HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CRR No. 46/2008

IA No. 36/2008 c/w

CRR No. 47/2008

IA No. 37/2008

Reserved on: 27.04.2023

Pronounced on: 19.07.2023

Bishan Dass, Age 57 years, S/o Janki

Prashad, R/o H.No. 40, Dogra Hall,

Jammu.

…Petitioner(s)

Through: Ms. Zainab Shamas Watali, Advocate.

Vs.

State of J&K Through SHO Police Station Katra. ...Respondent(s)

Through: Sh. Suraj Singh, Advocate.

CORAM: HON‟BLE MR JUSTICE MOHAN LAL, JUDGE

J U D G M E N T

1. Instant Criminal Revision under Section 439 r/w Section

561-A of Code of Criminal Procedure (hereinafter referred as

the „Code‟) has been preferred by petitioner/convict against the

judgment/order dated 27.08.2002 passed by the Court of

learned Sub-Judge (Judicial Magistrate 1

st

Class) Katra and the

judgment/order dated 20.09.2008 passed by the learned

Sessions Judge Reasi, whereby, petitioner/convict has been

convicted for the commission of offence punishable under

Section 409 RPC and sentenced to undergo simple

imprisonment for the period of two years and a fine of Rs.2000/,

and in default of payment of fine, petitioner/convict has been

ordered to further undergo simple imprisonment for a period of

six months.

2. Being aggrieved of & dissatisfied with the impugned

judgments, petitioner has questioned their legality, proprietary

and correctness and has sought their setting aside on the

following grounds:-

(i) that the allegations leveled against the petitioner/convict

are, that on 27.06.1991 Chief Accounts Officer of Shrine

Sr.No. 1

2 CRR No. 46/2008

Board through a written communication informed the J&K

Bank Ltd. Branch Katra that the amount deposited by the

Shrine Board in the Katra Branch of Jammu & Kashmir

Bank in its Account No. 1804 on 15.11.1989 was not

credited into their account, on further enquiry and

reconciliation of the accounts amounts of Rs. 12650/-,

Rs.11509/-, Rs. 11337/-, Rs. 27136 and Rs. 16601/-

deposited by the Shrine Board were credited into their

Account No. 1804, accordingly Manager of J&K Bank

Katra at the instance of his higher authorities lodged a

written complaint with the Police Station Katra whereby

FIR No. 192/1991 and FIR No. 72/1992 were registered

under Section 409/420 RPC against petitioner/convict,

after completion of investigation two charge

sheets/challans were presented before the Court of

learned Sub-Judge (JMIC) Reasi for the commission of

offences punishable under Sections 409/420 RPC

separately on 29.06.1992 which were transferred to the

Court of learned Sub-Judge (JMIC) Katra;

(ii) that the trial court only framed charges against the

petitioner/convict for the commission of offence

punishable under Section 409 RPC which is vague and

ambiguous as the ingredients of the offence have not

been clearly brought out and an attempt has been made

to convert the simple case of oversight into a criminal act,

after the prosecution led the evidence statement of

petitioner/convict was recorded under Section 342 CrPC

even though there was no evidence against the petitioner

and the defense was very much established yet the trial

Court convicted the petitioner/convict and sentenced him

for two years imprisonment and a fine;

(iii) that the petitioner/convict challenged the said impugned

judgment/order in an appeal before the Court of learned

Sessions Judge Reasi who too wrongly appreciated the

facts thereby upholding the order of learned Sub-Judge

Katra, Learned Sessions Judge Reasi took up both the

appeals together and disposed them of vide impugned

judgment dated 20.09.2008, both the judgments /orders

are totally against the well established law and violative of

the petitioner‟s fundamental rights;

(iv) that whether the offence of criminal breach of trust is

made out in absence of the proof of misappropriation of

the said amount, while examining the petitioner/convict

under Section 342 CrPC it is not necessary to actually

show him the documents placed on record and proved by

the prosecution, is the trial vitiated as the

petitioner/convict is not given specific/complete notice of

the evidence adduced against him as both oral and

documentary evidence has not been put to him under

Section 342 CrPC and the omission amounts to depriving

him of the opportunity to defend himself which has

resulted in miscarriage of justice ?;

(v) that the Trial Court as well as the 1

st

Appellate Court have

failed to take into consideration the fact that the

prosecution has not established any „dishonest intention‟

and „dishonest misappropriation‟ on the part of the

3 CRR No. 46/2008

petitioner with regard to the amount entrusted to him, the

trial court as well as the appellate court have not

appreciated that the prosecution has not even been able

to establish the conversion of the amount to the

petitioner‟s own use or any dishonest disposal of the

same which is an important ingredient of the offence

under Section 409 RPC;

(vi) that the trial court and the appellate court have not

appreciated the fact that on 15.11.1989 an amount of

Rs.6660/- found in excess by the petitioner was

immediately brought to the knowledge of his superiors by

him and the same was deposited by the petitioner in the

Sundry Account of the Bank which amply makes the

honest intention of the petitioner clear beyond any

shadow of doubt, this important fact has not at all been

appreciated or explained either by the prosecution or by

the trial or appellate court;

(vii) that the alleged „confessional statement‟ upon which the

learned trial court and the appellant court have relied

heavily is not admissible in evidence as it is not recorded

voluntarily by the petitioner himself, the said confessional

statement has been recorded/written by some Clerk who

was not at all competent to record the same, the said

alleged confessional statement is also inadmissible on

the account that it was made before the District Manager

of the J&K Bank and other high officials who are persons

in authority much before any FIR was lodged against the

petitioner, the extra judicial confession should be credible

however in the instant case it is absolutely apposite,

further there is grave contradiction in the statement of the

prosecution witnesses about the scribe of the said

confessional statement, petitioner in his statement

recorded under Section 342 C.rPC has stated that he was

pressurized to sign the confessional statement and he

has put his signature under duress, there is serious

contradiction regarding the fact as to who wrote the

confessional statement, the charge sheet depicts that the

said confessional statement was written by the petitioner

while as the prosecution witnesses say that he was the

scribe of the same, the conflicting evidence is sufficient to

make it inadmissible, the confession is inadmissible for

the reason that same has been secured from the

petitioner/convict by inducement, threat and promise

made by the District Manager and other superiors who

are persons in authority, neither the trial court nor the

appellate court has gone into the said fact as to whether

the alleged confession was made voluntarily;

(viii) that the report of Assistant Director FSL has been relied

upon heavily without examining him before the trail court

and not allowing him to cross-examine, the report has

been illegally treated as the report of the chemical

examiner under Section 510 Cr.PC, the report does not

indicate that same has been signed by the chemical

examiner, moreover the report of FSL and the evidence

of Naib Tehsildar in whose presence the specimen

signatures of the petitioner have been obtained has not

4 CRR No. 46/2008

been put to the accused nor brought into his notice while

recording his statement under Section 342 CrPC, this

omission is sufficient to hold the trial as vitiated entitling

the petitioner/convict to acquittal;

(ix) that not even a single person from the Shrine Board came

forward to depose that it was the petitioner with whom

they deposited the amount in question, even if the

prosecution has produced some receipts allegedly

bearing signatures of the petitioner no evidence

whatsoever has been led by the prosecution which could

prove the entrustment of money to the petitioner, the

signatures on the receipts do not prove the ingredients of

Section 409 RPC, trial court and appellate court have

seriously fallen in error in not appreciating that

misappropriation has not been established by the

prosecution, the impugned judgments/orders are based

on sheer presumptions and unfound conjectures;

3. Sh. Suraj Singh, Ld. GA appearing for the respondents,

has sought the confirmation of the impugned judgments of

conviction by canvassing arguments, that the prosecution has

examined as many as eight (8) witnesses out of listed ten (10),

the evidence brought on record by the prosecution during the

course of trial is cogent, convincing and is reliable as all the

prosecution witnesses have supported the case of the

prosecution regarding the entrustment of amount

misappropriated by the petitioner/accused. It is argued, that the

oral as well as documentary evidence brought on record by the

prosecution has convincingly proved that the petitioner who was

working as Cashier in the J&K Bank Branch Katra at the

relevant time of occurrence of 15.11.1989 received Rs.27136/-

vide receipt No.71 dated 02.04.1991 and Rs. 16601/- vide

receipt No.30 dated 12.04.1991 from Shrine Board and did not

credit the said amount into the account No. 1804 of Shrine

Board, and instead dishonestly misappropriated the same, thus,

the charge for the offence under Section 409 RPC is proved

against the petitioner/convict beyond any reasonable doubt. It is

moreso argued, that petitioner/convict has been rightly

convicted by the trial court of Ld. Sub-Judge (JMIC) Katra vide

impugned judgment dated 17.08.2002 which has been rightly

upheld by the appellate court of Ld. Sessions Judge Reasi vide

impugned judgment dated 20.09.2008.

5 CRR No. 46/2008

4. Ms. Zainab Shamas Watali, learned counsel for the

petitioner, has sought the reversal/setting aside/quashment of

impugned judgments of conviction, and has further sought the

acquittal of the petitioner/convict on the following counts:-

(i) Confessional Statement/Note/Extra-Judicial Confession

Made By Petitioner/Convict Hit By Section 24 Of

Evidence Act And Is Inadmissible In Evidence:-

It is argued, that PW-1 Adarsh Gupta (Manager J&K

Bank Branch Katra) informed PW-6 Netar Parkash Anand

(District Manager J&K Bank Udhampur) who did not give

any written charges to the petitioner/convict who could have

properly and under law explained his position and contrary

to this a written confession was allegedly extracted from the

petitioner at 7.10 pm after office hours; as per the statement

of PW-6 Netar Parkash Anand before the Trial Court on 24-

10-1991 in his examination-in-chief that Branch Manager

J&K Bank Katra informed him that the petitioner/ accused

misappropriated the money of Shrine Board and on the

same day he alongwith PW-7 Shesh Kumar Khajuria went

to Katra to investigate the case, accused confessed his guilt

and the confessional statement was written by the accused

himself and PW-7 Shesh Kumar Khajuria (Manager District

Office Udhampur) also signed the confessional statement

as a witness alongwith PW1 Adarsh Gupta, while as PW-6

Netar Parkash Anand in his cross-examination has stated

that sometimes the Cashier can make excess payment

inadvertently which means that the benefit of doubt should

have been given to the petitioner/ accused, PW-6 Netar

Parkash Anand could not led evidence to the effect that

accused has spent the misappropriated money for his own

use; the impugned judgments are purely based on the

confessional note/statement of the petitioner/convict which

is hit by Section 24 of the Evidence Act, as the confession

has been made by the petitioner/convict under inducement,

threat and promise and before the person in authority i.e.,

Manager of the Bank, the said extra-judicial confession was

made by the petitioner/convict under pressure of the officers

and even application in respect of repayment of Rs.6000/- in

installments was written by the petitioner under pressure

from the police and the Bank officers, therefore, the

confessional statement is inadmissible in evidence, on this

count the impugned judgments needs to be quashed.

