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Criminal Appeal No.1432 of 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1432 OF 2019

RAMKRUSHNA PRAHLLAD APPELLANT

DONGARDIVE

VERSUS

THE STATE OF MAHARASHTRA RESPONDENT

J U D G M E N T

ATUL S. CHANDURKAR, J.

1. Reversal of the appellant’s acquittal for the offence

punishable under Section 409 of the Indian Penal Code, 1860

1 is

questioned in this criminal appeal. The appellant, on being tried

for the offence punishable under Section 409 of the Penal Code

was acquitted by the trial Court. The Bombay High Court, Bench

at Aurangabad

2, however, reversed the said acquittal. After

convicting the appellant for the offence punishable under Section

409 of the Penal Code, he has been sentenced to suffer rigorous

imprisonment for one year and to pay fine of ₹5,000/-. In default

of payment of fine, he was required to undergo further

1

For short, ‘the Penal Code’

2

For short, ‘the High Court’

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imprisonment for one month.

2. According to the prosecution, the appellant was serving as

Cashier-cum-Counter Clerk with the Telephone Department at

Aurangabad. During the period from 01.07.1993 to 09.10.1993,

the appellant had collected telephone charges from customers

amounting to ₹8,73,737/-. It was alleged that from the said

amount, ₹3,88,035/- was credited to the account of the

Government belatedly and, thus, the appellant had committed

temporary criminal breach of trust. It was also alleged that the

appellant had not credited an amount of ₹4,75,702/- in the

account of the Government despite being entrusted with the said

amount. On a complaint being lodged by the Assistant Accounts

Officer on 11.10.1993, offence under Sections 409, 477 and 420 of

the Penal Code was registered. After completion of the

investigation, charge under Section 409 of the Penal Code was

framed. The appellant denied the said charge and claimed to be

tried.

3. To bring home the aforesaid charge, the prosecution

examined various witnesses. PW1-Ashok Joshi was working as

Assistant Accounts Officer at the Telephone Centre at Aurangabad.

He stated that as a Cash Counter Clerk, it was the duty of the

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appellant to receive the billing amount from customers as per the

amount mentioned in the telephone bills. The amount collected up

to 01.00 p.m. was to be credited in the bank on the same day,

while the balance amount was to be given to the Head Cashier.

This witness stated that a notice was given to the appellant vide

Exhibit-7 enquiring as to why the amount received from various

customers had not been deposited. The appellant failed to reply to

the said notice. He referred to the concerned receipt books signed

by the appellant at Exhibit-8 and a list indicating credit of amount

of ₹4,75,700/- at Exhibit-9. One of the customers had deposited

an amount of ₹4,930/- on 21.08.1993 but the said amount was

actually credited to the account of the Government on 25.09.1993.

In his cross-examination, this witness admitted that Exhibit-9,

which was a list indicating credit of various amounts, did not bear

the signature of the appellant nor was there any handwritten

portion on the same. He further admitted that Exhibit-8, which

was a receipt book, had not been signed by the Accounts Officer or

the Junior Accounts Officer or the Assistant Accounts Officer. He

further stated that if the payment of any telephone bill was not

made by a customer for thirty-five days, his connection would be

disconnected. However, no complaint of any disconnection was

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received from any customer. He further stated that no notice was

served on the appellant with regard to any difference in the receipt

books and the list prepared by him. He also did not find any entry

to be missing in the list as per the receipt books. He admitted that

he had not produced any record to show the details of the receipt

books supplied to the appellant. The daily lists were tallied as per

the receipts in the receipt books supplied to the appellant on day-

to-day basis, regularly. He also admitted that till the lodging of the

report, not a single complaint from any customer as regards

disconnection of the telephone line was received despite having

paid the dues. No audit report was prepared before filing the

complaint.

4. PW2-Ramkrishna Kshirsagar serving as Accounts Officer was

examined at Exhibit-14. In his deposition, the daily list dated

25.08.1993 was exhibited at Exhibit-15. According to this witness,

on 30.09.1993, a subscriber, namely Mr. Udawant had come to

the office along with a receipt of having paid his telephone bill on

25.08.1993. However, the amount paid by him was shown to be

entered in the record on 21.09.1993. In his cross-examination, he

stated that if any entry from the daily list was not recorded in a

subscribers’ record card, bills were again demanded for the

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amount deposited by the subscriber. The entries made in the daily

list were taken in the subscribers’ record card. He further stated

that no complaint had been received against the appellant till

01.10.1993. He also stated that no difference or fault was found in

the daily list and the receipt books produced by the appellant. He

further admitted that the daily list and receipt books prepared by

the appellant were verified daily. As regards collection of the

amount from Mr. Udawant on 25.08.1993 was concerned, he

stated that he could not point out the office copy of the receipt that

was issued to Mr. Udawant on 25.08.1993 from the receipt book

at Exhibit-8. He further admitted that there was no documentary

evidence to show which receipt books were supplied to the

appellant.

