Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No. 818 of 2002 =========================================================== (1) Farjana Khanam (Wife) (2) Sarbar Alam (3) Talat Urjare (4) Md. Sajiad (5) Sahata Jabi (6) Md. Majid (7) Juhi Khatoon (8) Md. Danis (9) Md. Majhar Hussain All resident of Village- Sahpur, Baghauni, P.S. Pusa (Waini), District- Samastipur. .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s =========================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. =========================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date: 23-02-2012 Ahsanuddin Amanullah, J. Heard learned counsel for the petitioners and learned A.P.P. for the State. 2. The case was originally filed by the accused Md. Haseeb but during the pendency of this application he died leaving behind nine heirs who have been substituted in his place by order dated 5.3.2010. The said nine heirs are thus now the petitioners in the present case. 3. This revision application is directed against the appellate Judgment and order dated 12.07.2002 passed by the Vth Additional Sessions Judge, Samastipur in Criminal Appeal No. 113/94 by which the Judgment and order dated 27.08.1994 passed Patna High Court CR. REV. No.818 of 2002 dt.23-02-2012 2 / 5 2 by the Judicial Magistrate, Ist Class, Samastipur in G.R. Case No. 260/88, Tr. No. 370/94 convicting the original petitioner under [STATUTE] and sentencing him to undergo rigorous imprisonment for one year and fine of Rs. 2,500/- and in case of default further simple imprisonment for one month has been upheld. 4. Learned counsel for the petitioners submits that both the trial Court Judgment as well as the Appellate Court Judgment are erroneous in law as they have not considered the material aspect as well as the fact that the charge was not proved beyond any reasonable doubt so as to justify the conviction and sentence. The husband/father of the petitioners was made accused in Complaint Case No. 60/88 wherein it was alleged that the petitioner had been given Rs. 20,514/- for construction work by way of cash as well as kind and out of that, upon measurement, it was found that only work to the extent of Rs. 11,878/- had been done. Upon direction to get the work done or to return the money, when the same was not done F.I.R. was lodged. Learned counsel for the petitioner submits that the date of agreement for the construction is 19.01.1985 and the measurement was done on 26.04.1985. He thus submits that in a short gap of three months it cannot be expected that the entire construction work would be done. It is further submitted that the petitioner had made construction even subsequent to the date of inspection and had also requested the authorities to get measurement of the same done but it was never Patna High Court CR. REV. No.818 of 2002 dt.23-02-2012 3 / 5 3 done by them. It is further pointed out that during trial it has come that foodgrains were also given for construction work and received by the Mukhiya and he has admitted about the same and thus taking this into consideration the said amount ought to have been reduced from the amount which is quantified to have been given to the petitioner. Learned counsel submits that even the witnesses have only stated about the money being given to the petitioner and the work not having been done. He submits that in view of the categorical stand of the petitioner that later on further work was done and prayer that the same be measured, which was not done, there could not have been a conclusive proof of guilt against the petitioner that he embezzled any money, and thus the requirement of law in criminal cases that the guilt be proved beyond any reasonable doubt, has not been fulfilled. Learned counsel lastly submits that in any view of the matter, upon the death of the original petitioner, his wife has deposited Rs. 8635/- which was the amount alleged to have been defalcated by the petitioner before the block cashier on 04.12.2006 and pursuant to that a ‘no dues’ certificate has also been issued by the Headmaster, Secondary School, Vikraypur, in the District of Samastipur. A copy of the receipt of the deposition of money as well as the ‘no dues’ certificate has been annexed as Annexure-1 and 2 respectively in the supplementary affidavit filed on behalf of the petitioners today. The same is being kept on record. 5. Learned counsel has relied on the decision Patna High Court CR. REV. No.818 of 2002 dt.23-02-2012 4 / 5 4 rendered in the case of Kailash Kumar Sanwatia Vs. State of Bihar reported in 2003 (4) PLJR (SC)172, the relevant being at paragraphs no. 9 and 10. The said decision has been relied upon for the proposition that in matters relating to criminal breach of trust two things have to be seen conjointly (1) entrustment, and (2) whether the accused was actuated by dishonest intention or not and misappropriated it or converted it to his own use to the detriment of the person who entrusted it. 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 [STATUTE] , unless misappropriation or conversion to personal use or disposal of property is established. 6. Relying on the same he submits that in the present case there is not even a whisper that any money was either misappropriated by the original petitioner or was acquired to his personal use and even the fact of disposal of property is neither alleged nor established. 7. In the circumstances, learned counsel submits that both the trial Court Judgment as well as the Appellate Court Judgment are erroneous on facts as well as in law and cannot be sustained. 8. Learned A.P.P. for the State has gone through the records of the case and has not controverted th

Applicable IPC Section: 405

Statute Text:
Section 405 of the Indian Penal Code. None. 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".