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CASE NO.:

Appeal (crl.) 1712 of 1996

PETITIONER:

ANWAR CHAND SAB NANADIKAR

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 17/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 875

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. : The Court of law is described as a temple of justice.

Logically, the Presiding Officer is the "Pujak" and members of staff are

the "Sewaks", It is, therefore, a matter of grave concern when a "Sewak" is

alleged to have misappropriated funds of the temple. Appellant who was the

property clerk in the Court of Judicial Magistrate, First Class, Chikodi,

allegedly misappropriated properties belonging to the Court and sold them

to four other persons who were acquitted by the trial Court along with the

present appellant. While the appellant stood charged for commission of

offence punishable under Section 409 of the Indian Penal Code, 1860 (in

short the 'IPC') the rest four stood charged for commission of offence

punishable under Section 411 IPC. The prosecution alleged that while the

properties in question were under the domain of the appellant, he sold them

to accused nos. 2 to 5 during the period 2.3.1979 to 6.6.1985 and,

therefore, committed the offence as alleged. After charge was framed all

the five persons faced trial before the Principal Civil Judge and Judicial

Magistrate, First Class, Chikodi, who by judgment dated 4th July, 1989 held

that all the accused persons were not guilty of the changes. He, inter

alia, observed that the evidence was not satisfactory regarding entrustment

and misappropriation.

The State of Karnataka preferred an appeal before the Karnataka High Court

and the Division Bench by the impugned judgment held that no interference

was called for in the case of the other four accused who were acquitted. So

far as the present appellant is concerned, it was held that the accusations

were established by the evidence on record. During the pendency of the

appeal the Court felt that there were some aspects which were required to

be gone into, and, therefore, by exercise of power under Section 391 of the

Code of Criminal Procedure, 1973 (for short the 'Code') directed certain

materials to be brought on record by the Trial Court. That was done. After

that by the impugned judgment, the High Court convicted the appellant for

commission of offence under Section 409 IPC and sentenced him to undergo

imprisonment for one year.

In support of the appeal, learned counsel for the appellant submitted that

the evidence was unreliable and both the trial Court and the High Court did

not place reliance on major portion of the evidence. Further the

ingredients necessary to bring home accusations under Section 409 were not

present. Strong reliance was placed by the appellant on decision of this

Court in Rabindra Kumar Dey v. State of Orissa, AIR (1977) SC 170 to

contend that the High Court's judgment is not tenable. It was submitted

that only entries in the books of accounts were made by the accused and

there was nothing beyond that to show that accused was acting as a property

clerk. Additionally, it was submitted that as noticed by this Court in

Rabindra Kumar Dey 's case (supra) mere entrustment without anything else

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cannot establish accusations under Section 409 IPC.

Section 409 IPC deals with criminal breach of trust by public servant, or

by banker, merchant or agent. In order to bring in application of said

provision, entrustment has to be proved. In order to sustain conviction

under Section 409, two ingredients are to be proved. They are :

(1) the accused, a public servant, or banker or agent was entrusted with

property of which he is duty bond to account for; and

(2) the accused has committed criminal breach of trust.

What amounts to criminal breach of trust is provided in Section 405 IPC.

Section 409 is in essence criminal breach of trust by a category of

persons. The ingredients of the offence of criminal breach of trust are : -

(1) Entrusting any person with property, or with any dominion over

property.

(2) The person entrusted (a) dishonestly misappropriating or converting

to his own use that property; or (b) dishonestly using or disposing of that

property or willfully suffering any other person so as to do in violation -

(i) of any direction of law prescribing the mode in which such trust is

to be discharged; or

(ii) of any legal contract made touching the discharge of trust.

The basic requirement to bring home the accusations under Section 405 are

the requirements to prove con-jointly (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 would generally afford useful

guidance in deciding whether in a particular case the accused had mens rea

for the crime. In response, learned counsel for the State of Karnataka has

submitted that the High Court analysing the evidence on record noticed

fallacies in the conclusions arrived at by the trial Court and, therefore,

has rightly held the accused guilty. The evidence of the magistrate who was

examined as PW-5 clearly shows that the accused was acting as a property

clerk and had custody as well as domain over the courts' properties which

included the articles with which the present case is concerned. The High

Court has considered the similar stand. It was noticed that cogent and

reliable evidence was adduced to show that appellant was working as a

property clerk from 2.3.1979 to 6.6.1985 and that he was entrusted with the

courts' properties and had domain over them including the articles 1 to 23.

It was the stand of the appellant that he did not work as a property clerk

after 2.2.1980. Such a stand has rightly been rejected by the High Court in

view of Awl's evidence. It was noticed by the High Court that the

properties register was Exhibit P-l. On 10.1.1980 the appellant proceeded

on commuted leave for 25 days w.e.f. 4.2.1980 to 28.2.1980 to avail leave

travel concession. In the concerned office order there was no direction to

the appellant to hand over the charge of properties in the court property

room to a witness Harugon. When the appellant admitted that he had gone on

leave from 4.2.1980 to 28.2.1980 and as rightly held by the High Court

there is no material to show that after returning from leave the accused

had not assumed office, this plea is clearly untenable because as a normal

consequence after returning from leave the appellant is supposed to have

taken over as property clerk. That apart, there was ample material to show

that he was only maintaining Ex. P-l register even thereafter till 6.6.1985

and producing before Court MOS, as and when required.

Essentially the question is whether the analysis of the High Court in view

of the evidence on record is sustainable. We find that the factual aspects

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have been highlighted by the prosecution to show that accused was guilty.

The decision in Rabindra 's case (supra) is of no assistance to the

accused-appellant because in that case there was no material to show any

mens rea apart from the fact that the entrustment itself was not fully

established. The accusations were not brought to the notice of the accused.

Additionally, his explanation as offered was not examined at all. Factual

scenario being different in the present case the conclusions arrived at in

the decision sought to be relied have no bearing so far as present case is

concerned, as the accusations have been fully established. The evidence of

PWs 1, 8 and 10 conclusively establish that accused-appellant was in-charge

of the properties and he could not either produce those articles or

properly account for them when he was asked to do so, as was obligated for

him.

In Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, AIR (1960)

SC 889, it was held as follows :

"To establish a charge of criminal breach of trust, the prosecution is not

obliged to prove the precise mode of conversion, misappropriation or

misapplication by the accused of the property entrusted to him or over

which he has dominion. The principal ingredient of the offence being

dishonest misappropriation or conversion which may not ordinarily be a

matter of direct proof, entrustment of property and failure, in breach of

an obligation, to account for the property entrusted, if proved, may in the

light of other circumstances, justifiably lead to an inference of dishonest

misappropriation or conversion. Conviction of a person for the offence of

criminal breach of trust may not, in all cases, be founded merely on his

failure to account for the property entrusted to him, or over which he has

dominion, even when a duty to account is imposed upon him but where he is

unable to account which is untrue, an inference of misappropriation with

dishonest intent may readily be made."

This case was considered in Rabindra Kumar's case (supra). It was held that

proposition cannot be doubted. But the question is whether the explanation

is absolutely false. It is in that background, this Court held that the

accusations were not established. In the present case, the position is

totally different. No explanation, much less plausible has been given. The

High Court is, therefore, right in setting aside the order of acquittal so

far as the appellant is concerned. The appeal fails and is dismissed.