5. PW3-Bharat Kawde serving as a Clerk in the Telephone

Department was examined at Exhibit-21. PW4-Deepak Sonwane

was examined at Exhibit-22. Though the prosecution claimed that

he had acted as a panch witness, he stated that his signature was

obtained on a blank paper. He was, thus, declared hostile.

PW5-Lata Kolhe serving as Junior Accounts Officer was examined

at Exhibit-23. She admitted that no complaint was received

against the appellant to the effect that despite recovering an

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amount, the same was not deposited by him with the office. PW6-

Murlidhar Dolas, a panch witness, was examined at Exhibit-24.

He too was declared hostile. Similarly, PW7-Rahul Magare, who

was another panch witness was also declared hostile. PW8 -

Bhaurao Pradhan was working as a receptionist at Hotel

Meghdoot. He, however, denied having made any statement to the

police. He was also declared hostile. PW9-Premnarayan Goyal was

dealing with sales of tea powder. He was examined to indicate

payment being made by him against the telephone bill. He,

however, stated that whenever he used to pay the telephone bills,

he used to receive the receipts and his telephone was never

disconnected. He also did not receive any notice for disconnection.

The amounts paid by him were credited on the same day. PW10 -

Baban Wani was examined at Exhibit -36. He was working as a

Section Supervisor in the Telephone Department. He stated that it

was not his duty to issue any receipt book and that on the oral

instructions of the Accounts Officer, he had issued ten receipt

books to the appellant. He admitted that with regard to the present

proceedings, a departmental enquiry had been initiated against

him as well as against other staff members. PW11-Parshuram

Dhotre was examined at Exhibit-41. He was working as Exa miner

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of Documents. After examining various documents sent to him, he

had sent his opinion on 31.12.1997 at Exhibit-78.

6. PW12-Adinath Gore was the initial Investigating Officer

3. He

was examined at Exhibit -85. Before completion of the

investigation, he was transferred to another police station. He

admitted that though he had seized the documents as per the

seizure panchnama at Exhibit-86 from the appellant, he did not

obtain the appellant’s signature on the same. Similarly, he had not

put any date below his signature on Exhibit-86. Digambar

Gadekar was examined at Exhibit-90 as PW13. He too undertook

investigation for some duration. He stated that he had taken the

specimen handwriting and signatures of the appellant in presence

of two witnesses. The same were at Exhibit-91. He, however,

admitted that he did not obtain the signature of the appellant on

Exhibit-91. PW14-Shrikant Mahajan was examined at Exhibit-93.

He stated that except filing of the chargesheet, he did not

undertake any investigation. PW15 -Diwakar Padalkar was

examined at Exhibit-108. He was serving as a Clerk at the

Telephone Office. He stated that he had imposed penalty of ₹10/-

on Mr. Udawant, a subscriber, as he had paid his bill late.

3

For short, ‘IO’

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According to him, he was shown the receipt of payment of the bill

by Mr. Udawant. In his cross-examination, he stated that no

telephone connection of any subscriber was disconnected. He

further admitted that there was no record to indicate penalty being

imposed on Mr. Udawant. Mr. Prabhakar Udawant, a

subscriber, was examined at Exhibit-109. He stated that bill dated

15.07.1993 for ₹3,903/- was paid on time. On receiving a notice

from the Telephone Department that the bill had not been paid, he

showed the receipt of payment. In his cross-examination, he stated

that he had no grievance against the Telephone Department.

Receipt No.31 had been handed over to the police.

7. The statement of the appellant was recorded under Section

313 of the Code of Criminal Procedure, 1872

4. While answering

Question No.46, the appellant stated that a false case had been

filed against him and he was submitting an application for calling

two registers to show that the entire amount was paid to the

Accounts Officer, Mr. Kshirsagar. The records sought by the

appellant were the daily cash handover register for the period from

01.02.1993 to 05.10.1993 and the stock register regarding supply

of receipt books to the Cash Counter Clerk, being the appellant

4

For short, ‘the Code’

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himself, for the period from 01.02.1993 to 05.10.1993. The

appellant also stated that the case of the prosecution was false.

8. The learned Judge of the trial Court after considering the

entire evidence on record was of the view that the evidence led by

the prosecution was not specific and clear. The exact amount

collected by the appellant as well as the amount credited by him

thereafter had not been stated with any particulars. It was further

observed that the evidence on record was vague and general in

nature. The registers stated to be seized by the prosecution could

not be exhibited as the witnesses did not support the prosecution.