Reliance has been placed on, 1961 CriLJ 258 [Mst. Viran

Wali Vs. State].

(ii) Inordinate Delay of 2 Years In Lodging FIR Against

Petitioner/Convict:-

It is argued, that PW-2 Chaju Ram (peon of the bank)

could not prove that the petitioner/convict has

misappropriated the amount, PW-3 Manohar Lal Sharma

(Chief Accounts Officer Mata Vaishno Devi JI Shrine Board)

has neither provided any audit report nor reconciliation

document to the police during the investigation and the

same has also not been produced in the trial court, the audit

of the accounts is conducted in every financial year in all the

6 CRR No. 46/2008

institutions including Shrine Board but surprisingly no

complaint of any misappropriation of money or any

irregularity has been brought to the notice of the J&K Bank

Branch Katra for almost two (2) years and without seizing

audit report or reconciliation document and not producing it

with the charge sheet, the impugned judgments/orders are

shrouded with serious doubts entitling the petitioner/convict

benefit of doubt leading to his acquittal, as per the charge

sheet original cash book has been kept on supurdnama of

PW-4 Bhuvinder Kumar who has not been examined by the

prosecution, the original cash book was produced before

the trial court and only reliance has been placed on the

photocopies which have been exhibited contrary to the law

regarding admissibility of the documentary evidence, the

person who conducted reconciliation of the accounts has

not been cited as witness and the link is missing in order to

establish the offence, PW-4 Bhuvinder Kumar custodian of

original cash book has remained unexamined causing

serious prejudice to the petitioner/convict making the

prosecution case doubtful and concocted, the employees of

Shrine Board who used to deposit various amounts on

different dates in the Bank were not cited as witnesses nor

named in the Challan, occurrence has taken place on

15.11.1989 wherein on reconciliation of account No. 1804 of

Shrine Board it was found that an amount of Rs. 12658/-

deposited vide receipt No. 31 dated 15.11.1989 by Shrine

Board Katra had not been credited in the aforesaid account

of Shrine Board and thereafter, after enquiry against

accused, on 18.11.1991 after more than 2 years FIR has

been lodged against accused, the inordinate delay in

lodging FIR has remained unexplained which quite often

results in embellishment which is a creature of afterthought,

on account of delay the report not only gets bereft of the

advantage of spontaneity, danger creeps in of introduction

of colored version and such delay would be fatal for the

prosecution making the prosecution story unbelievable and

unworthy of reliance.

(iii) Prosecution Has Failed To Prove Offence Of 409 RPC:-

It is vehemently argued, that to prove the criminal

breach of trust under Section 409 RPC against the

petitioner/convict, the prosecution was required firstly to

prove the „entrustment of the property‟ and secondly

„dishonest misappropriation‟ of the same or converting it to

his own use by the petitioner/convict; PW-1 Adarsh Gupta

(Branch Manager Katra) in his statement made before the

trial court has stated that the statement of accounts were

sent to the Shrine Board regularly from 15.11.1989 to

27.06.1991 and during the said period the Shrine Board

never complained any misappropriation of money, that from

their Account No. 1804 some money has been transferred

to other accounts of the Shrine Board, therefore, even if the

receipts have been issued by the petitioner/convict, the

prosecution has not been able to prove the ingredients of

the offence under Section 409 CrPC as no witnesses

examined by the prosecution has deposed any incriminating

evidence against the petitioner/convict of having committed

any breach of trust and misappropriation of the amount and

7 CRR No. 46/2008

converting it into his own use, the audit report and

reconciliation document which forms the base of the charge

sheet produced against the petitioner have neither been

made part of the charge nor produced before the trial court,

the charge of misappropriation of Rs.12660/- on 15.11.1989

is incorrect, the amount alleged to have been

misappropriated on that day does not tally with the charge

as the petitioner is alleged to have deposited Rs.6660/-

which cash was found in excess and deposited in Sundry

Account of the Bank, most of the prosecution witnesses

have stated that the petitioner must have paid the excess

amount inadvertently which goes to show that there was no

dishonest misappropriation of money on the part of the

petitioner, instant case is a fit case where benefit of doubt

should have been given to the petitioner/convict as by no

stretch of imagination the case has been made out against

the petitioner. To support her arguments, learned counsel

has relied upon the judgments (i) 2005(1) JKJ 245 [Janak

Raj Vs. State of J&K], (ii) 1998 CriLJ 3771 [The State of

Maharashtra Vs. Mohan Radhkrishna Pednekar], & (iii)

Criminal Appeal No. 337/2003 [M/S Rahmania Coffee

Works & anr. Vs. State rep by Deputy Superintendent of

Police Special Crime Branh Besant Nagar Madras ,

rendered by High Court of Madras].

5. I have heard Ms. Zanab Samas Watali, learned counsel

for the petitioner and Mr. Suraj Singh, learned Government

Advocate appearing for the respondents. I have perused the

record of the trial court, the impugned judgments rendered by

trial court and appellate court, thoroughly examined the

evidence led by the prosecution and by the defense and have

also scanned the ratios of the judgments relied upon by the

learned counsel for the petitioner.

6. It is pertinent to reiterate here that the case of prosecution

has been tried to be proved by the evidence of eight (8)

prosecution witnesses out of the listed ten (10) in the charge

sheet namely, PW-1 Adarsh Gupta (Manager J&K Bank Branch

Katra), PW-2 Chaju Ram (Peon of J&K Bank), PW-3 Manohar

Lal Sharma (Chief Accounts Officer, Mata Vaishno Devi Ji

Shrine Board), PW-5 Joginder Kumar Anand (Cashier of Shrine

Board Katra on 29-11-1991), PW-6 Netar Parkash Anand

(District Manager J&K Bank Udhampur), PW-7 Shesh Kumar

Khajuria (Manager District Office Udhampur), PW-8 Bushan

Gupta (Naib Tehsildar Katra) & PW-9 Baldev Singh (I/O).

8 CRR No. 46/2008

7. Petitioner/convict before the trial court, to demolish the

prosecution evidence, has examined only one witness in

defense namely DW-1 Vishnu Ram Mangotra.

8. To prove the charges against the petitioner/convict, the

prosecution has adduced the oral as well as the documentary

evidence. The prosecution has examined its witnesses as

under:-

PW

No.

Name of the Witness Role

1. Adarsh Gupta (Manager J&K Bank

Branch Katra)

Registered FIR against

Petitioner/accused).

2. Chaju Ram (Peon of the Bank) Witness to seizure of Bank

records.

3. Manohar Lal Sharma (Chief

Accounts Officer, Mata Vaishno

Devi Ji Shrine Board).

Witness to seizure memo

and application.

5. Joginder Kumar Anand (Cashier of

Shrine Board Katra).

Witness to seizure memo

EXPW-3/F of five( 5) receipts

from him.

6. Netar Parkash Anand (District

Manager, J&K Bank Udhampur)

Witness to confessional

statement/note EXPW-1/A

made by accused.

7. Shesh Kumar Khajuria (Manager,

District Office, Udhampur)

Witness who recorded the

confessional statement of

accused EXPW-1/A in his

handwriting in presence of

PW-1 & 6, Adarsh Gupta and

Netar Parkash Anand.

8. Bushan Gupta (Naib Tehsildar,

Katra)

Witness to the specimen

writings of the petitioner/

accused.

9. Baldev Singh (Investigating Officer) Conducted investigation.

9. Before coming to the conclusion whether the prosecution

has successfully substantiated the charges against the

petitioner/convict beyond hilt, I find it pertinent to give brief

resume of evidence led by the prosecution before the trial court.

Relevant portions of the testimonies of the prosecution

witnesses and defense witness can be summarized as under:-

9 CRR No. 46/2008

PW-1 Adarsh Gupta (Manager J&K Bank Branch

Katra, Registered FIR against petitioner/accused) in his

statement deposed that he knows the accused. That on

15.11.89, he was posted as Manager with J&K Bank Katra and

the accused was posted as cashier with the said Bank at that

time. That Shri Mata Vaishno Devi Ji Shrine Board was

maintaining A/C 1804 with the said Bank at that time. That on

15.11.89, the shrine board had deposited an amount of Rs

12658/- with the bank in the said Account and the accused had

issued receipt in respect of the same but the entry was not

made by him in the scroll book nor the voucher was given to the

bank by the accused. That on the same day when the cash was

being closed, the accused expressed that he had excess cash

of Rs 6,660/-. That the said amount was therefore, deposited in

the sundry account of the Bank vide voucher No. 1. That in

June, 1991, the bank received a letter from the Shrine board

wherein, it was complained that the amount of rupees 12658/-

deposited by them on 15.11.89 had not been credited to their

account. They produced the receipt Mark-A showing the deposit

of the said amount with the bank. That when the receipt was

shown to the accused, he admitted its correctness, but claimed

that excess payment of Rs 6,660/- deposited by him related to

this receipt and that payment in respect of the rest of the

amount was in-advertently made by him without making any

entry. That accused made a written note Marked-B in this

regard. That accused accepted in writing that he will make the

re-payment of Rs, 6000/- in monthly installment. That on

24.10.91, another letter was received by the Bank from the

Shrine board wherein, it was complained that they had

deposited total amount of Rs. 79,250/- with the bank, but the

same is not reflected in their account. The letter is Marked-D.

That on the same day, he informed the District Manager about

this and the same evening, District Manager came to the Bank.

He made enquiries from the accused. That at about 7/7.30 P.M.

on 24.10.91, the accused accepted that he had miss-

appropriated the said amount. That accused also sought to re-

pay all the outstanding amount. He executed the note

EXPW1/A in this regard. That voucher for Rs. 6,660/- dated

15/16- 11/89 Mark-D bears the signatures of the accused that

he obtained permission from his department orally and lodged

the report EXPW1/B. He also handed over the six receipts and

confession letter to the police and FIR EXPW1/C as registered

by the police which bear his signatures. That the report was

sent back by the SHO in order to make the statement of Shrine

Board up to date and accordingly letter was written to the

Shrine Board. That on 13.11.91, The Shrine Board wrote to

them that cash entry up to 27.8.91 was correct and thereafter

the report was again sent to police vide No. 1488 dated

16.11.91. On that report, the police registered the FIR. That

police seized the books of account of relevant transactions vide

seizure memo EXPW1/D. The ledger in respect of Sundry A/C

and scroll book were seized vide memo EXPW1/E. That ledger

was then kept on his supurdnama vide memo EXPW /F. That

10 CRR No. 46/2008

police recorded his statement. In his cross-examination, he

stated that he accused had joined the Katra Branch prior to him.

