THE HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.2503 of 2004 JUDGMENT: Appellant is the first accused in C.C.No.4 of 2001 on the file of the Court of the Special Judge for CBI cases, Visakhapatnam (trial court). Initially CBI chargesheeted two persons i.e. the appellant and A-2 Sait Babulal Milapchand for the offences punishable under Sections 120-B r/w Section 409 IPC and Section 13(1)(c) and (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short Act), on the allegation that the appellant as a public servant seized 370 gms of Platinum wire mesh worth Rs.3,70,000/- and also cash of Rs.1,000/- from the second accused and both of them acting in concert misappropriated the above two properties for their pecuniary advantage. 2. Subsequently on an application moved by the second accused he was discharged by the trial court by its order dated 10.09.2011 passed in Crl.M.P.No.183 of 2001 and that order became final. Thereafter the appellant was put on trial on the aforesaid three charges excluding the offence under Section 120-B IPC. He pleaded not guilty. 3. The trial court after considering the evidence let in by the prosecution and also the plea of the appellant, has by its judgment dated 08.11.2004 upheld the prosecution case and convicted the appellant of all the three charges. Regarding the sentences the trial court after questioning the appellant regarding the same and considering his plea, awarded a sentence of two years simple imprisonment for each of the above three charges besides imposing a fine of Rs.2,000/- with default clause prison sentences. This appeal is filed questioning the said judgment of the trial court. 4. The prosecution case which led to the above three charges against the appellant is this. During the relevant period i.e. from 09.04.1992 to 31.05.1995 the appellant worked as Superintendent (Preventive & Intelligence), Customs & Central Excise, Guntur and was admittedly a public servant within the meaning of the Act and he had in that capacity power to conduct raids also to prevent customs offences. 5. The further version of the prosecution is in discharge of his duties and exercise of his powers the appellant along with certain other officials of the excise department has on 17.03.1993 conducted a raid on the premises of A-2 Sait Babulal Milapchand at Tadepalligudem and seized a platinum wire mesh weighing 370 gms and also cash of Rs.1,000/- from him under the cover of a seizure panchanama and took custody of the said property and cash and brought the same to his office at Guntur and kept them in his custody. It must be mentioned here that one Excise official was also employed as a decoy to approach A-2 for the purpose of buying or eliciting information from A-2 about platinum wire mesh and thereafter the above properties were seized by the appellant from A-2. Those details are not necessary. 6. The plea of the prosecution is that subsequently the appellant did not deposit the aforesaid platinum wire mesh or cash with the concerned excise authorities and misappropriated them. The value of the aforesaid platinum wire mesh was given by A-2 Sait Babulal Milapchand at about Rs.3,70,000/- and on the date of the raid itself the appellant also got it tested by a Chemistry lecturer at Eluru and he gave the opinion that it is an impure platinum but the prosecution says its value is more than Rs.3 lakhs despite the fact that it is an impure platinum and this is not disputed. Thereafter on 16.08.1994 A-2 Sait Babulal Milapchand sent a complaint to the vigilance commissioner, customs and Central Excise, New Delhi, alleging that Sri Khan Saheb Shaik, Central Excise, Audit Party, Vijayawada, unauthorisedly took an amount of Rs.1,000/- in the last week of February 1996 from his pocket. This Khan Saheb Shaik had been examined by the prosecution as P.W.4 and he is also said to have assisted the appellant in conducting the raid. This P.W.4 gave an explanation and ultimately the appellant was found to be the erring official. 7. It is stated by the prosecution that thereafter the matter was enquired into and the superiors of the appellant did not find the file relating to the seizure of the aforesaid platinum wire mesh and also the cash and several reminders were also issued to the appellant. It must be noted here that after 31.05.1995 the appellant left the post while holding which he conducted the above raid on 17.03.1993 and was transferred to different ports. Thereafter, it is stated by the prosecution, a case was registered against the appellant and the concerned investigating officer along with mediators searched the house of the appellant on 12.10.1999 at Guntur and along with other documents the CBI police seized the present file called as “TP Gudem- Platinum Seizure File” from his house. 8. The version of the prosecution is that as per the Customs Act and the Rules and the procedure the appellant should have recorded the seizure of the above platinum wire mesh and the sum of Rs.1,000/- in the 335-J Register called as office register and also in the seized goods register maintained in the Customs office at Guntur and should have issued show cause notice to the concerned person from whom it is seized and he should have deposited the above properties with the official in-charge of the seized and confiscated goods at the Customs and Central Excise Commissionerate at Guntur. It is also stated that he should have preserved the above properties as per the office procedure in the lockers of the banks after duly entering the above properties in the valuables register maintained in the Commissionerate. The prosecution allegation is that the appellant has not followed the above procedure and did not take steps to dispose of the case relating to seizure in accordance with law and thus committed criminal breach of trust and misappropriated the above properties. 