities, tried the matter. PW1 to PW7 were examined and Exts.P1 to P5 were marked. No defence evidence was adduced. Finally, on appreciation of evidence, the learned Magistrate found that the prosecution successfully proved commission of offence punishable under Section 406 of IPC by the accused while acquitting the accused for the other offences. Accordingly, he was convicted and sentenced to undergo simple imprisonment for six months for the offence punishable under of .

5. The accused filed Crl.Appeal No.197/2019 challenging the verdict of conviction and sentence. Similarly, the victim also filed Crl.Appeal No.17/2020 challenging the same verdict whereby the accused was acquitted for the other offences. The learned Sessions Judge considered both the appeals together and finally on re-appreciation of evidence, found that the conviction imposed against the accused/revision petitioner for the offence punishable under Section 406 IPC is sustainable and also found that his acquittal for the other offences also as sustainable. But thereby Crl.Appeal No.197/2019 at the instance of the accused was dismissed, while partly allowing Crl.Appeal No.17/2020 filed by the victim and modifying the sentence as under:

“Crl.Appeal No.17/2020 is partly allowed by modifying the sentence as follows:

1. That the accused shall undergo simple imprisonment for six months for commission of offence under Section 406 of IPC .

2. That the accused shall also pay compensation of Rs.5,00,000/- to the petitioner IDSI six months under Section 357(3) Cr.P.C. If compensation is realized it shall be paid to PW1.

3. Set off if any is allowed against substantive sentence.

Crl.Appeal No.197/2019 is dismissed.”

6. While assailing the concurrent verdicts of conviction and modified sentence imposed by the appellate court, the learned counsel for the accused argued at length to substantiate that the offence punishable under Section 406 of IPC is not made out from the evidence and, therefore, the trial court as well as the appellate court went wrong in finding that the appellant committed offence punishable under of . The learned counsel for the accused also challenged the sentence imposed by the trial court for 6 months and also the modified sentence imposed by the appellate court. Going by the verdict of the trial court, the trial court has given emphasis to the evidence of PW1 supported by the evidence of PW2, the mother of PW1, apart from the evidence of PW3, the manager of