That the day accused made the confession before the District

Manager, the charge of cashier was taken from the accused

and it was handed over to Bhuneshwar Sharma. That the report

was lodged with Police on 30.10.91. That accused originally

belongs to Finance Department and he was suspended by the

department on 25.11.91. That accused was posted on

deputation with the Bank. That Shri N. P. Anand was the District

Manager whereas, Shri S. K. Khajuria was the Manager District

Office at the relevant time. That he had given the written letter

to the accused under which he made the admission. That the

District Manager made oral enquiry from the accused and no

written charge-sheet was given to him. The District Manager

reached Katra at about 5 Pm and left for Jammu on the same

day at about 7.30 PM after completing the enquiry. That enquiry

was made in his presence and the accused made the

confession in his presence. That time no case had been

registered with the Police nor any instructions had been given

to police to register the case at that time. That he received oral

instructions for the registration of case from the divisional office

Jammu on 29.10.91 and on the next day he lodged report with

the police. That a person depositing money with the bank has to

deposit it with the cashier against a receipt and the cashier

thereafter sends the vouchers to his officer. That the depositor

gets a pass book as well as the statement of the account. That

he does not remember when the statement of Account was

given to the Shrine Board. That he is not aware about any rule

regarding the making of entries in the pass book. That the

Shrine Board does not withdraw the money from this Account,

but they withdraw it after transferring it to another account. That

from 15.11.89 to 27.06.91, the statement of account was given

to the Shrine Board every month but they did not make any

complaint with regard to miss-appropriation of any amount

during this period and during this period the money used to be

transferred by them to another account. That it was a big

account, as such, no pass book was issued to the shrine board

instead statement of account was issued. That as per the

receipt, the cash in dispute had been deposited with the Bank.

The deposit of money can be checked from the scroll of the

cashier and Manager. However, in large banks, first the

numbering is given and then the amount is deposited with the

cashier. That counter-foils of the receipt is given by the cashier

to his officer. The accused had not given the voucher in respect

of the miss-appropriated amount to his officer nor had he made

any entry in the scroll in this regard. The numbering on the

receipts is given by the cashier.

PW-2 Chaju Ram (Peon of the Bank, witness to

seizure of Bank records) has stated that in the year 1991, he

was posted with J&K Bank Katra. That accused was posted as

cashier with the said Bank at that time. That Shrine board was

having its accounts with the said bank and the police seized the

records of the bank vide seizure memo EXPW-1/D as there was

11 CRR No. 46/2008

some misappropriation in the said account. The witness

identified the ledger and the cash scroll book seized by the

police. The seizure memo EXPW-1/F bears his signatures. The

seizure memo EXPW-1/G also bears his signatures. That the

letters on record are the same as were seized by the police.

That at the relevant time, PW Adarsh Gupta was the Manager

of the Bank. In his cross-examination, he stated that he has

no personal knowledge about the misappropriation. That he

does not know about the contents of the seized letter. Perhaps,

the letters were seized on 26.11.91. That he is employee as a

Peon with the bank. That he does not remember the number of

registers seized by police. That the seizure was made by SHO

PS Katra.

PW-3 Manohar Lal Sharma (Chief Accounts Officer,

Mata Vaishno Devi Ji Shrine Board, witness to seizure

memo and application) has stated that he is working as Chief

Accounts Officer with Mata Vaishno Devi Ji shrine board for the

last 2 years. That in May/June, 1991, Audit of the accounts of

Shrine Board was going on for the year, 1989-90. That during

reconciliation some amount deposited in A/C no. 1804 with J&K

Bank Katra could not be traced. That he obtained the receipts in

respect of the amounts and informed the Bank about it. The

amounts shown in the receipts issued in favour of Shrine Board

had not been credited to its account. That he wrote the First

letter to J&K Bank on 27.06.91. He does not remember,

whether any other letter was written by him to the Bank prior to

this. That letter EXPW-3/A bears his signatures. That letter

dated 24.10.91, Mark-D, also bears his signatures. That letter

dated 13.11.91, EXPW-3/B also bears his signatures and this

letter was sent by him to the Bank. That seizure memo in

respect of cash book EXPW-3/C also bears his signatures. That

seizure memo EXPW-3/D in respect of photocopies of relevant

pages of cash book also bears his signatures. That police also

seized the original records and then the original cash book was

kept on supurdnama of PW Bhuvinder Kumar vide supurdnama

EXPW-3/E. That police seized five receipts from him vide

seizure memo Expw-3/F. That the receipts on record on the

file bears his signatures at their back. That he wrote letter dated

13.11.91 and 24.10.91 to the Manager J&K Bank. In his cross

examination, he stated that he does not personally go to the

Bank to deposit the money. That audit was conducted on

27.06.91. That he has not seen the original cash book in court

nor does he know the whereabouts of the original letters. That

he does not know whether his predecessor had written any

letter to the Bank.

PW-5 Joginder Kumar Anand (Cashier Shrine Board

Katra, witness to seizure memo EXPW-3/F of five (5)

receipts from him) in his statement deposed that on 29.11.91,

he was posted as cashier with shrine board Katra. That the

board has its account with J&K Bank Katra. That Police seized

five receipts from him vide seizure memo Expw-3/F. That

original cash book was kept on the superdnama of PW

Bhuvinder Kumar vide memo EXPW 3/B. That he has seen the

12 CRR No. 46/2008

counterfoils three in number Exp-A. That these entered in the

cash book. That sale proceeds from Adhkawari for 5.10.90

were Rs. 11,337/- and the same were deposited with the J&K

Bank and the same is entered in the cash book. The sale

proceeds of 15.11.89 amount to Rs. 12658/- and the same are

reflected in the cash book. The sale proceeds from Bhojanalaya

for 14.07.90, amounting to Rs. 11,509=50 is also reflected in

the cash Book. All these three entries are correct as per the

cash book. That seizure memo EXPW-3/P in respect of photo-

copy of cash book bears his signatures. That seizure memo

EXPW-3/C also bears his signatures. That he has brought the

cash book to court. In his cross-examination, he stated that

he has only brought the relevant portions of the cash book. That

cash book is not in his writing. That the pages of the cash book

were taken out at the time of seizure. He is not aware about the

method of preparing the cash book. That the cash book does

not reflect the receipt numbers in respect of deposits made in

the bank. That he does not know as to who used to go to the

bank for depositing the money. The seizure memos were

prepared by the police in the office. That police took away the

receipts but kept the cash book on supurdnama.

PW 6 Netar Parkash Anand, (District Manager, J&K

Bank Udhampur, witness to confessional statement/note

EXPW-1/A made by accused) in his statement deposed that

the year, 1991, he was posted as District Manager of J&K Bank

at Udhampur. That accused was performing the duties of

cashier with JK Bank Katra, during the period. That on

24.10.91, Branch Manager Katra informed him that the accused

has miss-appropriate the money of shrine Board. That on the

same day, he along with Manager Personnel Shri Sheesh

Kumar Khajuria went to Katra to investigate the case. That

accused confessed his guilt. That receipts in respect of deposits

made by the Shrine Board Katra have been signed by the

accused, but the same are not reflected in the books of the

bank. That this shows that accused has miss-appropriated the

said amount and the accused confessed his guilt and gave it in

writing. That confession was made by accused voluntarily and

the case had not been registered by them. The confession was

written by the accused himself. The confession note EXPW-1/A

bears his signatures as witness. That thereafter, he instructed

the Manager PW Adarsh Gupta to get the case registered and

accordingly the case was registered. That when the cashier

issued a receipt, it is his duty to enter it in the cash scroll and

make the entries in the concerned column. That after receiving

the voucher from the cashier, the ledger clerk makes the entry

and the officer makes the authentication. That voucher has two

parts. One part remains with the Bank whereas, the other part

is issued to the depositor. That the deposits received by the

accused from the Shrine Board from time to time were not

entered by him in his scroll book. That the amounts deposited

by the shrine Board were miss-appropriated by the accused.

The total amount came to about Rs. 79241/-. In his cross-

examination, he stated that he made enquiries from accused in

13 CRR No. 46/2008

the Hall of the Bank, but his statement was not recorded. That

he did not check any scroll or register or receipt nor did he

record the statements of Manager or the clerk. That he reached

the Bank at about 5 P.M on 24.10.91. That time of Public

dealing is from 10 A.M to 2 P.M and the bank remains open up

to 5 P.M. That Katra branch of the bank was under his

jurisdiction including the accused and other employees of the

said Bank(branch). That when the accused was asked about

the matter, he confessed his guilt and executed the note of

confession. That he remained in the Bank for about 2 hours.

That he witnessed the note of confession at about 7.10 P.M.

That Shri Shesh Kumar Khajuria also signed the note of

confession as witness PW Adarsh Gupta also signed it. When

the accused made the confession, he instructed for registration

of the case. The confession was written by accused there only.

That police did record his statements that accused had told him

that on 16.11.89, out of the amount of Rs 12658/- deposited by

Shrine Board on 15.11.89, he had deposited an amount of Rs.

6660/- in the Sundry account of the Bank and regarding the rest

of the amount of Rs 6000/- the accused expressed, he might

have made excess payment to somebody inadvertently. That at

the time of making confession, the accused was not extended

any offer of pardon. However, the accused was asked to keep

in mind Mata Vaishno devi and thereafter, the accused made

the note of confession. That sometimes, the cashier can make

excess payment inadvertently. That misappropriation has taken

place since, 1989, but the Bank cannot take any action unless,

the Account holder makes any complaint. That he cannot tell as

to where the accused spent the misappropriated money for his

own use.

PW-7 Shesh Kumar Khajuria, (Manager, District Office

Udhampur, witness who recorded the confessional

statement of accused EXPW-1/A in his handwriting in

presence of PW-1 & 6, Adarsh Gupta and Netar Parkash

Anand) in his statement deposed that in October, 1991, he was

posted in District office Udhampur. That accused was posted as

cashier with the Bank at Katra. That he recorded the statement

of accused, which is in his hand writing. That statement

EXPW/1/A was recorded by him in presence of Adarsh Gupta

and N.P Anand. That the accused and the other witnesses

signed this note. That accused had misappropriated the

amounts, hence, PW Adarsh Gupta got a case registered

against the accused. In his cross-examination, he stated that

he has no personal knowledge whether the accused brought

the misappropriated money to his own use or not however, as

per the statement of the accused, he misappropriated the

money. That he alongwith District Manager Udhampur went to

Katra for enquiring into the case. That the Statement of the

accused does not bear any note to the effect that its contents

were read over and explained to the accused and he accepted

it as correct. That the accused was not warned that he was not

bound to make the confession. That he is not aware as to

whether the case was registered at the time when the accused

14 CRR No. 46/2008

made the confession or not. That the statement of accused

was recorded at 7.10. PM in the cabin of branch Manager

Katra, in presence of the Manager of the Katra branch. That

banking time was from 10 A.M to 5 PM. That EXPW1/A is in

his hand writing. That he did not study the bank record, but it

was already inspected by the Manager of the Bank. That he is

not aware as to whether any complaint had been received from

the Shrine Board by them or not. That he knows the accused

because he was working with the bank.

