1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.248/1999 Sunil Uddhav Dhotre, Age-44 yrs. Occupation-Private Service,Residing at Sheikh Chawl, Malwadi Post Office,Warje, Pune-29 Applicant Vs. The State of Maharashtra Respondent ( At the instance of General Branch ,Crime Branch, C.I.D.vide C.R.No.29/91 ) Mr.P.B.Patil for the applicant Mr.J.P.Kharge,APP for State CORAM: MRS.MRIDULA BHATKAR,J. DATE : 17th SEPTEMBER,2009 J U D G M E N T . This Revision Application is filed by the applicant/accused against the judgment and order dated 30/7/1999 passed by the learned Sessions Judge, Greater Bombay thereby confirming the judgment of conviction of the Additional Chief Metropolitan Magistrate convicting the accused for the offence punishable under section 406 sentencing him to suffer R.I.for three months ,fine of Rs.15,000/- i/d to suffer S.I.for five months. The applicant/ accused was the 2 share broker and the complainant and other two witnesses have handed over their shares for sale and one witness has given the amount of Rs.18,170/- to purchase the shares . However, these shares were not either returned or the amount of sale was also not given to the respective witnesses. Hence the complaint was lodged and the prosecution was launched against the applicant/accused. 2] The learned counsel appearing for the applicant/accused has challenged the order on the ground that the ingredients of the offence punishable under section 406 of the Indian Penal Code i.e.criminal misappropriation of the property are not proved by the prosecution and the learned Judges J.M.F.C.and the Sessions Judge have committed an error in holding that the offence of misappropriation has taken place. He has submitted that the prosecution could not prove the conversion of the property or shares were not found in possession of the applicant/accused. It was argued that the admission on the part of the investigating officer and the defence adopted by the accused is that when he was dispossessed by the landlord his all belongings 3 were lying outside including the shares of this witness and they were misplaced. 3] In support of his submissions he has relied on Sardarsingh Vs.State of Haryana ,A.I.R.1977 ,S.C..1766 and L.Dhanya Naik Vs.State of Karnataka ,1977 ,Cr.L.J. 654 in which it is held that mere failure or omission to return the property is not sufficient to constitute the offence under section 409 of the Indian Penal Code. 4] The point involved in the matter is whether in the absence of conversion or possession by the accused whether the offence punishable u/s 406 can be proved. Section 406 of the Indian Penal Code reads as follows. Section 406 of the Indian Penal Code - Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years , or with fine, or with both. 5] The accused was charged for the offence of criminal breach of trust under section 406 of the Indian Penal Code. Section 406 being the penal section definition of section 405 is to be seen. Which reads as follows. 4 Section 405 of the Indian Penal Code - 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 “. 6] Dishonesty is defined in section 24 of the Indian Penal Code as follows. Section 24 of the Indian Penal Code. 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”. 7] Thus, Section 405 of the Indian Penal Code does not always demand that there should be conversion for his own use of the property but if at all there is dishonest misappropriation which is in violation of any legal contract expressed or implied then it may amount to criminal breach of trust. 8] No doubt mere negligence cannot be lebelled as dishonest misappropriation.The act of dishonest 5 misappropriation is always can be gatherred from the conduct of the accused as he is the one to whom the property is entrusted and there is a legal contract or agreement based on mutual trust. In the present case the shares were handed over to the complainant. On the point of handing over of the shares to the complainant for sale and the loss suffered by the witnesses and the complainant, and also on the point of defence of the accused the evidence is properly discussed by the Sessions Court as well as the J.M.F.C. Hence no interference is required in the order of conviction of the learned Sessions Judge. 9] On the point of quantum of sentence the order passed by the Sessions Court needs to be modified . The Sessions Court was dealing with the appeal against conviction. No other appeal by the State was filed for the enhancement of the sentence. The ‘sentence’ includes imprisonment and also fine. The powers of the appellate Court are incorporated under section 386(b) of the Code of Criminal Procedure which reads as follows. Section 386 of the Criminal Procedure Code 6 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] ......... b] in an appeal from a conviction - i] reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial , or ii] alter the finding, maintaining the sentence,or iii] with or without altering the finding, alter the nature or the extent , or the nature and extent , of the sentence, but not so as to enhance the same ; ( emphasize placed ) 10] Thus, the appellate Court can alter the nature of extent and of finding or sentence but not so as to enhance the same. 11] On the backdrop of these legal provisions the order passed by the Sessions Court is illegal. The learned Sessions Judge has not erred in reducing the sentence from R.I.for three months to one month S.I. , however, there is legal mistake when the fine amount of Rs.15,000/- was enhanced up to Rs.30,000/-.In absence 7 of Criminal Revision for the enhancement of the sentence by the State or the complainant the amount of fine cannot be enhanced as there is specific bar under section 386 of the Criminal Procedure Code. Therefore, it needs to be rectified as follows. 12] The conviction of one month simple imprisonment and fine of Rs.15,000/-is confirmed . 13] Out of fine amount of Rs.15,000/- Rs.5,000/- is to be distributed among the complainant and two witnesses. (Mrs.Mridula Bhatkar,J.)