9. The prosecution examined P.Ws.3 to 7 excise officials of various grades and P.Ws.1 and 2 mediators to prove the raid conducted by the appellant on 17.03.1993 and seizing the platinum wire mesh and the cash of Rs.1000/- under the cover of mediatornama and also marked the relevant registers of the concerned offence. It then examined P.W.9 and P.Ws.11 to 16 officials and other witnesses including CBI officials who spoke about the registration of the case and the search of the appellant’s house and recovery of the file relating to the platinum wire mesh. The evidence brought on record supported the charges and nothing could be elicited from witnesses to demolish the prosecution case. The trial court discussed the entire evidence giving the details and came to the conclusion that the appellant in his capacity as a Superintendent of Central Excise and as a public servant acquired dominion over or got custody of the platinum wire mesh and cash of Rs.1,000/- which he is said to have seized in the raid on 17.03.1993 in discharge of his duties as pleaded by the prosecution and held that the prosecution has proved its case. Then holding that since the appellant has failed to account for the above properties in accordance with the procedure pleaded by the prosecution the trial court held him guilty of all the three charges as the properties were valuables and missing and convicted and sentenced him on the said charges as aforesaid. 10. The plea of the appellant through out was that though he got custody of the above properties in the raid conducted by him on 17.03.1993 he was not guilty of the charges of criminal breach of trust or misappropriation. The point is whether the charges can be said to have been proved beyond doubt by the prosecution. 11. Heard Sri C.Praveen Kumar the learned counsel appearing for the appellant and also Sri P.Kesava Rao the learned Standing Counsel -cum- Special Public Prosecutor appearing for CBI. 12. The entire prosecution case has been set out. The trial court in para-24 of its judgment extracted the relevant portion of the defence of the appellant which he took in his written statement filed before the trial court and it reads as follows:- “Platinum is neither a restricted nor a notified item. Platinum impure (Primary) form is a canalized item which can be imported through agencies like M.M.Ds. Since the item seized is an impure platinum in alloy form, the onus of illicit import is on the department. During investigation, no such evidence could be collected and hence further course of action was not taken in the case. During the material period, I was incharge of seized goods and hence I kept the item in my room. Subsequently, it was missing. Due to heavy work load, I could not pursue further in the case. I do not have any malafide intention in misappropriating or not taking any action. The file which was seized from my residence was mixed up with my personal files and documents and I never concealed the said file in my residence. Had I had any malafide intention, I would have tampered with the documents also, being in charge of the seized goods. Even though, I came to know that the department referred the case to the C.B.I. I did not tamper with the documents. If really I had any malafide intention, after coming to know about the C.B.I. investigation, I would have easily tampered with the documents. I never did any such thing. The amount of Rs.1000/- was advanced by me by pooling from my staff and subsequently the same was returned to them.” 13. The above defence statement of the appellant would show that he clearly admitted that he got custody of the platinum wire mesh and also the cash of Rs.1000/- but he took the plea that he kept them in his office and they were missing and because of his workload and other pre-occupation he could not pursue the matter and find out what happened to them. Then regarding the file relating to the platinum wire mesh seizure he pleaded that it was mixed up with his personal files. He also added that he had no guilty intention and did not misappropriate the platinum wire and if he had such an intention he would have destroyed that file. This last defence is a very untenable one for the simple reason even if that file had not been traced he would still be accountable for the properties in question as other evidence shows that he got custody of the same and failed to account for the same in his office records as required by his duties and law. 14. Thus on evidence and the above defence statement of the appellant it follows that the conclusion of the trial court in upholding the prosecution case that appellant got custody of properties and failed to account for the same is right. In other words it follows that the appellant himself in his capacity as public servant acquired dominion over the property in discharge of his official duty and got custody of the same as a public servant as contemplated under Section 409 IPC. 15. The learned counsel for the appellant pointed out that the appellant due to a mistake on his part did not take care to find out as to what happened to the properties in question and therefore he cannot be held guilty of misappropriation. He also urged that the prosecution has failed to find out how he has misappropriated the properties in question and therefore that is also a ground to reject the charges against him. He also pointed out that Exs.P.12 to P.16 reminder letters and a D.O. letter addressed by P.W.6 Seetharamaiah a successor in office of the appellant do not pertain to the present platinum wire mesh and cash of Rs.1000/- and therefore this is also a plus point for the appellant. 16. It is true that the said reminders do not pertain to the present properties in question but they pertain to other properties which were also not accounted for by the appellant which shows that appellant is not in the habit of accounting for the properties of which he had custody. Even otherwise even if there were no reminders from the successors-in-office of the appellant, it was the duty of the appellant as a public servant to account for the properties seized by him and hence the above contention raised on behalf of the appellant cannot be accepted. Another contention raised by the appellant’s counsel was that the platinum wire mesh is not a restricted item or notified item and that it can be imported also. May be it is an item which can be imported and even assuming for a moment that the appellant could not have taken any further action in accordance with law against the person from whom it was seized still it was his duty to account for it in accordance with law and as per the office procedure and therefore having failed to account for it he cannot seek exoneration from the charges on the above contention. 