PW-8 Bushan Gupta (Naib Tehsildar, Katra, Witness

to the specimen writings of the petitioner/ accused) in his

statement deposed that in December, 1991, he was posted as

Naib Tehsildar Katra. That accused Bishan Dass was brought

before him by the investigating officer and the accused made

the specimen writings in his presence and he attested the same

in the capacity of a Magistrate. That annexure-A and B bear his

endorsement and the same are marked EXPW-8 and EXPW-

8/A. In his cross-examination, he stated that he does not

remember whether the request for attestation of specimen

writing of accused was made by Police orally or in writing.

However, there is no written request on record. That he did not

know the accused before and nor did he get the accused

identified. That he did not write the name, parentage and the

residence of the accused separately. However, it was written at

the time of attestation. That accused himself orally disclosed

that he was Bishan Dass, the cashier of the Bank. That he does

not remember, whether he recorded any statement of the

accused before getting his specimen writing. That he has

served for 23 years and he has dealt with many such cases.

That accused was not compelled to make the specimen writing,

he did it voluntarily. That he did not warn the accused that he is

not bound to make any specimen writing and that such writing

can be used against him. However, he told the accused about it

orally but there is no such nothing. That accused was

accompanied by Sh Baldev Singh, SHO, who was also the

investigating officer. That he does not know wherefrom the

accused was brought by the police. That he does not entertain

oral requests but acts on the basis of written application. That

writing EXPW8/A was written by the accused himself at his

instance and that it was not dictated to the accused by him.

That at that time, SHO Baldev Singh was present in the court

room. That accused was in hand-cuffs at that time. That

accused was hand-cuffed on his left hand and he was carried

by the constables. That accused made the writing with a ball

pen with his right hand. Thereafter, the accused was again

taken by the police.

PW-10 Baldev Singh [Investigating officer (I/O)] in his

statement deposed that in the month of November, 1991, he

was posted in police station Katra. That after registration of FIR

No. 192/91 for offenses U/S 409/420/RPC against the accused,

he conducted the investigation of the case. That letter dated

30.10.91 along with six enclosures was written to him by PW

Adarsh Gupta, Manager of the Bank and he sent it back to the

15 CRR No. 46/2008

Manager asking him to send after reconciliation of the account

up to date. That on 18.11.91, the Manager, brought to him the

FIR alongwith 7 enclosures and he registered the FIR EXPW/B

on the basis of this. That during investigation of the case, he

prepared the site map EXPW/O. That he seized the register

and cash of the Shrine Board in their office from PW Pavinder

vide seized memo EXPW 3/C in presence of the witnesses.

That photo copies of cash book of Shrine Board were seized by

him vide memo EXPW 3/D. That cash book seized vide memo

EXPW 3/C was kept on supurdnama of PW Pavinder vide

memo EXPW-3/E. That register in respect of Saving Bank and

cash scroll of J & K Bank Katra as produced by PW Adarsh

Gupta was seized by him vide memo EXPW/D. That Photostat

copies of Saving Account ledger sheets and scroll book were

seized vide seizure memo EXPW 1/E. That ledger No 17 from

28.04.88 to 30.09.90. Ledger No 17 from 1-10-90 to date and

the scroll book were kept on supurdnama of PW Adarsh Gupta

vide meme EXPW 1/E. That the letters written by Shri M. L.

Sharma Chief Accounts officer, Shrine Board, the letters dated

13.8.91, 27.9.91 and 24.10.91, whereby the accused made the

confession. Transfer order Tok/167-68 dated 8-11- voucher

No.1, whereby Rs. 6660/- were deposited with/sundry

Account of the Ban, were seized vide memos EXPW 3/F. That

photocopy of Scroll dated 15.11.91 (EXPW-10/i), photocopy of

Scroll dated 14.10.90, (EXPW-10/2) and photocopy of Scroll

dated 1-10-90(EXPW 10/3) are correct as per original record.

That photo copy of Saving Bank Account No. 1804 of Mata

Vaishno Devi Ji Shrine Board dated 15.11.89, July 90 and Oct.

1990 (EXPW-10/4) and EXPW 10/5, EXPW 10/6) are correct as

per original record. That since accused had committed offences

of similar nature within a period of more than one year,

therefore, out of FIR 192/91, another FIR 72/92 was registered.

That investigation of the said FIR was also conducted by him.

That photo copies of the documents seized, seizure memo

were enclosed with the said file, which was found correct as per

the original record. These are EXPW 10/7. EXPW 10/8, and

EXPW 10/9. That extracts of saving Bank A/C No. 1804, of

Shrine Board for April 1991, EXPW 1/0, 1/P, 1/Q, 1/R, 1/S are

correct as per original record. That photo copies of letters dated

2-4-91, 11,4,91, original specimen writing on record on file of

FIR No. 192/91 and photo-copy of letter written to FSL Direct &

Udhampur are correct as per record. That the FIR NO. 72/92

EXPW 10/10 is in his hand writing. That after investigation of

the case, offences u/s 409/420/RPC were found proved against

the accused and thereafter both the challans were filed against

the accused. In cross-examination, he stated that FIR NO.

192/91 was registered on 18-11-91 whereas offence was

committed on 15-11-1989. That delay was due to the reason

that Shrine board reconciled its account no 1804 on 27-6-91

and found that the amount deposited by them vide receipt No.

31 dated 15-11-91 had not been credited to their account.

Thereafter, the Bank after enquiry, found that the receipt had

been issued by the accused who was on deputation as cashier

16 CRR No. 46/2008

with the Bank. That it took time for the Bank and the Shrine

Board to verify the facts, as such the case was registered on

18-11-91. That after the verification, it was further found that

amounts deposited vide receipts nos. 71 dated 2-4-91, 16 dated

14-7-90, dated 15-11-89, 30 dated 11-4-91 and 63 dated

1.10.90 had not been credited to Account No 1804. That in FIR

No 192/91 total misappropriation made on 15-11-89, 14.7.90

and 1-10-90, amounted to Rs. 35504.50. That during

investigation, it was also found that accused during the enquiry

by the Bank had admitted that on 15-11-89,an excess amount

of Rs. 6660/- was found, which was deposited in sundry

account of the Bank and the balance amount of Rs. 600/- was

not credited to any account. Thus accused admitted his guilt.

That accused was on deputation with the J&K Bank since 1988

and at the time of the case, was posted there. That accused

had offered to repay the amount in installments in presence of

the officers of the Bank on 27.09.1991.

10. The 1

st

argument urged by Ld. Counsel for

petitioner/convict is, that the confessional note/statement in the

form of extra judicial confession has been extracted from

petitioner under inducement, threat and promise by his superior

officers (persons) in authority i.e. the Managers of the J&K

Bank namely, PW-6 Nater Parkash Anand, PW-7 Sheesh

Kumar Khajuria & PW-1 Adarsh Kumar, the said extra judicial

confession is hit by section 24 of the Evidence Act and is

inadmissible in evidence.

It is pertinent to mention here, that in FIR No. 192/91

petitioner/convict has been charged for commission of offence

of criminal breach of trust u/s 409 RPC for the allegations that

on 15.11.1989, 14.07.1990 and 01.10.1990 he while being

posted as cashier in J&K Bank Katra committed the criminal

breach of trust (embezzlement) of the amount of ₹12658/-,

₹11509/- and ₹11337/- respectively which was deposited by

Shrine Board Katra. In another FIR No. 72/91 petitioner/convict

has been charged for commission of offence u/s 409 RPC for

the allegations that on 02.04.91 & 11.04.91 he while being

posted as cashier in J&K Bank Katra committed criminal breach

of trust of money in the sum of ₹ 27136/- & ₹16601/- deposited

by Shrine Board Katra.

The confessional note/statement in the form of extra-

judicial confession is alleged to have been made by

petitioner/convict on 24.10.91 vide exhibit EXPW1/A in

presence of witnesses namely, PW-6 Nater Parkash Anand

(District Manager J&K Bank Udhampur), PW-1 Adarsh Gupta

17 CRR No. 46/2008

(Manager J&K Bank Katra) & PW-7 Sheesh Kumar Khajuria

(District Manager J&K Bank Udhampur). For the sake of clarity

the said extra judicial confession/note/statement reads as

under:-

“I Bishan Dass S/O Sh. Janki Parshad Govt. Cashier deputed

to J&K Bank B/O Katra in the office of B/O Katra on 24.10.91

at 5.45 pm in the presence of District Manager J&K Bank

Udhampur Sh. N.P. Anand, Sh. Adarsh Gupta Manager B/O

Katra and Sh. Sheesh K. Khajuria Manager JK Bank District

Office Udhampur submit my statement regarding

misappropriation of five (5) cash receipts (1) No.31 dt.

15.11.89 for Rs. 12658=00 (Rs. Twelve thousand six hundred

fifty eight only), (2) Receipt No. 16 dt.14.07.90 for Rs.

11509=50 (eleven thousand five hundred nine and paisa 50

only), (3) No.63 dt. 01.10.90 for Rs. 11337=00 (Rs. Elven

thousand three hundred thirty seven only), (4) No. 71 dt.

02.04.91 for Rs. 27136=00 (Rs. Twenty seven thousand one

hundred thirty six only), (5) No.31 dt. 11.04.91 for Rs.

16601=00 (Rs. Sixteen thousand six hundred one only) for

creditable to Shri Mata Vaishnavi Devi Shrine Board (All) S/B

account No. 1804 as under:-

(1) Rs. 6660=00 (Rs. Six thousand six hundred sixty on) was

found excess on counter on 15.11.89 which was deposited

in the sundry account on the next date i.e. 16.11.89, Rs.

6000=00 (Rs. Six thousand) may have been paid in excess

to any party which was not traced.

(2) Regarding receipts No. 2 to 5 have been issued under my

signatures the amount has been utilized by me for my

personal use.

(3) I will be responsible if any more receipts are traced under

my signatures.”

24.10.91 7.10pm

Bishan Dass Cashier

Under deputation to J&K

Bank Katra

Witnesses:-

1. N.P Anand District Manager J&K Bank Udhampur.

2. Adarsh Gupta Manager J&K Bank Katra.

3. S.K. Khajuria Manager District office JK Bank Udhampur.

Section 24 of Indian Evidence Act 1872 deals with the provision

of confession caused by inducement, threat or promise. For the

sake of brevity Section 24 is reproduced as under:-

24. Confession caused by inducement, threat or promise,

when irrelevant in criminal proceeding.—A confession made

by an accused person is irrelevant in a criminal proceeding, if

the making of the confession appears to the Court to have been

caused by any inducement, threat or promise,1 having

reference to the charge against the accused person, proceeding

from a person in authority and sufficient, in the opinion of the

18 CRR No. 46/2008

Court, to give the accused person grounds, which would appear

to him reasonable, for supposing that by making it he would

gain any advantage or avoid any evil of a temporal nature in

reference to the proceedings against him.—A confession made

by an accused person is irrelevant in a criminal proceeding, if

the making of the confession appears to the Court to have been

caused by any inducement, threat or promise,2 having

reference to the charge against the accused person, proceeding

from a person in authority and sufficient, in the opinion of the

Court, to give the accused person grounds, which would appear

to him reasonable, for supposing that by making it he would

gain any advantage or avoid any evil of a temporal nature in

reference to the proceedings against him."

