452 SUPREME COURT REPORTS [1960(1))

x959 Malanga who was a Ohandala. Vishva Mitra was a.

v G'. Kshtriya and became a Brahman. Hinduism might

· : '" have become static at one stage but its modern history

Dippala ~"''Do,. shows that this is not so now and it would not be

•Kd Othm wrong to say that caste in Hinduism is not dependent

upon

birth but on actions. The whole theory of karma K•P..• J. is destructive of the claim of caste being dependent

upon birth..

I959

May ar.

In.my opinion Mr. Dippala Suri Dora had by his

actions raised himself

to the position of Kshtriya and

he was no longer a member of the

Scheduled Caste or

Tribe and on that ground also his election cannot be

supported.

I would therefore allow

this appeal, set aside the

order of the High

Court and restore that of the Tribu­

nal. The appellant will be entitled to costs of this

Court as well as of the Courts below.

ORDER.

In view of the majority judgment of the Court the

appeal is dismissed with costs in favour of Respondent

No. I.

.A.:p:pe,al, diBrnissed.

KRISHAN KUMAR

v.

THE UNION OF INDIA

(JAFER IMAM and J. L. KAPUR, JJ.)

Criminal Trial-Misappropriation-Servant receiving goods

but failing to account to master-Proof of conversion, if necessary­

F alse explanaJ.ion by servant, whether can be taken into consi.Iera·

tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c).

The appellant was employed as an Assistant Store Keeper

in the Central Tractor Organisation, Delhi. He took delivery of

a consignment of iron

and steel received by rail for the

Organisa­

tion and removed them from the railway siding. The goods did

not reach

the Organisation. The appellant absented himself

from

duty on the following days and when he was called he gave

a false explanation

that he had not taken delivery of the goods.

The appellant was tried for misappropriation of the goods, under

s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the

S.C.R. SUPREME COURT REPORTS 453

trial, he took the defence that he had moved the goods to another I959

siding but this was not accepted and the appellant was convicted.

The appellant contended

that his conviction was bad as the

Krishan Kumar

prosecution had failed to prove that he converted the goods to v.

his own use and did not apply them to the purpose for which he The Union of Indi•

had received them.

Held, that the appellant had been rightly convicted. The

offence of misappropriation was established when the prosecution

proved

that the servant received the goods, that he was under a

duty to account to his master and that he had not done so. If

the failure to account was due to an accidental loss then the

facts being within

the servant's knowledge, it was for him to

explain

the loss; it was not for the prosecution to eliminate all

possible defences or circumstances which may exonerate him.

The giving of a false explanation was an element which the

Court could take into consideration in determining the guilty

intention.

Harakrishna Mehtab v. Emperor, A.I.R.

(r930) Pat. 209;

Larnier v. Rex, (r9r4) A.C. 22r ; Emperor v. Santa Singh, A.I.R.

(1944) Lah. 338;

Emperor v. Chattur Bhuj, (r935) l;L.R.

Pat.

108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch,

(r854) 6 Cox. C. C. 445, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal

Appeal No. 114 of 1957.

Appeal

by special leave from the judgment and

order dated December 6, 1955, of the

Punjab High

Court (Circuit Bench) Delhi in Criminal App13al No.

25-D

of 1953, arising out of the judgment and order

dated August 27, 1953, of the

Court of the special judge

at Delhi in Criminal Case No. 3 of 1953.

R. L. Anand, and S. N. Anand, for the appellant.

H. J. Umrigar, and R. H. Dhebar, for the res­

pondent.

1959. May 21. The Judgment of the Court was

delivered by

KAPUR J.-This appeal by special leave is brought

against

the judgment and order of the High

Court of

the Punjab confirming the order of conviction of the

appellant under s. 5(l)(c) of the Prevention of Corrup-

tion Act, 1947 (II of 1947) (hereinafter referred to as

the Act). The High Court reduced the sentence of the

appellant to nine months' rigorous imprisonment.

Kapur].

