http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3

CASE NO.:

Appeal (crl.) 904 of 1996

PETITIONER:

Kailash Kumar Sanwatia

RESPONDENT:

Vs.

The State of Bihar and Anr.

DATE OF JUDGMENT: 02/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

The appeal is at the instance of the informant who set law in

motion against respondent no.2-Gautam Bose along with two others for

alleged commission of offence punishable under Section 409 read with

Section 34 of the Indian Penal Code, 1860 (for short 'IPC').

Case of the prosecution was that on 23rd August, 1982 the

appellant went to the State Bank of India, Jharia Branch for taking two

banks drafts of Rs.75,000/- each. His servant Indradeo Ram was also

with him. The appellant had carried a sum Rs.1,50,200/- with him out

of which Rs.75,100/- was of Mahabir Bhandar of which appellant was

owner, while balance Rs.75,100/- was of Swastik Bhandar belonging to

brother of appellant. The total amount was handed over to accused-

Ganauri Sao for the purpose of counting at the instance of accused-

Gautam Bose â\200\223 the Head Cashier. The cash peon told him that he would

count the money, and return the bag in which the money was carried at

2.00 p.m. Informant-appellant handed over cash vouchers duly filled in

to Amit Kumar Banerji an officer of the bank and returned to his shop

on being told that the drafts will be handed over around 2.00 p.m.

Around 1.00 p.m. the peon of the bank named Jagdish came to his shop

and told him that the money handed over by him was missing from the

cash counter. On hearing this, both the informant and his brother

rushed to the bank. They were told that a complaint had already been

lodged by the Manager of the bank regarding missing of money. By the

time the appellant and his brother reached the bank, police had already

arrived. Ganaori admitted that he was counting the money handed over by

the informant. When he went outside for a short time, during that time

the money had been taken away by some one. The informant filed a

written report before the police officer (Ex.P-3) in the premises of

the bank and on the basis of this the case was instituted and

investigation undertaken.

On completion of investigation, charge sheet was placed and

charges were framed against Gautam Bose, Ganaori Sao, and Jagdish Ram

under Section 409 read with Section 34 IPC. Accused persons pleaded

innocence. They took the stand that the case was falsely instituted to

get money from the bank through the insurance company.

Ten witnesses were examined to substantiate the prosecution case.

The Trial Court placing reliance on their evidence found that only

respondent no.2-Gautam Bose and Ganaori Sao were guilty of offences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3

punishable under Section 409 IPC read with Section 34 IPC and were

sentenced to undergo imprisonment for two years each. The said accused

persons filed two appeals before the Additional Sessions Judge,

Dhanbad, who in Crl. Appeal no.145/1986 and Crl. Appeal no. 151/1986

held that accusations have not been brought home because there were

many infirmities in evidence and there was doubt as regards the manner

of entrustment for bringing in application of Section 409 IPC. The

matter was carried in revision before the Patna High Court by the

informant-appellant. By the impugned judgment, learned Single Judge

held that though the money appears to have been handed over, it has not

been established by credible and cogent evidence when the money were

really missing. It, however, recorded that fact of handing over of

Rs.1,50,200/-, and missing of money from the cash counter. But it is

not proved beyond reasonable doubt from the evidence on record that

actually the cash was entrusted to Ganaori Sao at the instance of Head

Cashier-Gautam Bose, though money was missing from bank premises and

from the cash counter. It was held that the possibility of theft of

the money cannot be ruled out. Since the informant had filed suit for

recovery of the amount from the bank he could pursue it. Due to paucity

of evidence on the point of entrustment, case under Section 409 was

held to be not made out. Against the said judgment of the High Court,

this appeal has been filed.

Learned counsel for the appellant stated that when it is admitted

that money was missing from the cash counter of the bank at the bank

premises, and information had been lodged by the Manager alleging theft

of the amount and commission of offence under Section 380 IPC, the

Trial Court, First Appellate Court and the High Court were not

justified in holding that there was paucity of material as regards the

manner of entrustment with reference to Section 409 IPC. It was

submitted that the language of the provisions made it clear that

whatever be the manner of entrustment, if the factum of entrustment is

established, nothing more is required to be further established.

In spite of notice, respondent no.2 has not entered appearance.

Learned counsel appearing for the State of Bihar submitted that the

stand adopted by the appellant is adopted by it.

Section 409 IPC deals with criminal breach of trust by public

servant, or by banker, merchant or agent. In order to bring in

application of said provision, entrustment has to be proved. In order

to sustain conviction under Section 409, two ingredients are to be

proved. They are:

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

entrusted with property of which he is duty bond to account

for; and

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

What amounts to criminal breach of trust is provided in Section

405 IPC. Section 409 is in essence criminal breach of trust by a

category of persons. The ingredients of the offence of criminal breach

of trust are: -

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

over property.

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

converting to his own use that property; or (b) dishonestly

using or disposing of that property or willfully suffering

any other person so as to do in violation â\200\223

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

trust is to be discharged; or

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

The basic requirement to bring home the accusations under Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3

405 are the requirements to prove con-jointly (1) entrustment and (2)

whether the accused was actuated by the dishonest intention or not

misappropriated it or converted it to his own use to the detriment of

the persons who entrusted it. As the question of intention is not a

matter of direct proof, certain broad tests are envisaged which would

generally afford useful guidance in deciding whether in a particular

case the accused had mens rea for the crime.

In 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. Unfortunately, the courts below have not

looked at the issues from these vitally relevant angles. The inevitable

conclusion is that accused persons cannot be convicted under Section

409 IPC. This, however, will not stand in the way of the appellant

getting such relief as available in law otherwise by pursuing a

suitable remedy.

The appeal is dismissed with the aforesaid observations.