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PETITIONER:

JIWAN DASS, MITTAR PAL YADAV

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 26/02/1999

BENCH:

G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

Both these appeals are directed against the Judgment

of a learned Single Judge of Punjab & Haryana High Court in

Criminal Revision No. 245 of 1992. By the impugned

Judgment, the High Court has upheld the conviction and

sentence against the two appellants under Section 409 of the

Indian Penal Code for having committed criminal breach of

trust in respect of 4300 litres of diesel oil.

The prosecution case in nutshell is that both the

accused persons were posted in the office of Government Heat

Treatment Centre at Bahadurgarh and on 23.2.82, they were

authorised to bring 10,000 litres of light diesel oil from

the Indian Oil Corporation, Delhi. For that purpose the

letter of authority as well as the bank draft to the tune of

Rs.28,275.83 were given to them. The said two accused

persons deposited the bank draft with Indian Oil Corporation

and took delivery of 10,000 litres of light diesel oil but

ultimately the quantity of diesel was found to be less by

4300 litres, the value of which was Rs.12,160/-. It is the

prosecution case that both the accused persons committed the

embezzlement of oil in question. The prosecution examined

as many as eight witnesses to establish the case against the

accused persons. The accused persons also examined two

defence witnesses. The learned Sub Divisional Judicial

Magistrate, who tried this case by his Judgment dated

25.7.91 came to hold that the prosecution has been able to

establish the charges beyond reasonable doubt against both

the accused persons and accordingly convicted them under

Section 409 IPC and sentenced them to undergo rigorous

imprisonment for three years and imposed a fine of

Rs.3000/-, in default to further undergo imprisonment for

three months. The accused persons preferred appeal before

the Sessions Judge and the learned Sessions Judge affirmed

the conviction and sentence passed by the learned Magistrate

and dismissed the appeal. The matter was then carried to

High Court in revision and the High Court by the impugned

Judgment having dismissed the said revision, the present

appeals have been preferred.

Mr. R.K. Jain, the learned Senior Counsel, appearing

for accused Jiwan Dass, appellant in Criminal Appeal No.

990 of 1995, contended that the bank draft in question which

was handed over to accused Jiwan Dass having been duly

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deposited with the Indian Oil Corporation and thereafter the

diesel in question having been entrusted to accused Mittar

Pal Yadav, and there being no entrustment of the said diesel

to accused Jiwan Dass, which is the gravamen of the charge

in the present case, the courts below committed error in

convicting accused Jeewan Dass under Section 409 IPC. Mr.

Jain also further contended that Jeewan Dass being a senior

officer had been sent with the bank draft as the amount was

a heavy amount. Any dereliction on his part in not himself

taking delivery of the diesel but the diesel having been

entrusted to accused Mittar Pal Yadav, Jiwan Dass might have

been negligent in discharging official duty but that would

not tantamount to commission of offence under Section 409

IPC and, therefore, the conviction and sentence passed

against Jiwan Dass is liable to be set aside.

Mr. Ranbir Yadav, the learned counsel, appearing for

Mittar Pal Yadav, on the other hand submitted that accused

Mittar Pal Yadav was a junior officer and he acted at the

behest of accused Jiwan Dass and in-fact signed the

documents and the register without even verifying the

contents thereof and, therefore, offence if any, was

committed by Jiwan Dass and not by Mittar Pal Yadav.

Mr. Ajay Siwach, the learned counsel, appearing for

the State of Haryana on the other hand contended that both

the accused persons having been sent with the money with the

direction to bring diesel and both of them having proceeded,

both of them are liable for the commission of offence and

the courts below, therefore, were justified in convicting

them under Section 409 IPC. The learned counsel also

contended that Jiwan Dass being the person who was

authorised to take delivery of diesel, cannot be exonerated

of his liability even factually, delivery was taken by

Mittar Pal Yadav inasmuch as in eye of law it must be held

that entrustment was to Jiwan Dass. The learned counsel

further contended that even if it is held that there has

been no entrustment of diesel to Jiwan Dass but yet it must

be held that Jiwan Dass held the dominion over the diesel

and, therefore, he has committed an offence under Section

409 IPC for shortage of the diesel oil.

In view of the rival submissions, the question that

arises for consideration is whether both the accused persons

or any one of them committed the offence under Section 409

IPC. At the outset it must be stated that there was no

charge under Section 34 and both the accused persons were

charged under Section 409 IPC alone. To bring home a charge

under Section 409, what is necessary to be proved is that

the accused is a public servant and in such capacity he was

entrusted with the property in question or with dominion

over it and that he committed criminal breach of trust in

respect of it. The necessary elements constituted in the

offence must be strictly proved by the prosecution. It is

true that prosecution need not prove the actual mode of

misappropriation and once entrustment of or dominion over

the property is established, then it would be for the

accused to explain as to how the property was dealt with.

In Exhibit PE, on the basis of which the Police registered

the case and started investigation it was specifically

mentioned that Jiwan Dass and Mittar Pal Yadav were

authorised to take 10,000 litres of light diesel oil from

Indian Oil Corporation and a bank draft amounting to

Rs.28,275.83 had been given to Jiwan Dass, which draft he

deposited. Thereafter they took delivery of 10,000 litres

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of light diesel oil but on actual measurement it was found

to be less by 4300 litres. On an inquiry from Indian Oil

Corporation, it was reported that delivery of 10,000 litres

of diesel had been given and in token thereof Mittar Pal

Yadav has put his signature. It was further stated in the

said letter that Jiwan Dass on 2.3.82 gave a writing that he

would make up the deficiency. On the basis of the aforesaid

letter and after completion of investigation, the Police

filed Challan and the Magistrate took cognizance and charge

that was framed on 26.3.84 was to the following effect:

"That on 26.2.82 in the area of Bahadurgarh, you being

a servant in the employment of Govt Heat Treatment Centre,

Bahadurgarh, as Superintendent and Store Keeper respectively

and in such capacity entrusted with a bank draft of

Rs.28,275.83 for purchase of 10,000 litres of high diesel

oil and you committed criminal breach of trust in respect of

4300 litres of high diesel oil worth Rs. 12,158.60 and

thereby committed an offence punishable under Section 409 of

the IPC which is within the cognizance of this court."