The procedure laid down in Section 100(7) of the Code while

effecting seizure of forty-six articles from the house of the appellant

had not been followed. For all these reasons, the trial Court held

that the prosecution had failed to prove the charge against the

appellant. It, accordingly, acquitted him of the said offence.

9. Mr. B.H. Marlapalle and Mr. Sudhanshu S Choudhari,

learned Senior Advocates for the appellant, in support of the

appeal submitted that the High Court committed an error in

reversing the judgment of the trial Court and convicting the

appellant for the offence punishable under Section 409 of the Penal

Code. It was submitted that the trial Court having appreciated the

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evidence in the correct perspective and having thereafter

concluded that the prosecution had failed to prove the charge

beyond reasonable doubt, the High Court by ignoring the settled

principles as regards interference with an order of acquittal

proceeded to set aside the judgment of the trial Court. Merely

because the High Court was of the opinion that another view was

possible on the basis of the same evidence, it chose to reverse the

acquittal of the appellant. Reference in this regard was made to the

decision in Chelloor Mankkal Narayan Ittiravi Nambudiri Vs.

State of Travancore-Cochin

5. It was then urged that on a proper

consideration of the entire prosecution material, it was clear that

the offence of criminal breach of trust was not made out. The

necessary ingredients to make out such offence being entrustment

of property and dishonest intention while misappropriating the

same had not been proved. The manner in which there had been

actual entrustment of the amount of ₹8,73,737/- was not proved.

Similarly, the belated credit of the amount of ₹3,88,035/- was also

not proved. Moreover, there was no evidence on record to indicate

any dishonest intention on the part of the appellant. Unless these

material aspects were duly proved, conviction for the offence

5

AIR 1953 SC 478

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punishable under Section 409 of the Penal Code would not be

possible. To substantiate the contention that the offence under

Section 409 of the Penal Code had not been made out, reliance was

placed on the decision in R. Venkatakrishnan vs. Central Bureau

of Investigation

6. It was pointed out from the record that the

appellant had filed applications seeking production of the relevant

records maintained by the Telephone Department. Despite being

ordered to produce that record, the prosecution failed to do so. The

trial Court rightly drew adverse inference against the prosecution

for that reason. The High Court, however, failed to give due

importance to this aspect. It was then submitted that the High

Court sought to shift the burden of proof on the appellant when it

observed that it was for the appellant to prove his innocence. It

was, thus, submitted that on an overall consideration of the entire

material on record, it was clear that the prosecution had failed to

bring home the charge of criminal breach of trust against the

appellant. The trial Court having rightly acquitted the appellant,

the judgment of the High Court reversing the appellant’s acquittal

ought to be set aside.

6

2009 INSC 1037

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10. Per contra, Mr. Shrirang B. Varma, learned counsel

representing the State of Maharashtra, supported the impugned

judgment. He submitted that the High Court rightly found that

there had been entrustment of an amount of ₹8,73,737/- to the

appellant, who was serving as Cashier-cum-Counter Clerk. An

amount of ₹3,88,035/- had been belatedly credited to the account

of the Government while an amount of ₹4,75,702/- had not been

so credited. The various documents on record including Exhibits

7 to 9, as well as the opinion of the handwriting expert had not

been properly considered by the trial Court. The High Court took

into consideration this material to conclude that the appellant was,

in fact, guilty of the offence of criminal breach of trust. The conduct

of the appellant, as was evident from record also pointed out to his

dishonest intention. All necessary ingredients constituting an

offence punishable under Section 409 of the Penal Code had been

duly proved. The High Court, therefore, rightly concluded that the

acquittal of the appellant by the trial Court was not at all justified

and that his guilt had been proved beyond reasonable doubt. He,

therefore, submitted that the judgment of conviction passed by the

High Court did not call for any interference. The appeal was liable

to be dismissed.

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11. Since the impugned judgment is one of reversal of acquittal,

the broad principles to be borne in mind by an appellate Court

when it considers an appeal from an order of acquittal are required

to be noted. In this regard, we may refer to the observations in

paragraph 20 of the judgment in Chelloor Mankkal Narayan

Ittiravi Nambudiri (supra) which reads as under:

“20. It cannot be disputed that the High Court, even though it was

hearing an appeal from an order of acquittal, had full powers to

review the entire evidence on the record and reach its own conclusion

that the acquittal order should be set aside. But as the Privy Council

pointed out in --'Sheoswarup v. Emperor' , in exercising these powers

the High Court should and will always give proper weight and

consideration to such matters as: (1) the views of the trial court as to

the credibility of witnesses; (2) presumption of innocence in favour of

the accused, a presumption certainly not weakened by the fact that

he had been acquitted at the trial; (3) the right of the accused to the

benefit of any doubt; and (4) the slowness of an appellate court in

disturbing a finding of fact arrived at by a Judge who ha d the

advantage of seeing the witnesses.”