The expression “confession” has not been defined in the

Evidence Act. Stephen in his Digest of the Law of Evidence, Art.

21, defines it thus: “A confession is an admission made at

any time by a person charged with crime stating or

suggesting the inference that he committed the crime”.

Confessions may be divided into judicial and Extra-judicial.

Judicial confessions are those which are made before the

Magistrate or in the court in the due course of legal proceedings

and it is essential that they may be made of the free will of the

party and with full knowledge of the nature and consequences

of the confession. Section 164 of Cr.PC deals with the mode of

recording confessional statements of accused made during

investigation or at any time afterwards, but before the

commencement of the preliminary enquiry on trial. Extra-judicial

confessions are these which are made by party elsewhere than

before a Magistrate or in court, this term embracing not only

express confessions of crime, but all those admissions and acts

of the accused from which guilt may be implied. All voluntary

confessions of this kind are receivable in evidence on being

proved like other facts. The evidence of extra-judicial

confession in the very nature of things is a weak piece of

evidence. Extra-judicial confessions should be proved in the

same way as other admissions or statements by the evidence

19 CRR No. 46/2008

of the persons to whom they are made or who heard them

made or by the documents (if any) in which they are recorded.

Like judicial confessions made before a Magistrate, an extra-

judicial confessions may also be obtained by coercion, promise

of favour or false hope. An extra-judicial confession may

properly be made to any person, or collection or body of

persons. Section 164 of Cr.PC deals with recording of

confessions and statements. For the sake of clarity Section 164

Cr.PC is reproduced as under:-

S. 164. Recording of confessions and statements. (1) Any

Metropolitan Magistrate or Judicial Magistrate may, whether or not

he has jurisdiction in the case, record any confession or

statement made to him in the course of an investigation under

this Chapter or under any other law for the time being in force,

or at any time afterwards before the commencement of the

inquiry or trial:

Provided that no confession shall be recorded by a police

officer on whom any power of a Magistrate has been conferred

under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession,

explain to the person making it that he is not bound to make a

confession and that, if he does so, it may be used as evidence

against him; and the Magistrate shall not record any such

confession unless, upon questioning the person making it, he has

reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person

appearing before the Magistrate states that he is not willing to make

the confession, the Magistrate shall not authorise the detention of

such person in police custody.

(4) Any such confession shall be recorded in the manner provided

in section 281 for recording the examination of an accused person

and shall be signed by the person making the confession; and the

Magistrate shall make a memorandum at the foot of such record to

the following effect:-"

“I have explained to (name) that he is not bound to

make a confession and that, if he does so, any

confession he may make may be used as evidence

20 CRR No. 46/2008

against him and I believe that this confession was

voluntarily made. It was taken in my presence and

hearing, and was read over to the person making it and

admitted by him to be correct, and it contains a full and

true account of the statement made by him.

(Signed) A. B. Magistrate".

(5) Any statement (other than a confession) made under sub-

section (1) shall be recorded in such manner hereinafter provided

for the recording of evidence as is, in the opinion of the Magistrate,

best fitted to the circumstances of the case; and the Magistrate

shall have power to administer oath to the person whose statement

is so recorded.

(6) The Magistrate recording a confession or statement under this

section shall forward it to the Magistrate by whom the case is to be

inquired into or tried.

Threadbare reading of Section164 Cr.PC make it manifestly

clear, that the confessional statement if any has to be recorded

during the course of investigation, and the expression „in the

course of investigation‟ will not include the period prior to the

commencement of investigation and this section will not

consequently govern a statement or confession recorded prior

to the commencement of the police investigation. Sub- section 2

of Section 164 Cr.pc requires four things to be done—(1) it

enjoys on the Magistrate the duty to explain to the persons

making the confession that he is not bound to make confession;

(2) if he makes a confession, it may be used as evidence

against him; (3) the Magistrate must be satisfied and should

believe that the confession was voluntarily made; and (4) the

Magistrate shall make a memorandum at the foot of the record

indicating therein, that he has explained to the accused that he

is not bound to make a confession and that if he does so any

confession he may make may be used as evidence against him

and he was believes that this confession was voluntarily made,

it was taken in his presence and hearing, and read over to the

person making it and admitted by him to be correct and it

21 CRR No. 46/2008

contains full and true account of the statement made by the said

person.

An extra-judicial confession made to one who is not

person in authority and which is free from any suspicion as to its

voluntarily character has a ring of truth in it and is admissible in

evidence. Extra-judicial confession are required to be proved in

the same manner as other admission or statements. Perusal of

confessional note/statement EXPW1/A in the form of extra-

judicial confession as relied by the prosecution in the case in

hand, appears to have been made by petitioner/convict and

recorded on 24.10.1991 which is much prior to the registration

of FIR in the case in hand on 18.11.1991. Therefore, the said

confessional statement is not recorded in the course of

investigation of the case, as at the time of it‟s recording on

24.10.1991 no FIR was registered against petitioner/convict,

and therefore, section 164 Cr.PC would not govern such

statement or confession recorded prior to commencement of

police investigation which is hit by section 164 Cr.PC. Generally

speaking, a “person in authority” within the meaning of Section

24 of the Indian Evidence Act 1872 is one who is engaged in

the apprehension, detention or prosecution of the accused or

one who is empowered to examine him. In the case in hand,

petitioner/convict at the relevant time of occurrence was cashier

in J&K Bank Branch Katra, his confessional statement/extra-

judicial confession is alleged to have been recorded on

24.10.1991 at 7.10pm in presence of 3 witnesses who are his

superior officers of the bank namely, PW-6 Nater Parkash

Anand (District Manager J&K Bank Udhampur), PW-1 Adarsh

Gupta (Manager J&K Bank Katra) & PW- 7 Sheesh Kumar

Khajuria (District Manager J&K Bank Udhampur). The contents

of confessional statement/note EXPW1/A depict, that before

recording such statement, petitioner/convict has not been asked

that he is not bound to make such confession and if he makes

the confession that may be used as evidence against him, and

there is even no note/memorandum at the foot of confessional

statement EXPW1/A that the confessional statement has been

22 CRR No. 46/2008

read over and explained to the petitioner/convict who voluntarily

has admitted it as true and correct. In absence of the aforesaid

safeguards available to petitioner/convict, and not making

mention of them in his confessional note EXPW1/A, the said

confessional statement lacks it‟s voluntarily nature and appears

to have been made by petitioner/convict before his aforesaid

superior officers of the bank under inducement, threat or

promise, and thereafter, the said confessional note/statement

EXPW1/A relied by the prosecution in the form of extra-judicial

confession is hit by section 24 of the Evidence Act and

inadmissible in evidence.

Furthermore, PW-6 Nater Parkash Anand (District

Manager J&K Bank Udhampur) in his deposition before the trial

court has categorically putforth evidence, that accused

confessed his guilt and accused himself wrote the confessional

statement EXPW1/A voluntarily, upon which he, PW-1 Adarsh

Gupta (Manager J&K Bank Katra) & PW- 7 Sheesh Kumar

Khajuria (District Manager J&K Bank Udhampur) appended

their signatures. PW-7 Sheesh Kumar Khajuria (Manager

District Office Udhampur) has grossly contradicted the

testimony of PW-6 Nater Parkash Anand by deposing, that he

himself recorded the statement of accused EXPW1/A in his

handwriting. As PW-6 &7 have putforth highly contradictory

versions in regard to the writing of confessional statement of

petitioner/convict, it is uncertain and shrouded with mystery as

who wrote the confessional note/extra-judicial confession of the

petitioner/convict. Therefore, by no stretch of any imagination,

the confessional statement/extra-judicial confession EXPW1/A

alleged to have been made by petitioner/convict is admissible in

evidence.

In 1961 CriLJ 258 [Mst. Viran Wali vs State] relied by

Ld. Counsel for petitioner/convict, Hon‟ble J&K High Court while

acquitting appellant u/s 302 RPC sentenced to life

imprisonment for murder of her child and appreciating the

provision of law in regard to extra-judicial confession made by

said appellant/convict nurse before her superior officer Dr.

23 CRR No. 46/2008

Prabha Sharma, in paras 10,11,13 of the judgment held as

under:-

10. In the present case, as already indicated, there being

no material to show that at the time when the appellant

was examined by Dr. Sharma there was any accusation

against her, the first essential condition for the application

of this Article is not fulfilled. We are, therefore, of the opinion

that Article 20 cannot be successfully invoked in this case.

The contention of Mr. Sharma, on this point, is therefore,

overruled.

11. I shall now deal with the confession made by the

appellant to Dr. Sharma and other witnesses. In this

connection Mr. Sharma has placed before us the entire

evidence and has submitted that as the prosecution

evidence clearly shows that the confession was made under

threat and inducement it is inadmissible under the

provisions of Section 24 of the Evidence Act. It appears

from the evidence of Dr. Sharma that at the time when

the confession was made to her, Staff Nurse Isher Devi,

Krishena Sharma Nurse, and Kuldeep Nurse were

present. P.W. Krishena Sharma says at page 5 that the

appellant was questioned for about half an hour and

thereafter she made the confession. She further states

towards the close of her statement that before the

confession the Lady Doctor told her (the appellant) that she

should tell the truth and that nothing will happen to her

service if she tells the truth. The? exact words used by the

witness in her evidence are as follows:

13. The Advocate General on the other hand submitted two

serious arguments to rule out the application of Section

24 of the Evidence Act. In the first place he contended that

Dr. Sharma to whom the confession was made was not a

person in authority as envisaged by Section 24 of the

Evidence Act. In support of his contention he relied mainly

on a Full Bench decision of the Patna High Court reported in

AIR 1933 Pat 149, Santokhi Beldar v. Emperor where their

Lordships of the Full Bench have made the following

observations:

There is no statutory definition of the words "person in

authority" but it is well established that the words have

reference to a person who has authority to interfere in the

matter under inquiry.... The reported cases on the point

show that, generally speaking, a "person in authority

within the meaning of Section 24 is the one who is

engaged in the apprehension, detention or prosecution

of the accused or the one who is empowered to

examine him. In my opinion, the question as to whether a

person to whom a confession has been made is a person in

authority would naturally depend on the circumstances of

each case having regard to the status of the accused in

relation to the person before whom the confession is made.