454 SUPREME COURT REPORTS [1960(1)]

r959 The appellant was employed as an Assistant Store

Keeper in the Central Tractor Organisation at Delhi

Krishan Kuma, d h d

an amongst ot er uties his duty was the taking of

The Uni;; of India delivery of consignment of goods received by rail for

Central Tractor Organisation and in that capacity he

Kapu. J. is alleged to have misappropriated a major portion of

a wagon load of iron and steel W!lighing about 500 Mds.

received

at Delhi Railway

Station from the Tata Iron

& Steel Co., Tatanagar, under F,ailway Receipt

No. 039967 dated August 12, 1950. This consignment

of goods was taken delivery of on October 2, 1950 at

the Lahori Gate Depot. The consignment had been

lying

at the Railway depot for a considerable time

and the

Central Tractor Organisation was, before

taking the delivery, making efforts to have the wharf­

~.ge and demurrage charges reduced but Jt only

succeeded

in getting a reduction of Rs.

lOG The

appellant paid Rs. 2,332-4-0 for demurrage by means of

credit notes P. N. and P. 0. on October 2, and on the

following day he paid a further sum of Rs. 57-3-0 by a.

credit note P. Q. The prosecution case was that this

consignment never reached the Central Tractor

Organisation and that the appellant had removed

these goods

and had misappropriated them. He was

absent from work after

October 4, 1950, on the alleged

ground of illness but he was sent for on October 7, and

appeared before the Director of Administration Mr.

F. C. Gera and he gave an explanation that he (the

appellant)

had

lost the Railway Receipt along with

another Railway Receipt and blank credit notes which

had been signed by the Petrol and Transport Officer.

He also stated that he did not know that the goods

covered

by that Railway Receipt had been cleared.

After this explanation the appellant was handed over to

the police and a case was registered against him at the

instance of Mr.

F.C. Gera on October 7, 1950.

On the following day, that is, October 8, 1950, the

appellant made a statement to Sub~Inspector Sumer

Shah Singh that he had given the goods to Gurbachan

Singh who was traced and in the presence of this Sub­

Inspector who was not in uniform at the time Gur­

bachan Singh handed over Rs. 200 to the appellant

S.C.R. SUPREME COURT REPORTS 455

which the Sub-Inspector took possession of and then z959

Gurbachan Singh took the party which consisted of . .

the Sub-Inspector, Dharam Vir of the Central Tractor Krishan Kumar

Organisation and witness Karta.r Singh to the premises The Uni:~ of India

of Amar Singh at Kotia Khan where iron and steel

goods were seized and recovery memos prepared. Of Kapur J.

the goods covered by the consignment seven packages

were later rec0rnred from the Lahori Gate Goods

Depot.

The defence of the appellant was that he took

delivery

of the goods on

October 2 and 3 and removed

them to another Railway Siding known as Saloon

Siding where the goods of the Central Tractor Organi­

sation used occasionally to be stacked in order to save

wharfage

and demurrage. In his evidence he stated

that he removed these goods to the

Saloon Siding on

October 2 and 3 by means of a truck of the Central

Tractor Organisation which was driven by Sukhdev

Singh. The appellant produced Sukhdev Singh and

two chowkidars in support of his defence that he had

removed these goods from the Lahori Gate Depot to

the Saloon Siding by means of the truck of Sukhdev

Singh and on some on carts. The High Court has not

accepted this evidence. Therefore the position comes

to this that the goods received in that. consignment

were, according to

the appellant's own showing,

removed from

the Lahori Gate Depot but it is not

proved that they reached the

Saloon Siding and they

did not reach the Central Tractor Organisation. There

is also

the fact that the appellant gave false

explana­

tion on October 7, 1950, as to what had happened to

the Railway Beceipt or the credit notes which he had

received from the Central Tractor Organisation and

there is the further fact that the appellant was absent

from

duty from

October 4 to October 7 till he was sent

for Mr. F.C. Gera.