12. The appellant was charged for the offence punishable under

Section 409 of the Penal Code. In this regard, we may note that

Section 405 of the Penal Code defines ‘criminal breach of trust’.

Under this provision, there has to be entrustment of any property

to a person or such person should have dominion over property.

That person, who has been so entrusted with property, may have

either dishonestly misappropriated or converted that property to

his own use or dishonestly used or disposed of that property in

violation of any direction of law prescribing the mode in which

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such trust has to be discharged. Section 406 of the Penal Code

provides for criminal breach of trust. Section 409 of the Penal Code

deals with criminal breach of trust wherein property is entrusted

to enumerated category of persons. It is also important to note that

‘dishonest intention’ is an essential element for constituting an

offence of criminal breach of trust. This aspect has been

considered in detail in R. Venkatakrishnan (supra) that was relied

upon by the learned Senior Advocates for the appellant. It was

observed therein that breach of trust simplicitor would not be an

offence as long as it was not associated with an intention that was

dishonest. Referring to the term ‘dishonest’ as defined in Section

24 of the Penal Code, it was held that an offence of breach of trust

would be complete only when the misappropriation of such

property had been made dishonestly. Even temporary

misappropriation would fall within the ambit of the said offence. It

would, therefore, be necessary to examine as to whether the

prosecution has brought on record any material to indicate

entrustment of property to the appellant as well as the element of

‘dishonest intention’ on his part leading to misappropriation of

property. Reference may also be made to the decision of this Court

in Chelloor Mankkal Narayan Ittiravi Nambudiri (supra) wherein

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it was observed as under:

“21. The other point that requires consideration is, whether on the

prosecution evidence as it stands, the accused can be held guilty of

criminal breach of trust? As laid down in Section 385, Cochin Penal

Code, (corresponding to Section 405, Indian Penal C ode) to

constitute an offence of criminal breach of trust it is essential that

the prosecution must prove first of all that the accused was

entrusted with some property or with any dominion or power over

it. It has to be established further that in respect of the property so

entrusted, there was dishonest misappropriation or dishonest

conversion or dishonest use or disposal in violation of a direction of

law or legal contract, by the accused himself or by someone else

which he willingly suffered to do.”

13. While considering the aspect of entrustment of property,

which in the present case is in the form of receipt of cash from

customers, the deposition of PW12, the IO who had initially

investigated the crime and had effected seizures is material. In

paragraph 3 of his deposition on cross-examination, PW12 stated

as under:

“3/- The complainant had not produced the cashbook alongwith the

documents produced with the first information report. At the time of

filing complaint, complainant did not produce balancesheet, daily

register, audit report, and rough cashbook. Not a single telephone

subscriber stated before me alleging that he did not receive receipt

on payment of the amount and that his telephone connection was

disconnected. The Officers of Telephone Department did not show

subscribers' individual card. I told the complainant Ashok Joshi and

Shri Bhat to show me original cashbook, audit report and relevant

documents about collection of the amount but the aforesaid

documents and cashbook were not shown to me till I was

transferred.”

The aforesaid admissions clearly indicate that despite being

called upon by the IO to produce the original cashbook, audit

report and other relevant documents including collection of

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amounts from subscribers, the same were not produced by the

complainant, PW1 and other officers of the Telephone Department.

These documents formed the basis of entrustment of property to

the appellant. However, in the absence of these material

documents, it would be difficult to hold that there was, in fact,

entrustment of the amount of cash to the appellant, which is one

of the basic ingredients for constituting breach of trust. The

original cashbook or the daily register or the rough cashbook

would have indicated the collection of cash by the appellant. This

would have led to the position that despite receiving the said

amounts, the same were either not deposited by him or were

temporarily misappropriated. When it was the specific charge

against the appellant that he had collected an amount of

₹8,73,737/- from various customers during the period from

01.07.1993 to 09.10.1993 and that an amount of ₹3,88,035/- was

credited to the account of the Government belatedly while the

amount of ₹4,75,702/- had not been credited, the aforesaid

documents would have been very relevant to prove the same. The

same are, however, not on record.