The words "person in authority must be liberally construed

because the legislature seems to have broadened the ambit

of the section. Contrasting Section 24 with Section 25, it

appears that whereas Section 25 deals with confession to a

24 CRR No. 46/2008

police officer, Section 24 deals with confession made to

police officers or other persons of influence.

The question as to who is person in authority does not seem

to be free from difficulty. There is no doubt the view of the

Patna High Court that a person in authority is one who is in

charge of prosecuting, conducting, or defending cases.

There is on the other hand a number of authorities which

seem to have taken a more liberal view of the matter. In

Bhagabaticharan v. Emperor AIR 1933 Cal 644, which is a

Full Bench decision, it has been laid down, that even a

superior officer of an accused is a person in authority. To

the same effect is a later decision of the same court

reported as GungaProsad v. Emperor AIR 1945 Cal 360. To

the same effect is also the decision reported in AIR 1917

Sind 65, Loung Rashid v. Emperor. In Emperor v. Attursing

AIR 1932 Sind 64, manager of the office where the accused

was employed was held to be person in authority. Similar

seems to be the view of the Lahore High Court in the case

reported as Mahomed v. Emperor. AIR 1936 Lah 264. In

E.D. Smith v. Emperor AIR 1918 Mad 111 it was held that

the words "person in authority" are wider in the meaning

than the actual prosecutor. I, therefore, propose to construe

the words "person in authority in the light of the decisions

mentioned above.

Ratio of the judgment (Supra) makes the legal proposition

abundantly clear, that if a confession is made under threat or

inducement to a person in authority such confession is hit by

section 24 of Evidence Act and is inadmissible in evidence. In

the case law (Supra)appellant/convict a nurse on duty in male

eye ward in S.M.G.S. Hospital Jammu accused for murder of

her child made confession before Dr. Prabha Sharma who was

person in authority within the meaning of Section 24 Evidence

Act, and the said extra-judicial confession was held

inadmissible as made under inducement.

In CRIMINAL APPEAL NOS.333-334 of 2017

[SHALINDRA RAJDEV PASVAN AND OTHERS —

APPELLANT(S) VERSUS STATE OF GUJARAT ETC. —

RESPONDENT(S)] Hon‟ble Supreme Court while acquitting

appellants/convict for commission of offences punishable u/ss

302,363,364,364-A, 365, 120-B IPC r/w 21(1)(a) of Arms Act

and Section 3&5 of Indian Explosive Act, and while appreciating

aspect of the provision of law in regard to evidentiary value of

extra- judicial confession in para 19 of the judgment observed

as under:-

25 CRR No. 46/2008

19. In Sahadevan v. State of T.N. 5 referring to the

aspect of evidentiary value of extra-judicial confession, it

was observed:

“14. It is a settled principle of criminal jurisprudence

that extra-judicial confession is a weak piece of

evidence. Wherever the court, upon due

appreciation of the entire prosecution evidence,

intends to base a conviction on an extra-judicial

confession, it must ensure that the same inspires

confidence and is corroborated by other

prosecution evidence. If, however, the extra-judicial

confession suffers from material discrepancies or

inherent improbabilities and does not appear to be

cogent as per the prosecution version, it may be

difficult for the court to base a conviction on such a

confession. In such circumstances, the court would

be fully justified in ruling such evidence out of

consideration.”

Elaborating on the jurisprudence that has evolved with

regard to extra-judicial confessions, this Court in

Sahadevan (supra) had stipulated the principles that are

required to be kept in mind while relying on extra-judicial

confession as evidence. These principles have been

succinctly mentioned in Jagroop Singh v. State of

Punjab6 as:

“30. Recently, in Sahadevan v. State of T.N., after

referring to the rulings in Sk. Yusuf v. State of W.B.

and Pancho v.State of Haryana, a two-Judge

Bench has laid down that the extra-judicial

confession is a weak evidence by itself and it has

to be State of Haryana, a two-Judge Bench has

(2012) 6 SCC 403 (2012) 11 SCC 768 laid down

that the extra-judicial confession is a weak

evidence by itself and it has to be examined by the

court with greater care and caution; that it should

be made voluntarily and should be truthful; that it

should inspire confidence; that an extra-judicial

confession attains greater credibility and

evidentiary value if it is supported by a chain of

cogent circumstances and is further corroborated

by other prosecution evidence; that for an extra-

judicial confession to be the basis of conviction, it

should not suffer from any material discrepancies

and inherent improbabilities; and that such

statement essentially has to be proved like any

other fact and in accordance with law."

Ratio of the judgment (Supra) further makes it manifestly clear,

that extrajudicial confession is weak piece of evidence and

court must ensure that the same inspires confidence and is not

contradicted by the other prosecution evidence, however, if

extra-judicial confession suffers from material discrepancies or

inherent improbabilities, it may be difficult for the court to base

conviction on such confession. Ratios of the judgments (Supra)

26 CRR No. 46/2008

squarely apply to the facts of the case in hand. It is apt to

reiterate here, that the extra-judicial confession/note EXPW1/A

dated 20.10.1991 relied by the prosecution is shrouded with

mystery as who wrote the said confessional note/statement.

There is not an iota of utterance/noting/memorandum that the

said confessional statement/note/extra-judicial confession has

been made by petitioner/convict voluntarily. Further there is no

material evidence on record to show that at the time when

petitioner/convict made the said extra-judicial confession there

was any accusation against him. As per the evidence of PW-7

Shesh Kumar Khajuria (Manager District Office Udhampur) the

bank timing at the relevant time when the confessional

statement is alleged to have been made by the petitioner was

from 10am to 5pm, however, the confessional statement of the

petitioner EXPW1/A was recorded at 7.10 pm in the cabin of

Branch Manager Katra, which clearly demonstrates/establishes

that after office hours the said confessional statement is

extracted by the bank officials being superior in authority to the

petitioner under inducement and the same is not voluntary and

inadmissible u/s 24 of Evidence Act, as such no reliance can be

placed on the genuineness/creditworthiness of said

confessional note/statement EXPW1/A.

11. The 2

nd

argument portrayed by Ld. Counsel for

petitioner/convict is, that the occurrence has taken place on

15.11.1989 wherein on reconciliation of account No. 1804 of

Shrine Board Katra it was found that an amount of Rs. 12658/-

deposited by Shrine Board Katra vide receipt No. 31 dated

15.11.1989 has not been credited in the aforesaid account of

Shrine Board and therefore, after enquiry against

petitioner/convict, on 18.11.1991 after more than 2 years FIR

has been lodged against petitioner, the inordinate delay in

lodging FIR has remained un -explained resulting in

embellishment and introduction of coloured version making the

prosecution story unbelievable, concocted and unworthy of

reliance.

The issue whether prosecution case is liable to be

thrown out on the ground of inordinate delay in lodging FIR is

no longer res-integra and stands settled by catena of the

decisions of Apex Court. The Apex Court in the case of Apren

Joseph alias Current Kunjukunju and others Vs. State of

27 CRR No. 46/2008

Kerala reported in AIR 1973 Supreme Court 1, has observed

as hereunder:-

"Delay in lodging the first information report quite

often results in embellishment which is a

creature of afterthought. On account of delay,

the report not only gets bereft of the advantage

of spontaneity, danger creeps in of the

introduction of coloured version exaggerated

account or concocted story as a result of

deliberation and consultation. It is, therefore,

essential that the delay in lodging of the first

information report should be satisfactorily

explained."

Similarly relevant extract of the judgment delivered by Hon'ble

Apex Court in the case of Ravinder Kumar and another Vs.

State of Punjab reported in AIR 2001 SC 3576, is reproduced

herein below:-

"The attack on prosecution cases on the ground

of delay in lodging FIR has almost bogged down

as a stereotyped redundancy in criminal cases. It

is a recurring feature in most of the criminal cases

that there would be some delay in furnishing the

first information to the police. It has to be

remembered that law has not fixed any time for

lodging the FIR. Hence a delayed FIR is not

illegal. Of course a prompt and immediate lodging

of the FIR is the ideal as that would give the

prosecution a twin advantage. First is that it

affords commencement of the investigation

without any time lapse. Second is that it expels

the opportunity for any possible concoction of a

false version. Barring these two plus points for a

promptly lodged FIR the demerits of the delayed

FIR cannot operate as fatal to any prosecution

case. It cannot be overlooked that even a

promptly lodged FIR is not an unreserved

guarantee for the genuineness of the version

incorporated therein. When there is criticism on

the ground that FIR in a case was delayed the

court has to look at the reason why there was

such a delay. There can be a variety of genuine

causes for FIR lodgement to get delayed. Rural

people might be ignorant of the need for informing

the police of a crime without any lapse of time.

This kind of unconversantness is not too

uncommon among urban people also. They might

not immediately think of going to the police

station. Another possibility is due to lack of

adequate transport facilities for the informers to

reach the police station. The third, which is a quite

28 CRR No. 46/2008

common bearing, is that the kith and kin of the

deceased might take some appreciable time to

regain a certain level of tranquillity of mind or

sedativeness of temper for moving to the police

station for the purpose of furnishing the requisite

information. Yet another cause is, the persons

who are supposed to give such information

themselves could be so physically impaired that

the police had to reach them on getting some

nebulous information about the incident.

In Tara Singh vs. State of Punjab (1991 Suppl. (1) SCC 536)

Hon‟ble Supreme Court made the following observations:

"It is well settled that the delay in giving the FIR by

itself cannot be a ground to doubt the prosecution

case. Knowing the Indian conditions as they are

we cannot expect these villagers to rush to the

police station immediately after the occurrence.

Human nature as it is, the kith and kin who have

witnessed the occurrence cannot be expected to

act mechanically with all the promptitude in giving

the report to the police. At times being grief-

stricken because of the calamity it may not

immediately occur to them that they should give a

report. After all it is but natural in these

circumstances for them to take some time to go to

the police station for giving the report."

In State of Himachal Pradesh Vs. Gian Chand reported in

AIR 2001 (1) SC 2075 the Apex Court reiterated as hereunder:-

"Delay in lodging the FIR cannot be used as a

ritualistic formula for doubting the prosecution

case and discarding the same solely on the

ground of delay in lodging the first information

report. Delay has the effect of putting the Court in

its guard to search if any explanation has been

offered for the delay, and if offered, whether it is

satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is

possibility of embellishment in prosecution

version on account of such delay, the delay

would be fatal to the prosecution. However, if

the delay is explained to the satisfaction of the

court, the delay cannot by itself be a ground for

disbelieving and discarding the entire prosecution

case."

Ratios of the judgments (Supra) squarely apply to the facts of

the case in hand. It is apt to reiterate here, that the allegations

against petitioner/convict are, that on 27.06.1991 Chief

Accounts Officer of Shrine Board Katra through a written

communication informed J&K Bank Ltd. Brach Katra that the

29 CRR No. 46/2008

amount deposited by Shrine Board in the Katra Branch of

Jammu & Kashmir Bank in it‟s account No. 1804 on 15.11.1989

was not credited into their account and on further enquiry and

reconciliation of accounts it was found that amounts of Rs.