The prosecution also tried to show that the goods

were removed

by Gurbachan

Singh to Amar Singh's

place from where certain iron and steel goods were

recovered. Now these iron

and steel goods do not

tally with the goods which were received from

Tata­

nagar under Railway Receipt No. 039967 and the goods

456 SUPREME COURT REPORTS [1960(1)]

•9$9 seized from Amar Singh's place have not been shown

to be of the Tata Iron & Steel Co's manufacture.

Krlshan Kumar

v. Therefore the case reduces itself to this that the appel-

Th• Union of India lant took delivery of the goods. These goods were

removed from the Lahori Gate Railway Depot by the

K•P•• J. appellant and they never reached the Central Tractor

Organisation. The prosecution sought to connect the

goods found at Amar Singh's place with the goods

received,

taken delivery of and removed by the

appel­

lant but they failed to do so because neither the

identity of the goods is the same nor has Gurbachan

Singh been produced to depose that it was the appel­

lant who asked him to remove the goods for being

taken to Amar Singh's place.

In this view of the matter the question for decision

is

whether the case of the prosecution should be held

to be proved that the appellant had misappropriated

the goods. It emerges from the evidence of both

par­

ties that the goods were received by the appellant and

removed by him; and they never reached the Cen~ral

Tractor Origanisation. Indeed before the High Court

it was not disputed that the appellant took delivery of

the whole consignment at Lahori Gate Depot and " he

was responsible for the actual removal of two consider­

able portions of the consignment on the 2nd and 3rd

of October. "

The offence of which the appellant has been convict­

ed is s. 5(i) (c) of the Act which i~ as follows:-

5. (1)" A public servant is said to commit the offence

of criminal misconduct in the discharge of his duty-

( c) if he dishonestly or fraudulently misappropri­

ates or otherwise converts for his own use any

property entrusted to him or under his control

as a public servant or allows any other person so

to do";

The word 'dishonestly' is defined in s. 24 of the Indian

Penal Code to be

"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'.

S.C.R. SUPREME COUH,T REPORTS 457

" Fraudulently has been defined in the Indian Penal r959

Code in s.· 25 as follows : K . h K

A

· 'd t d th' f dul tl 'f h ris an umti7 '

" person is sa1 o o a mg rau en y i e v.

does that thing with intent to defraud but, not other-Tire Union of India

wise." ·

Wrongful gain includes wrongful retention and wrong- Kapur J.

ful lass includes being kept out of the property as well

as being wrongfully deprived

of property. Therefore when a particular thing has gone into the hands of a

servant he will be guilty of misappropriating the thing

in all circumstances which show a malicious intent to

deprive the master of it. As was said ·by Fazl Ali, ,J.,

in Haralcrishna jlfahtab v. Emperor (1):

"Now I do not mean to suggest that it is either

necessary or possible

in every case of criminal

breach

of trust to prove in what precise manner the

money was spent or appropriated

by the accused;

because under the law,

even temporary retention is

an offence, provided that it is dishonest,. ............. .

........................ I must point out that the essential

thing to be proved in case of criminal breach of

trust is whether the accused was actuated by

dis­

honest intention or-not. As the question of intention

is not a

matter of direct proof,

the Courts have from

time

to time laid down certain broad tests which

would generally afford useful guidance

in deciding

whether in a particular case the accused had or had

not mens rea for the crime.

So in cases of criminal

breach of

trust the failure to account for the money

proved

to have been received by the accused or

giving a false account of its use is generally consi­

dered to be a strong circumstance against the

accused.''

The offence under s. 5(l)(c) is the same as embezzle­

ment, which in English law, is constituted when the

property has been received by the accused for or in

the name or on account of the master or employer of

the accused and it is complete when the servant.

fraudulently misappropriates that property. (Hals­

bury's Laws of England, Vol. 10, 3rd Edition, p. 787)

In Larnier v. Rex(") the offence of embezzlement was

(1) A.I.R. (1930) Patna 209.

58

(2) (191~) A.C. 22r.

458 SUPREME COURT REPORTS [1960(1)]

z959 described as a wilful appropriation by the accused of

Krishan Kumar the property of another. A court of Justice, it was

v. said in that case "cannot reach the conclusion that

The Union of India the crime has been committed unless it be a just result

of the evidence that the accused in what was done or

Kap"' J. omitted by him was moved by the guilty mind."