14. Pertinently, the appellant, in defence had sought production

of the daily cash handover register for the period from 01.02.1993

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to 05.10.1993 and the stock register of supply of receipt books to

him. However, the aforesaid documents sought by the appellant

were not produced before the trial Court. In paragraph 21 of the

judgment of the trial Court, it was observed as under:

“21. In this case I have to mention here that, on behalf on accused

his learned counsel Shri. H.M. Dongre has repeatedly filed

application to call the concern registers and documents from the

telephone office to ascertain what amount was misappropriated by

accused and on which dates the amounts were collected but the

telephone office, A'bad has not produced the same documents,

therefore with holding the documents by one party in such type of

serious case, court can draw an adverse inference U/s. 114(g) of

Indian Evidence Act against the party who with held the documents.”

This relevant aspect, however, has been ignored by the High

Court while overturning the judgment of the trial Court. It

observed in paragraph 9 of the impugned judgment that the

appellant ought to have produced the daily registers if he had

credited the amount with the Government or had handed over the

amount to the main cashier. In our view, the trial Court was

justified in drawing an adverse inference against the prosecution

for its failure to place on record the relevant material that was in

the custody of the Telephone Department, the complainant. The

non-production of the concerned register and documents when

considered along with the admissions of the IO would lead to an

inference that such material was not at all available with the

complainant. The said material was necessary to prove the aspect

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of entrustment to the appellant.

15. Yet another relevant circumstance relied upon by the

prosecution is the seizure of forty-six items of documentary nature

from the house of the appellant. According to the prosecution,

during the course of investigation, the house of the appellant was

searched and about forty-six articles referred to in the seizure

panchnama at Exhibit-86 were seized. PW12, Mr. Aadinath Gore,

who was working as a Police Inspector at the relevant time ,

deposed at Exhibit-85 that on 13.10.1993, he had taken search of

the residential house of the appellant and had seized receipt books,

duplicate copies of telephone bills and other documents mentioned

in the seizure panchnama. In his cross-examination, this witness

stated that the records had been seized by the concerned Head

Constable, but the witness was not knowing his whereabouts. He

further stated in his cross-examination that he did not obtain the

signatures of the appellant on the seizure panchnama. He also

stated that Exhibit-86 was not in his handwriting and that he had

not put a date below his signature thereon.

16. The seizure was effected in the presence of two witnesses.

PW6, Mr. Murlidhar Dolas was examined at Exhibit -24. This

witness stated that he did not know the contents of the seizure

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panchnama and was, thus, declared hostile. In his cross -

examination by the appellant, he stated that when he had gone to

the police station for his work, his signatures were obtained by the

police. The other witness, Mr. Rahul Magare was examined as PW7

below Exhibit-25. This witness was also declared hostile and in his

cross-examination by the appellant, he stated that when he was

with his auto-rickshaw in front of the police station, he was called

and his signatures were obtained on some documents.

17. The trial Court on considering this evidence found that while

effecting seizure of the aforesaid articles from the house of the

appellant, the IO failed to follow the procedure laid down in Section

100(7) of the Code. It, further, found that the seizure of the forty-

six articles was not supported by the two witnesses examined by

the prosecution. It, therefore, held that merely on the basis of the

evidence of the police officer at PW12, the same was not sufficient

to prove the seizure panchnama and seizure of documents from

appellant’s house.

The High Court, however, held that though both the panch

witnesses had turned hostile, there was no reason for PW12, the

police officer, to give false evidence. On this basis, it proceeded to

uphold the seizure of the forty-six articles mentioned in Exhibit-

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86. It, further, held that mere absence of the appellant’s signature

on the seizure panchnama indicating its copy being supplied to

him as required by Section 100(7) of the Code was not very

relevant. The said aspect was brushed aside by observing that the

requirement in that regard was not mandatory in nature and that

if there was convincing evidence, the IO could be believed in such

circumstances.

18. In our view, this line of reasoning by the High Court while

overturning the judgment of acquittal recorded by the trial Court

cannot be accepted. The entire case of the prosecution rests on

documentary evidence and Exhibit-86, on the basis of which forty-

six articles were seized, constitutes a material part thereof. There

are serious infirmities in proving the seizure with both the seizure

witnesses not having supported the prosecution. Further, there

was infraction of the requirements of Sections 100(4) and 100(7) of

the Code due to its non-compliance. In this scenario, the seizure

could not be held to be duly proved solely on the basis of deposition

of the IO without any further corroboration. There is no

explanation given by the IO as to why a list of the articles seized

from the appellant’s house was not furnished to him.

We, therefore, find that the High Court erred in relying upon

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the seizure of the said articles and further observing that the same

was an incriminating circumstance against the appellant, for

which he had not furnished any explanation. The burden of

proving a valid seizure of the articles was on the prosecution, but

it failed to prove the same, in accordance with law.