12650/-, Rs. 11509/-, Rs. 11337/-, Rs. 27136/- and Rs. 16601/-

deposited by the Shrine Board Katra were not credited into their

aforesaid account no. 1804, which led to registration of FIR

against petitioner on 18.11.1991. It is pertinent to mention here,

that the occurrence is of 15.11.1989 and after an inordinate

delay of 2 years (730 days) FIR has been registered against

petitioner/convict on 18.11.1991. PW-3 Manohar Lal Sharma

(Chief Accounts Officer Mata Vaishno Devi Ji Shrine Board

Katra) who wrote first letter to J&K Bank on 27.06.1991 for

registration of FIR, has putforth evidence before the trial court

that in May/June 1991 audit of accounts of Shrine Board was

going on for the year 1989- 90 and during such

audit/reconciliation some amount deposited in account No.

1804 of Shrine Board Katra with J&K Bank Katra could not be

traced, which clearly demonstrates that even if the offence of

misappropriation/embezzlement of money against

petitioner/convict was traced in the month of May/June 1991,

the FIR was registered against petitioner/convict on 18.11.1991

even after a delay of more than 5 months (150 days). PW-10

Baldev Singh (I/O) in his cross-examination has admitted that

the offence is alleged to have been committed by

petitioner/convict on 15.11.1989 and FIR no. 192/91 was

registered against him on 18.11.1991. I/O has tried to explain

the delay by deposing that the delay was due to the reason that

Shrine Board reconciled its account No. 1804 on 27.06.1991

and found that amount deposited by them vide receipt No.31

dated 15.11.1989 was not credited into their account. The

deposition of PW-10 Baldev Singh (I/O) clearly demonstrates

that there is delay of almost 2 years or at least 5 months in

lodging FIR against petitioner/convict and the same has

remained unexplained by the prosecution. In light of ratios of

the judgments (Supra) and critical appraisal of the evidence

30 CRR No. 46/2008

tendered by PW-3 & PW-10 aforesaid, inordinate and un-

explained delay aforesaid in lodging FIR against

petitioner/convict has quite often resulted in embellishment

which is creature of afterthought, whereby, the FIR not only gets

bereft of the advantage of spontaneity but danger creeps in of

introduction of coloured version, concocted story as a result of

consultation and deliberation which has demolished the very

edifice of the creditworthiness/reliability of the prosecution case.

12. The 3

rd

argument canvassed by Ld. Counsel for

petitioner/convict is, that the prosecution in the case in hand

has utterly failed to prove the essential ingredients of the

offence of section 409 RPC in regard to Criminal Breach of

Trust by misappropriating (embezzlement) of the money as the

essential ingredients of the said offence i.e. (i) the entrustment

of the money and (ii) dishonest misappropriation of the same or

converting it to its own use by petitioner/convict has not been

proved.

In 2005 (1) JKJ 245 [Janak Raj vs State] relied by Ld.

Counsel for petitioner/convict, while acquitting the

accused/convict a store keeper of Irrigation Division Dharmari

Mahore District Reasi for commission of offence Under Section

409 RPC for embezzlement of Rs. 6000/- as sale consideration

of 200 bags of cement received by him, Coordinate Bench of

this Court in paras 11, 12&13 of the judgment observed as

under:-

11. In order to complete the commission of offence and hold

the accused, Janak Raj, guilty of criminal breach of trust by

misappropriating (embezzlement) of the money, it was

incumbent upon the prosecution to prove criminal conspiracy

with accused Bishan Dass and dishonest misappropriation of

money by accused Janak Raj.

12. The case of the prosecution with regard to entrustment of

200 bags of cement is also admitted by the accused. The

only question required to be proved by sufficient and cogent

evidence is, was there a criminal conspiracy and

misappropriation of money by accused Janak Raj? There is

not an iota of evidence adduced by the prosecution to prove

that there was an agreement to do an illegal act between

Janak Raj accused and Bishan Dass, nor there is any

evidence, circumstantial or direct, to prove that the sale

proceeds of the cement sold in black-marketing were

received or shared by accused Janak Raj.

13. Another evidence reached upon by the prosecution is

recovery of Rs. 6,000/- from the personal search of the

accused, when arrested immediately after the occurrence.

31 CRR No. 46/2008

The accused had given explanation for having in his

possession Rs. 6,000/-, being the Government money, given

to him by Executive Engineer, J.L. Koul. This fact stood

affirmed from the certificate, issued by J.L. Koul, and proved

in his evidence, examined in his defence. This circumstance,

therefore, totally negatived the prosecution case with regard

to the criminal conspiracy between Janak Raj accused and

Bishan Dass in the sale of the cement, instead of taking it to

the place of its destination, and further misappropriation of

the money by Janak Raj, accused. At the most, it could be

said to be a negligence on the part of Janak Raj accused

for haying not carried out the terms of entrustment in

carrying the cement to the place of its destination and

having handed over the cement to Bishan Dass to do the

job, in violation of the terms of the entrustment, but

could not provide a sufficient inference from such

circumstance even with regard to the criminal

conspiracy or with regard to misappropriation of money

by any stretch of reasoning. An identical situation came up

for consideration before the Apex Court in case

entitled Kailash Kumar Sanwatia v. State of Bihar and

Anr., 2003 Crl. L. J. 4313, in which it was held as under:

"In the instant case even if it was proved as contended by

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 misappropriated 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 prosecution that money which

was given to the accused-Gautam Bose and the cash

peon to obtain bank drafts was taken away by accused

Gautam Bose or the cash peon Ganaori Sao. Because of

an intervening situation, the disappearance of the cash

due to theft by somebody else the bank drafts could not

have been prepared and handed over to the appellant.

Even if there is loss of money, the ingredients necessary to

constitute criminal breach of trust are absent. If due to a

fortuitous or intervening situation, a person to whom

money is entrusted is incapacitated from carrying out the

job, that will not bring in application of Section 405, IPC or

Section-409, IPC, unless misappropriation, or conversion

to personal use or disposal of property is established."

In 1998 CriLJ 3771 [The State Of Maharashtra vs Mohan

Radhkrishna Pednekar] relied by Ld. Counsel for

petitioner/convict, while acquitting accused/convict a Head

Cashier at Maharashtra State Co-operative Bank, Vile Parle

(West) Branch Bombay for commission of offence under section

409 RPC in regard to shortage of amount of Rs. 29200/-

Bombay High Court in paragraphs 6,7&8 of the judgment held

as under:-

32 CRR No. 46/2008

6. The facts of this case are more or less admitted by all

the persons concerned. There was a missing of cash of

Rs. 29,200/- from the counter. Prima facie, the cashier is

answerable for this loss. According to the respondent the

cash was missing but he has not misappropriated it. On

the facts and circumstances proved in this case the

respondent has not committed any offence of

misappropriating the amount. Merely because the

respondent was not able to produce the property which

was entrusted to him it cannot be said that the respondent

is liable for criminal breach of trust as defined

under section 408 I.P.C. Section 408 I.P.C. reads thus:

"408. Criminal breach of trust by clerk or servant---

Whoever, being a clerk or servant or employed as a clerk

or servant, and being in any manner entrusted in such

capacity with property, or with any dominion over property,

commits criminal breach of trust in respect of that property,

shall be punished with imprisonment of either description

for a term which may extend to seven years, and shall also

be liable to fine."

We are fully in agreement with the finding of the learned

Magistrate.

7. In order to establish an offence under section 408 I.P.C.

there must be a dishonest misappropriation of the property

entrusted. So long as the amount has not been

recovered from the person of the respondent or from

his house and there is no evidence that he has taken

the amount, though he was answerable for the amount

as cashier, it cannot be held that he has dishonestly

misappropriated that amount. In a bank transaction due

to the rush of the customers who come for transactions in

the counter, the amount might have been missed by

paying excess amount to the customers. Every such

incident of missing of the amount in the counter cannot be

said to be an act of criminal breach of trust, unless there

exists material to implicate the incumbent for criminal

offence.

Criminal breach of trust has been defined

under section 405 I.P.C., which reads thus:

"405. Criminal breach of trust.---Whoever, being in any

manner entrusted with property, or with any dominion over

property, dishonestly misappropriates or converts to his

own use that property, or dishonestly uses or disposes of

that property in violation of any direction of law prescribing

the mode in which such trust is to be discharged, or of any

legal contract, express or implied, which he has made

touching the discharge of such trust, or wilfully suffers any

other person so to do, commits "criminal breach of trust"."

To constitute an offence of criminal breach of trust as

rightly pointed out by the Court below there must be a

dishonest misappropriation. Mere misappropriation will not

amount to criminal breach of trust. It must be dishonest.

Dishonest misappropriation is again defined

under section 403 I.P.C., which reads as under:

"403. Dishonest misappropriation of property. ---

Whoever dishonestly misappropriates or converts to his

own use any moveable property, shall be punished with

33 CRR No. 46/2008

imprisonment of either description for a term which may

extend to two years, or with fine, or with both."

'Dishonestly' has been further defined under section 24 of

the Indian Penal Code, which reads as under:

"24. 'Dishonestly'.---Whoever does anything with the

intention of causing wrongful gain to one person or

wrongful loss to another person, is said to do that thing

"dishonestly".

"Whoever does anything with the intention of causing

wrongful gain or loss to any other is said to have

committed that thing dishonestly. Therefore in order to

constitute an offence under sections

403 and 408 I.P.C. there must be a wrongful gain to the

person who commits the offence or there must be

wrongful loss to another person. Thrust of the provision

is to the gain or loss. In these circumstances it is important

to note that so long as the money has not been recovered

either from the person or from the house of the respondent

it cannot be said that he had an intention of causing

wrongful gain by taking the said amount. No witness has

spoken that the amount was taken by the respondent.

Therefore, as rightly observed by the Court below no

offence of criminal breach of trust has been constituted in

the facts and circumstances of the case and the Court

below rightly acquitted the respondent. Sometimes the

respondent may be liable for negligence but not liable

for the offence, he was charged. In view of this we do

not find any ground to interfere with the impugned

judgment.

8. In the result the appeal filed by the State is liable to be

dismissed. We do so.

In Criminal Appeal No.337 of 2003 [M/S.Rahmania Coffee

Works vs Unknown] relied by Ld. Counsel for petitioner/convict,

while acquitting appellant/convict for the charges of

commission of offences under sections 120-B r/w 409/477 IPC

for misappropriation of amount of ₹ 8687108/-, Madras High

Court in paragraphs 15,19,23,26,27 of the judgment held as

under:-

15. The next point to be decided is whether the complaint

has been proved?

It is true that the FIR is not an encyclopaedia. The

complaint/FIR is not a substantial piece of evidence and the

same could be used only for corroboration and contradiction.