So the essence of the offence with which the appel­

lant was charged is that after the possession of the

property of the Central Tractor Organisation he

dishonestly

or fraudulently appropriated the property

entrusted to him or under his control as

a public

servant and deprived the owner, i.e., Central Tractor

Organisation of that property.

It is not necessary or possible in every case to prove

in what. precise manner the accused person has dealt

with or appropriated the goods of his master. The

question is one

of intention and not a matter of direct

proof but giving

a false account of what he has done

with the goods received by him may be treated a

strong circumstance against the accused person.

In

the case of a servant charged with misappropriating

the goods of his master the elements of criminal

offence

of misappropriation will be established if the

prosecution proves that the servant received the

goods, that he was under a duty to account to his

master and had not done so. If the failure to account

was due

to an accidental loss then the facts being

within

the servant's knowledge, it is for him to

explain the loss. It is not the law of this country

that the prosecution has to eliminate all possible

defences

or circumstances which may exonerate him.

If these facts are within the knowledge of the accused

then he has to prove them.

Of course the prosecution

has to establish a prima facie case in·the first instance.

It is not enough to establish facts which give rise to

a suspicion and then by reason of s. 106 of the Evid­

ence Act to throw the onus on him to prove his inno­

cence. See Harries, C.J., in Emperw v. Santa Singh (1)

In the present case the appellant received the consign­

ment of goods which ca.me from Tatanagar. It is

admitted that he.removed them and it was found by

(1) A.I.R. (191tl Lah. ~38 at p. 346.

S.C.R. SUPREME COURT REPORTS 459

the High Court that they never reached the Central I959

Tractor Organisation. He gave an explanation in Krishan Kumar

court which has been found to be false. Before v.

Mr. F. C. Gera he made a statement to the effect that The Union of In4i4

he had lost the Railway Receipt and therefore had

never got the delivery of the goods which Wll\S also Kapur J.

false. In these circumstances, in our opinion, t~e

court would be justified in concluding that he had

dishonestly misappropriated the goods of the Central

Tractor Organisation. The giving of false explanation

is an element which the Court can take into conside-

ration. (Emperor v. Chattur

Bhuj

(1)). In Rex v.

William (

2

). Coleridge, J., charged the jury as follows :-

"The circumstances of the prisoner having quit­

ted her place and gone off to Ireland is evidence

from which you

may infer that she intended to

appropriate the money and if you think that she

did so intend, she is gully of embezzlement".

Again

in Reg v.

Lynch (

3

), Moore, J., said:-

"You have further the fact that, after gettingthe

money, the prisoner absconded and did not come

ha.ck till he was in custody. You may infer that

he intended to appropriate this money, and if so,

he is guilty

of embezzlement."

The appllent'.s counsel relied on certain observations

in certain decided cases which, according to his

sub­

mission, support his contention that the prosecution

has to prove not only receipt of goods by the accused

but also to prove that he converted them tc. his own

use and did not apply them to the purpose for which

he received them.

He referred to

Ghulam Haider v.

Emperor

(4); In re Ramakkal

& Others (5) ; Bolai

Chandra Khara v. Bishnu Bejoy Srimani (6); Bhik­

chand v. Emperor (7) ; Pritchard v. Emperor {

8

)~ So

broadly stated this submission does not find' support

even from the cases relied upon by the appellant's

counsel.

They are all decisions on the peculiar

circum­

stances of each case. In Ghulam Raider's case(')

(1) (1935) l.L.R. 15 Patna 108.

(2) (1836) 7 C. & P. 338.

(3) 1854 6 Cox. C.C. 445·

(4) AI.R. 1938 Lah. 534·

(5) A.I.R. 1938 Mad. 172.

(6) A.I.R. 1934 Cal. 425.

(7) A.I.R. 1934 Sindh 22.

(8) A.I.R. 1928 Lah •. 382.