19. It is true that non-compliance of the requirements of Section

100 of the Code by itself would not vitiate a seizure and the same

would be an irregularity in the investigation. However, when this

factor is considered cumulatively with other factors that contribute

to doubting the prosecution case, the same would weigh in favour

of the appellant, especially in an appeal against acquittal. In this

regard, we may refer to two decisions of this Court. In Sunder

Singh Vs. State of Uttar Pradesh

7, it was held as under:

“In respect of the search of the room occupied by the appellant and

the recovery of the bloodstained shirt and bloodstained pants

aforesaid it was necessary to have at least two search witnesses as

required by Section 103. Assuming that the two rickshaw-wallahs

who actually witnessed the search as found by the Courts below were

not respectable inhabitants of the locality, that circumstance would

not invalidate the search. It would only affect the weight of the

evidence in support of the search and the recovery. Hence at the

highest the irregularity in the search and the recovery in so far as the

terms of Section 103 had not been fully complied with would not

affect the legality of the proceedings. It only affected the weight of

evidence which is a matter for courts of fact and this Court would not

ordinarily go behind the findings of fact concurrently arrived at by

the courts below.”

Similarly, in State of Punjab Vs. Balbir Singh and others

8,

7

AIR 1956 SC 411

8

1994 INSC 96

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this Court held as under:

“At this juncture we may also dispose of one of the contentions that

failure to comply with the provisions of Cr.P.C. in respect of search

and seizure even upto that stage would also vitiate the trial. This

aspect has been considered in a number of cases and it has been held

that the violation of the provisions particularly that of Sections 100,

102, 103 or 165 Cr.P.C. strictly per se does not vitiate the prosecution

case. If there is such violation, what the courts have to see is whether

any prejudice was caused to the accused and in appreciating the

evidence and other relevant factors, the courts should bear in mind

that there was such a violation and from that point of view evaluate

the evidence on record.”

In the light of the aforesaid position, weightage to be given to

the articles stated to be seized from the house of the appellant

would have to be cumulatively assessed with the other material on

record.

20. Exhibit-8 comprises various receipt books indicating receipt

of amounts towards telephone bills. PW1, the Assistant Accounts

Officer, admitted that there was no record produced that the

receipt books at Exhibit-8 were supplied to the appellant. He

admitted that he had personally not seen the said receipt books

being supplied to the appellant. No record was produced to show

details of the receipt books supplied to the appellant. Exhibit-9

was claimed to be a list comprising ten pages submitted by the

appellant indicating credit of an amount of ₹3,88,035/- and non-

payment of ₹4,75,702/-. PW1 admitted that Exhibit-9 did not bear

the signature of the appellant nor was there any handwritten

portion thereon. We have perused Exhibit -9. It is a printed

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document running into ten pages containing telephone numbers,

the amount paid/unpaid towards each telephone number. There

is nothing to connect the appellant with the figures mentioned in

Exhibit-9 and it could not have been relied upon by the High Court.

It would have been a different matter if the entire chain indicating

receipt of amounts by the appellant being shown followed by short

deposit or non-deposit of such amounts through the daily deposit

registers. However, the prosecution failed to bring on record the

relevant documents/registers to prove the same. In fact, PW12, the

IO also admitted that despite telling the complainant and other

officers to show him the original cashbook, audit report and other

documents indicating collection of amounts, this record was not

produced.

21. We find that there is yet another material infirmity in the

impugned judgment of the High Court. The appellant had been

acquitted by the trial Court and his acquittal was the subject

matter of challenge before the High Court. After setting aside the

judgment of the trial Court and convicting the appellant for the

offence punishable under Section 409 of the Penal Code, it was

necessary for the High Court to have heard the appellant on the

quantum of sentence. In other words, before sentencing him for

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Criminal Appeal No.1432 of 2019

the first time for the offence punishable under Section 409 of the

Penal Code, the appellant ought to have been heard. The record,

however, indicates that without hearing him, the appellant was

sentenced to suffer rigorous imprisonment for a period of one year

and to pay fine of ₹5,000/-. After the arguments of counsel were

heard by the High Court on 29.09.2017, the judgment was

reserved. It was pronounced on 12.10.2017 and the appellant was

sentenced in the aforesaid manner.

22. We may in this context refer to a recent decision of this Court

in Mukesh Kumar Yadav Vs. The State (UT of Andaman &

Nicobar Islands) Etc.