17. It may be noted that once the prosecution has proved that a public servant had acquired dominion or custody over property belonging to the Government or a third party seized by him in the course of discharge of his duties, it is for that public servant to explain what happened to that property and how he has dealt with it if he has failed to account for it as required by his duties in a case like this. Here Section 106 of the Evidence Act comes into play. It says that a fact which is within the personal knowledge of a person has to be proved by him. In the present case the appellant to repeat admittedly got custody of the properties in question and therefore it is his duty to explain what happened to them or how he dealt with them. The platinum wire mesh is said to be worth more than Rs.3 lakhs and the cash is of Rs.1000/- and therefore it cannot be said that they are not valuables and on the other hand it can be said that they are properties of considerable value even going by the year 1993. 18. The explanation of the appellant is that he kept the above properties in his office and they were missing. This explanation having regard to the value of the properties cannot be accepted. It may be true that some times a public servant who acquires custody of valuable properties which he is liable to account for may be stolen by some body or they may be missing. In such a case it is the duty of such a public servant to immediately report the matter to police and also his superiors about the loss of property in the above situation so that the police may take necessary action for recovering the properties. The appellant did not adopt the above course. He also did not show by convincing evidence from his side or elicit anything from the prosecution witnesses to demonstrate that he took a reasonable care for protection of properties as a prudent man would take. Added to this the file relating to the seizure of the platinum wire mesh was found in his residence whereas he ought to have kept it in the office. This conduct of the appellant also shows that he did not act with bonafides. 19. It is true that the seizure of platinum was made in March 1993 and the case was registered in 1999 but this delay occurred as the appellant was given sufficient opportunity as is disclosed by the evidence. This apart there is no limitation prescribed for launching prosecution for the above offences. It is also true that the prosecution was also not in a position to explain how the appellant has dealt with the properties in question. Here it should be noted that in Jiwan Dass v. State of Haryana[1] the Supreme Court has laid down that in a charge under Section 409 IPC the prosecution need not prove the actual mode of misappropriation and once entrustment or dominion over the property is established, then it would be for the accused to explain as to how the property was dealt with. It was held that if the accused fails to explain or account for the property satisfactorily a conviction under Section 409 IPC should follow. This principle in my opinion applies on all fours to the case of the appellant and since he failed to explain and account for the platinum wire mesh which is of the value of more than Rs.3 lakhs it follows that the charge under Section 409 IPC brought by the prosecution and upheld by the trial court has to be sustained. 20. So far as the offences under Section 13(1)(c) r/w Section 13(2) of the Act and Section 13(1)(d)(ii) r/w Section 13(2) of the Act, they also deal with misappropriation of property by a public servant of which he gets custody and they are similar in my opinion to the ingredients of the offence under Section 409 IPC and the above principle applies to these charges also. That is why the trial court has framed simultaneously charges for the said offences also along with the offence under Section 409 IPC and convicted the appellant for the said offences also and there is no illegality or irregularity in the same. 21. Accordingly, for the aforesaid reasons, it follows that the trial court judgment regarding convictions for all the three charges has to be upheld and therefore this appeal to that extent has to fail totally. 22. Coming to sentences the learned counsel for the appellant pointed out that the appellant was aged 48 years when the case was filed in the trial court i.e. in 2001 and that he is now nearing 60 years and he faced criminal proceedings for more than 16 years and therefore a lenient view may be taken regarding sentences. The trial court imposed a substantive sentence of two years simple imprisonment for each of the three charges besides fine and directed them to run concurrently. Having regard to the fact that the file relating to the seizure of the platinum wire mesh was found in the residence of the appellant and also the value of the said property, it follows that this is not a fit case for showing leniency further as the trial court has already shown leniency in awarding two years simple imprisonment for each of the charges directing them to run concurrently. This appeal is therefore dismissed confirming the trial court judgment in all respects. As the appellant is stated to be on bail he shall surrender before the trial court within 15 days from today to serve out the sentences failing which the trial court shall take necessary steps to commit the appellant to prison for serving out the sentences. ______________________ N.RAVI SHANKAR, J 18th November 2011 CVRK [1] AIR 1999 SC 1301