Thus the gravamen of the charge is commission of

criminal breach of trust in respect of 4300 litres of diesel

oil. That the bank draft in question was duly deposited

with the office of the Indian Oil Corporation and there is

no dispute over the same. The question that arises for

consideration, therefore, is whether the diesel oil which

was in-fact found to be less by 4300 litres can be said to

have been entrusted to Jiwan Dass or Jiwan Dass had any

dominion over the same. It has been elicited from the

evidence of PW-1, Senior Technical Officer at Bahadurgarh

that accused Mittar Pal Yadav was authorised by the

establishment to take delivery of oil from Shakurbasti Depot

of Indian Oil Corporation and his attested signatures were

in the office of the Indian Oil Corporation. The said

witness in further cross examination also stated:

"I have sent accused Mittar Pal Yadav because his

signatures were there and he could take delivery."

PW-4, the Depot Manager of the Indian Oil Corporation

stated in his evidence:

"I have seen the cash memo Exhibit PB, which bears my

signature which was given to Mittar Pal Yadav, who had

signed in my presence."

In view of the aforesaid positive evidence, both oral

and documentary, the conclusion is irresistible that

delivery of diesel oil had been given to accused Mittar Pal

Yadav, who in token thereof, had signed not only on the cash

memo but also on the register itself. In the absence of any

other material produced by the prosecution it is difficult

for us to hold that either there was any entrustment of the

diesel to accused Jiwan Dass or he had any dominion over the

same.

Mr. Ajay Siwach, the learned counsel appearing for

the State of Haryana however very strenuously argued that

Jiwan Dass being a senior officer and having been deputed

with the bank draft for the purpose of taking delivery of

the oil and the letter of authority being in favour of Jiwan

Dass, it must be held that the entrustment of diesel had

been made to Jiwan Dass or at least he had the dominion over

the same. Mere fact that Jiwan Dass had taken the bank

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draft and that an authorisation had been given in his favour

by his superior officers to take delivery of the diesel,

cannot be the basis for coming to a conclusion that in-fact

the diesel had been entrusted to said accused Jiwan Dass or

he had dominion over the same. When in point of fact it is

established beyond reasonable doubt that delivery had been

taken by accused Mittar Pal Yadav and in token of the same

he had signed the relevant papers and register, Jiwan Dass

being a senior officer may be responsible for dereliction of

his duty in not taking delivery of the diesel himself. But

on that score, it cannot be said that in-fact the

prosecution has been able to establish that diesel had been

entrusted to Jiwan Dass and there has been shortage of the

said diesel to the tune of 4300 litres. In our considered

opinion the gravamen of the charge being misappropriation of

4300 litres of diesel oil which was found to be in shortage

while measuring the diesel that had been brought and the

said diesel having been delivered to Mittar Pal Yadav, who

had signed the relevant documents in token thereof, the

entrustment to or dominion over the diesel by Jiwan Dass has

not been established and as such the prosecution has not

been able to establish the charge under Section 409 IPC

beyond reasonable doubt as against accused Jiwan Dass in

respect of the shortage of diesel to the tune of 4300

litres. It is no doubt true that Jiwan Dass appears to have

given in writing on 2.3.82 that he would be completing the

quantity of 10,000 litres of oil but that writing neither

can be held to be a confession or admission of the guilt on

the part of the accused Jiwan Dass, nor that can form the

basis of convicting the accused Jiwan Dass for an offence

under Section 409 IPC. In a prosecution for offence of

criminal breach of trust if there is absence of legal and

independent evidence with regard to the entrustment, then it

would be improper either to put a question with regard to

the entrustment to the accused and if put and an answer is

obtained, partially admitting entrustment, the same does not

establish the case of entrustment. In the aforesaid

premises and in view of our conclusion that the prosecution

has failed to establish entrustment of diesel to accused

Jiwan Dass, the conviction of Jiwan Dass under Section 409

IPC cannot be sustained and we, accordingly set aside the

conviction and sentence against the accused Jiwan Dass and

acquit him of the charge levelled against and Criminal

Appeal No. 990 of 1995 is accordingly allowed and his bail

bonds stand discharged.

So far as accused Mittar Pal Yadav is concerned, as

has been discussed earlier, there is conclusive oral and

documentary evidence that it is he, who took delivery of

10,000 litres of diesel from the Depot of Indian Oil

Corporation and the said diesel on actual measurement being

found to be in short, no explanation has been offered by him

except telling that he did so at the behest of the superior

officer Jiwan Dass. In view of his signature available on

several documents, indicating the fact that he took delivery

of 10,000 litres of diesel, the explanation offered by the

said accused Mittar Pal Yadav that he had signed being told

by Jiwan Dass cannot be accepted and, therefore, the

prosecution case about embezzlement of 4300 litres of diesel

has been established beyond reasonable doubt against accused

Mittar Pal Yadav. We, therefore, do not find any

justification in interfering with the conviction and

sentence passed against the accused Mittar Pal Yadav and

consequently, Criminal Appeal No. 991 of 1995 stands

dismissed. His bail bonds also stand cancelled and he must

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surrender to serve the balance period of sentence.