9. After referring to the provisions of Section

386 of the Code, this Court held in paragraphs 12 to 17 and 19 as

under:

“12. Equally, situations may arise where the trial court acquits the

accused. In an acquittal, the question of hearing on sentence will not

arise. On appeal by the State or by the victim/informant, what should

be the position if the higher court reverses the acquittal and for the

first time convicts the accused. To appreciate this position, a

reference needs to be made to Section 386, Cr.P.C. (equivalent to

Section 427, BNSS). Section 386(a), Cr.P.C., which is relevant for our

purpose reads as under:-

“386. Powers of the Appellate Court .—After perusing such

record and hearing the appellant or his pleader, if he appears,

and the Public Prosecutor if he appears, and in case of an appeal

under section 377 or section 378, the accused, if he appears,

the Appellate Court may, if it considers that there is no

sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order or acquittal, reverse

such order and direct that further inquiry be made, or that

the accused be re-tried or committed for trial, as the case

9

2026 INSC 559

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Criminal Appeal No.1432 of 2019

may be, or find him guilty and pass sentence on him

according to law;

……”

13. It can be seen from Section 386(a), Cr.P.C., that where in an

appeal from an order of acquittal, the court hearing the appeal finds

the accused guilty it is required to pass a sentence on him according

to law.

14. In Kumar Exports Vs. Sharma Carpets

10, this Court

interpreting Section 386(a), Cr.P.C., while holding that appellate

court ought not, after recording conviction, remit the matter to the

trial court and that the appellate court is obligated to impose an

appropriate sentence, held as under:-

“26. This Court has also noticed a strange and very

disturbing feature of the case. The High Court, after

convicting the appellant under Section 138 of the Act,

remitted the matter to the learned Magistrate for passing

appropriate order of sentence. This course, adopted by the

learned Single Judge, is unknown to law. The learned Single

Judge was hearing an appeal from an order of acquittal. The

powers of the appellate court, in an appeal from an order of

acquittal, are enumerated in Section 386(a) of the Code of

Criminal Procedure, 1973. Those powers do not

contemplate that an appellate court, after recording

conviction, can remit the matter to the trial court for

passing appropriate order of sentence. The judicial function

of imposing appropriate sentence can be performed only by

the appellate court when it reverses the order of acquittal

and not by any other court. Having regard to the scheme of

the Code of Criminal Procedure, 1973 this Court is of the

view that after finding the appellant guilty under Section

138 of the Act, the judicial discretion of imposing

appropriate sentence could not have been abdicated by the

learned Single Judge in favour of the learned Magistrate.

Having found the appellant guilty under Section 138 of the

Act it was the bounden duty of the High Court to impose

appropriate sentence commensurate with the facts of the

case. Therefore, we do not approve or accept the procedure

adopted by the High Court. Be that as it may, in this case,

we have found that reversal of acquittal itself wa s not

justified.”

[Emphasis supplied]

15. Not only should the appellate court not remand the matter to

the trial court only for the purpose of imposing a sentence, after it

finds accused guilty, it has a bounden duty to hear and impose an

appropriate sentence.

16. The appellate court which will include the High Court, in a given

scenario, while recording a conviction after reversing the acquittal,

10

2008 INSC 1437

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Criminal Appeal No.1432 of 2019

should adjourn the matter to a suitable date, hear the convicts, and

impose an appropriate sentence itself.

17. In fact even this Court has, while convicting the accused for the

first time, after recording the conviction, adjourned the matter to a

particular date to hear the accused on the question of sentence. In

Suryamoorthi and Another v. Govindaswamy and Others

11, this

Court held as under:-

“14. Since we are convicting Accused 1, 4 and 7 for the first time

in this Court we would like to give them an opportunity of being

heard on the question of sentence as required by Section 235(2)

of the CrPC. The case will be put up before us after 10 days for

hearing the accused on the question of sentence. The acquittal

of the rest of the Accused 2, 3, 5 and 6, is however, confirmed.

The sums recovered from the possession of the convicted

accused will be made over to PW 2. As regards the amount of Rs

33,600 recovered from PW 2, since the High Court has already

given appropriate directions, we need not make further orders.”

19. What is clear from the above discussion is that, a court which

convicts the accused for the first time has to hear the accused on

sentence. If it is a trial court then Section 235(2), Cr.P.C., will apply.

If it is the appellate court which is convicting the accused for the first

time after reversing the acquittal, the appellate court has to hear the

convict on sentence. The appellate court cannot relegate the matter

to the court below only for the purpose of imposing a sentence after

the appellate court had recorded a conviction. That will be contrary

to Section 386(a), Cr.P.C., and the judgments of this Court.”

23. Since we are of the view that the prosecution had failed to

bring home the charge against the appellant and that reversal of

the appellant’s acquittal by the High Court was unwarranted in

the facts of the present case, nothing much would turn on this

aspect. However, since it is clear from the record that the High

Court had failed to hear the appellant before proceeding to

sentence him for the first time, reference has been made to this

infirmity.