460 SUPREME COURT REPORTS [1960(1)]

'959 the proposition was qualified by saying that proof of

receipt and failure to account "is a long wav towards

f\'rishaii J(a11uir J

v. proof of misappropriation but not the whole way."

The u .. ;o,. of India In that case the books in which receipts ought to

- have been entered were not produced and there was

Kapur J. absence of" clear accounts." In Ramakkal's case (

1

)

the

accused was

the receiver of a currency note found

bv a child and it was held that mere intention to

misappropriate or even preparation to that end was

not an offence. It was a case brought to the High

Court at an intermediate stage for quashing the charge

and the High Court did not do so. Bolai Charul1ra

KJw,ra's case(') only emphasised that p1·oof of one ele­

ment of the criminal breach of trust is not enough for

conviction

and proof of non-payment of money

collec­

ted by a gomastha must be given by the prosecution.

In Bhikchand's case(') it was held that it is only on

proof of non-payment of money received by the accused

that "presumption will arise of misappropriation."

In Pritchard's case(•) also the prosecution did not

produce the books of account showing non-payment.

All these decisions

must be confined to their peculiar

facts

and in their ultimate analysis do not support

the proposition contended for by the appellant.

What the prosecution have proved in this case is

that the appellant took delivery of the goods on

October 2 and 3. His own statement on oath shows

that he removed these goods from the Railway Siding.

This removal is also proved by documentary evidence

in· the form of gate passes. There is also proof of the

fact that the goods did not reach the Central Tractor

Orga.nisaUon. The appellant has given an explanation

that he removed these goods to the Saloon Siding.

This explanation has not been accepted. The pro­

secution have also proved that the appellant in the

first instance ga. ve a false explanation that he had

not taken delivery of the goods. He had absented

himBEllffrom duty and had to be called by the Officer­

in-charge. He has set up the defence of removal

to ·the Sa.loon Siding which was not accepted.

(t) A.l.R. 1938 Mad. 172.

(z) A.l.R. 1934 Cal. 425.

(3) A.I.R. 193-J Sindh 22.

(4} A,l.R. 1928 Lah. 382.

S.C.R. SUPREME COURT REPORTS 461

The prosecution also set out to prove that the goods z959

were disposed of by the appellant by giving them to one Krishan Kumar

Gurbachan Singh who in turn put these at the premi- v.

ses of Amar Singh and some steel goods were recover-The Union of India

ed from there but the prosecution have neither

produced Gurbachan Singh nor has it been proved Kapur J.

that the goods are part of the consignment which was

taken delivery of by the appellant. If under the law

it js not necessary or possible for the prosecution

to prove the manner in' which the goods have been

misappropriated then

the failure of the prosecution

to prove facts it set out to prove would be of little

relevance.

The question would only be one of intention

of the appellant and the circumstances which have been

been above set

out do show that the appellant in

what he ha.s done or has omitted to do was moved by

a guilty mind.

In our opinion the appellant was rightly convicted

and we would therefore dismiss this appeal.

.A.J>peal dismissed.

C. S. D. SW AMY

v.

THE STATE

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. W ANCHOO, JJ.)

Prevention of Corruption-Criminal miscondztct in discharge

of official duty-Charge in respect of specific instances of corruption

found unsustainable on evidence-Conviction based on presumption­

V a:tidity-Prevention of Corruption Act, z947, (2 of z947), ss. 5(z)(a),

5(z)(d), 5(3).

The appellant was put up on trial on charges under ss. 5(1)(a)

and 5(1)(d)

of the Prevention of

Corruption Act, 1947. Payments

of particular sums by way of bribe were not proved against him.

But the High

Court, holding that the'appellant's bare statements

.., from the dock unsupported by any other acceptable evidence

could not satisfactorily account for the large deposits standing

to

his credit in his bank accounts

raised. the presumption under

s. 5(3) of the Act and held him guilty of criminal misconduct in

the discharge of his official

duty under s. 5(1)(d) of the Act, confirming the condction and sentence passed on him by the

l959

May 21.