It is pertinent to note that the Complainant Ramaswamiah

who preferred the complaint on 18.05.1990 has retired from

service on 20.03.1989 and the case was registered by the

respondent only on 23.07.1990. In the said complaint, it was

stated that an internal audit party of Coffee Board had taken

up the audit of the accounts of M/s.Rahmania Coffee Works,

Mettupalayam during the month of October, 1989 and it was

found that the said company had misappropriated the

Board's money to the tune of Rs.83 lakhs and the said

misappropriation had taken place from 1980-81 onwards.

34 CRR No. 46/2008

Further, it was stated that after receipt of the show cause

notice the accused sought time till February, 1990 to refund

the amount. Though time was granted, the said amount was

not refunded and hence, they had preferred the complaint. At

this juncture, it is pertinent to note the following points:

(i) The complainant Ramaswamiah, Vigilance Officer of the

Coffee Board was not examined before the Court.

(ii) The basis on which the complaint was preferred is

only the audit report. Admittedly, the said audit report

was not filed before the Court.

(iii) The person who conducted the audit was not a qualified

person, but he is only the staff of the Coffee Board, which is

evident from the deposition of P.W.8/Vasudeva Rao Chavan.

19. The learned counsel for the appellant also mainly focused

on the point that the ingredients of Section 409 has not been

made out. The respondent needs to prove the

entrustment of the amount alleged to be

misappropriated. However, in the given case the

entrustment has not been proved by the prosecution. To

prove the same, the learned counsel also taken me through

the evidence of P.W.17/Lalitha, who was working as Head

Clerk in the Coffee Board, Bangalore. P.W.17 in her

deposition has stated that she has not issued any letter of

credit, but only signed the covering letter under which the

letter of credit has been issued. The procedure followed by

the Board to pay money to the Coffee growers is that the

collection agent and pool agent would procure coffee beans

from the Coffee growers and the cost of the same would be

sent to the agents by way of letter of credit in the account of

the pool agents and the collection agents. This appellant is

not only the collection agent but also the pool agent. After

collecting the coffee bean, the agents would cure the same,

stock it and thereafter, transport it to the Coffee Board. The

agents after deducting the expenses incurred by them for

curing, stocking and transporting would mention the balance

amount under Form 15 and 15A. So, there is no cash

transaction between the Coffee Board, the Pool agents

and Collection agents, but the transaction takes place

only through the letter of credit.

23. Thus, the evidence of P.W.5/Unnikrishnan and

P.W.6/Govindaraj, the Bank officials would clearly reveal that

the amount was not paid in cash by the Coffee Board to the

Collection agent and Pool agent, but it was only sent by way

of letter of credit. So, it is duty of the prosecution to prove

that a sum of Rs.83,87,108/- has been paid to the

accused.

26. Further, on perusal of the evidences of P.W.5

Unnikrishnan, P.W.6 Govindaraj, P.W.9 Chennakrishnan,

P.W.14 Subba Rao, P.W.17 Lalitha, P.W.18

Lakshminarayanan, P.W.19 Ramamoorthy and P.W.20

Shantaraj has not proved the entrustment of amount. Even

though Exs.P.31 to 33 were marked to prove the transfer of

money through letter of credit, the said exhibits were only the

covering letters. Admittedly, the letter of credits and the

LC Registers were not filed before the court to prove the

entrustment. The bank officials who were examined as

P.W.5 Unnikrishnan, P.W.6 Govindaraj and P.W.19

35 CRR No. 46/2008

Ramamoorthy has also not spoken about the letter of credit.

So, I am of the view that the prosecution has not proved the

entrustment of Rs.83,87,108/- .

27. The learned counsel for the appellant has raised the point

that once the entrustment of money has not been proved,

then the offence under Section 409 IPC fails. To substantiate

the same, he relied upon the decision reported in AIR 1983

Supreme Court 631, Roshan Lal Raina v. State of Jammu &

Kashmir, wherein it was held that without proof of

entrustment, there can be no question of the accused being

found guilty of the offence under Section 409 of the Code. At

this juncture, it would be appropriate to incorporate Section

409 IPC.

409. Criminal breach of trust by public servant, or by

banker, merchant or agent. Whoever, being in any

manner entrusted with property, or with any dominion over

property in his capacity of a public servant or in the way of

his business as a banker, merchant, factor, broker, attorney

or agent, commits criminal breach of trust in respect of that

property, shall be punished with [imprisonment for life], or

with imprisonment of either description for a term which may

extend to ten years, and shall also be liable to fine.

Ratios of the judgments of “Janak Raj”, “Mohan Radhkrishna

Pednekar” & “M/S.Rahmania Coffee Works” cases (Supra)

relied by Ld. Counsel for petitioner/convict make the legal

proposition manifestly clear, that to prove the offence of criminal

breach of trust u/s 409 IPC, the prosecution has to prove, 1stly

entrustment of the property to the accused, & 2ndly dishonest

misappropriation of the said property by the accused or

converting it to his own use, and so long as the amount

misappropriated/embezzled has not been recovered from the

person of accused or from his house and there is no evidence

that accused had taken the amount though he was answerable

for the amount as cashier, it cannot be held that accused has

dishonestly misappropriated that amount, as in Bank

transactions due to rush of customers who come for transaction

in the counter the amount might have been missed by paying

excess amount to the customer, every such incident of missing

the amount in the counter cannot be said to an act of criminal

breach of trust. Ratios of the judgments (Supra) squarely apply

to the facts of the case in hand. PW-1 Adarsh Gupta (Manager

J&K Bank Brach Katra) in his deposition before the trial court

has categorically led evidence, that in June 1991 Bank received

a letter from Shrine Board wherein it was complained that

36 CRR No. 46/2008

amount of Rs. 12658/- deposited by them on 15.11.1989 had

not been credited to their account No. 1804 with the said bank.

It is the further evidence of PW-1 that accused/convict

expressed that he had excess cash of Rs. 6660/- which was

deposited by the accused in sundry account of the bank. PW-2

Chhaju Ram (peon of the bank) has stated that he has no

personal knowledge about misappropriation of the money by

the accused. PW-3 Manhoar Lal Sharma (Chief Accounts

Officer Mata Vashno Devi Ji Shrine Board Katra) in his

deposition before the trial court has putforth evidence, that in

May/June 1991 audit of accounts of Shrine Board for the year

1989-90 was being conducted and during the said

audit/reconciliation some amount deposited in account No.

1804 with J&K Bank Katra could not be traced, therefore, he

wrote first letter to J&K Bank on 27.06.1991. PW-5 Joginder

Kumar Anand (Chashier Shrine Board Katra) has deposed that

police seized 5 receipts from him vide seizure memo EXPW-

3/F. Pw-6 Nater Parkash Anand (District Manager J&K Bank

Udhampur) in his testimony before the trial court has deposed

that confessional note/statement EXPW1/A was written by

accused himself and total amount of Rs. 79241/- was

misappropriated by the accused. It is surprising that the basis

on which FIR was registered against petitioner/convict is only

the audit /reconciliation report which has not been filed before

the trial court, and moreso, the person who prepared the

audit/reconciliation report for the year 1989-90 has not been

cited as prosecution witness in the charge sheet. On critical

appraisal of the evidence tendered by PWs-1,2, 3, 5 & 6

namely, Adarsh Gupta, Chhaju Ram, Manhoar Lal Sharma,

Joginder Kumar Anand & Nater Parkash Anand, by no stretch

of imagination it can be held that the alleged misappropriated

amount has been recovered from petitioner/convict, and there is

no cogent evidence muchless any evidence adduced by the

prosecution that petitioner/convict has taken the amount and

converted it to his own use. It is apt to reiterate here, that

though petitioner/convict at the relevant time of audit and

37 CRR No. 46/2008

registration of FIR was cashier in J&K Bank Branch Katra, it

cannot be held, that he has dishonestly misappropriated the

said amount reflected in the memorandum of charges framed

against him. It is apposite to mention here, that due to nature of

the work petitioner/convict use to perform, in a bank transaction

due to rush of customers who come for transactions in the

counter the amount as allegedly misappropriated might have

been missed by paying excess amount to the customer.

Therefore, every such incident of missing of amount in the

counter cannot be said to be an act of criminal breach of trust

as there exists no material/cogent evidence to substantiate the

fact that the amount has been dishonestly misappropriated by

petitioner/convict.

13. I, on the basis of the aforesaid evidence, hold that there is

no legal evidence on record to prove that appellant/convict is

the mastermind of misappropriation of alleged amount of money

attributed to him. The direct evidence/the circumstances as

relied upon by the prosecution are not strong enough indicating

the involvement of petitioner/convict in the commission of crime

and all the circumstances are not compatible with the possibility

of guilt of the accused. The witnesses examined by the

prosecution, have not been able to putforth in their evidence a

ring of truth, so as to inspire confidence in this court. Evidence

of prosecution witnesses, is therefore, qualitatively and

quantitatively, insufficient to bring nexus between

petitioner/convict and commission of the offences indicted

against him. This renders the entire story of prosecution as

incredible and unbelievable in the manner projected by the

prosecution. On proper assessment, evaluation and estimation

of the evidence adduced by the prosecution, the evidence

appears to be weak, fragile, lacking in credibility, does not prove

connecting link between the accused and commission of

offences. It would be highly dangerous and hazardous to hold

the petitioner/convict guilty of offences alleged against him on

the basis of weak, shaky and unacceptable evidence. The

38 CRR No. 46/2008

whole case of the prosecution, therefore, becomes doubtful. For

the foregoing reasons and discussion, I am of the considered

view, that prosecution has miserably failed to prove the guilt of

the petitioner/convict beyond reasonable doubt for commission

of offence u/s 409 RPC. The criminal revision, therefore,

deserves to be allowed and the same is allowed. Resultantly,

the impugned judgment and order of conviction dated

27.08.2020 rendered by the trial court of Ld. Sub-Judge

(Judicial Magistrate 1

st

Class) Katra and the judgment/order

dated 20.09.2008 rendered by the court of Ld. Sessions Judge

Reasi whereby petitioner/convict has been convicted for

commission of offence punishable u/s 409 RPC based on

surmises, assumptions and presumptions is unsustainable in

the eyes of law, and the same is set aside/quashed.

Petitioner/convict namely, Bishan Dass S/O Janki Parshad R/O

H. No. 40 Dogra Hall Jammu, is therefore, cleanly acquitted of

the charges leveled against him. He shall stand discharged

from his bail and personal bonds. Seized case property if any

shall be released in favour of concerned department/bank.

Criminal revision is disposed of. Record of the appellate/trial

courts be sent back forthwith alongwith copies of the judgment

for information of the courts below.

14. Disposed off accordingly alongwith connected CMPs if

any.

(MOHAN LAL)

JUDGE

JAMMU

19.07.2023

Vijay

Whether the order is speaking: Yes

Whether the order is reportable: Yes/No