24. Before parting, we note that the High Court while reversing

11

(1989) 3 SCC 24

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Criminal Appeal No.1432 of 2019

the acquittal of the appellant has given undue importance to the

alleged inability of the appellant to explain circumstances relating

to documents shown to have been seized during investigation. The

seizure, as found earlier, has been rendered doubtful due to

various shortcomings. We may in this context gainfully refer to the

following observations of this Court in Rabindra Kumar Dey Vs.

State of Orissa

12.

“The Courts below appear to have convicted the appellant on the

basis of the decision referred to above and have held that since the

explanation given by the appellant was false, an inference of

misappropriation could reasonably be drawn against him. This

proposition cannot be doubted. But the question is whether the

explanation given by the appellant in this case can be said to be

absolutely false? Another question that arises is what are the

standards to be employed in order to judge the truth or falsity of the

version given by the defence? Should the accused prove his case with

the same amount of rigour and certainty, as the prosecution is

required, to prove a criminal charge, or it is sufficient if the accused

puts forward a probable or reasonable explanation which is sufficient

to throw doubt on the prosecution case? In our opinion three cardinal

principles of criminal jurisprudence are well-settled, namely:

(1) that the onus lies affirmatively on the prosecution to

prove its case beyond reasonable doubt and it cannot

derive any benefit from weakness or falsity of the defence

version while proving its case;

(2) that in a criminal trial the accused must be presumed

to be innocent unless he is proved to be guilty; and

(3) that the onus of the prosecution never shifts.

It is true that under section 105 of the Evidence Act the onus of

proving exceptions mentioned in the Indian Penal Code lies on the

accused, but this section does not at all indicate the nature and

standard of proof required. The Evidence Act does not contemplate

that the accused should prove his case with the same strictness and

rigour as the prosecution is required to prove a criminal charge. In

fact, from the cardinal principles referred to above, it follows that, it

is sufficient if the accused is able to prove his case by the standard

of preponderance of probabilities as envisaged by section 5 of the

Evidence Act as a result of which he succeeds not because he proves

12

1976 INSC 204

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Criminal Appeal No.1432 of 2019

his case to the hilt but because probability of the version given by

him throws doubt on the prosecution case and, therefore, the

prosecution cannot be said to have established the charge beyond

reasonable doubt. In other words, the mode of proof, by standard of

benefit of doubt, is not applicable to the accused, where he is called

upon to prove his case or to prove the exceptions of the Indian Penal

Code on which he seeks to rely. It is sufficient for the defence to give

a version which competes in probability with the prosecution version,

for that would be sufficient to throw suspicion on the prosecution

case entailing its rejection by the Court.”

[emphasis supplied by us]

These observations are sufficient for us to conclude that the

High Court erred in shifting the burden on the appellant.

25. Thus, having considered the entire material on record, we are

of the considered view that the trial Court had rightly acquitted the

appellant. The prosecution had failed to prove entrustment of

property to the appellant. The material on record is insufficient to

conclude that the appellant was guilty of misappropriation of that

property. There is also no evidence whatsoever to indicate any

dishonest intention on the part of the appellant that would have

resulted in commission of an offence punishable under Section

409 of the Penal Code. The High Court committed an error in

reversing the judgment of acquittal. It failed to give due weightage

to the fact that the trial Court had an opportunity to consider the

demeanour of witnesses after which on assessing the entire

evidence, it acquitted the appellant. Ignoring the absence of

material documents and the failure of the complainant to produce

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Criminal Appeal No.1432 of 2019

the relevant records despite being required to do so by the IO, the

High Court accepted the insufficient material on record to overturn

the acquittal of the appellant. On reassessing the entire evidence

on record, it can be concluded that the trial Court had rightly

acquitted the appellant. Its judgment, therefore, deserves to be

restored.

26. Accordingly, the judgment dated 12.10.2017 passed by the

High Court in Criminal Appeal No.278 of 2002 is set aside. The

acquittal of the appellant as recorded by the learned Chief Judicial

Magistrate, Aurangabad in RCC No.80163 of 1996 dated

20.02.2002 is restored. The appellant is, accordingly, acquitted for

the offence punishable under Section 409 of the Penal Code. His

bail bonds stand cancelled. The Criminal Appeal is allowed in the

aforesaid terms. Pending Interlocutory Application is also disposed

of.

…...………………………..J.

[ UJJAL BHUYAN ]

.…..………………………..J.

[ATUL S. CHANDURKAR]

NEW DELHI,

OCTOBER 8, 2026.