Criminal Appeal (SJ) No.116 of 1998 Against the judgment and order of conviction dated 03.03.1998 and order of sentence dated 04. 03. 1998, passed by Shri Abhijit Sinha, Special Judge, Vigilance (South Bihar, Patna) in Special Case No. 47 of 1989. Surya Narayan Tewary, son of Late Gobardhan Tewary, resident of Village- Janerwa, P.S. Gobindganj, District- East Champaran. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Ganesh Prasad Singh, Advocate. For the Vigilance : Mr. Rama Kant Sharma, Senior Advocate. PREESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the Vigilance. 2. The appellant has been convicted for offence under Section 409 of Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 300/- and in default to undergo rigorous imprisonment for two months and further convicted for offence under Section 201 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case is that Ramjash Singh, the then D.S.P., Vigilance had seized five records pertaining to cases under the Bihar Tenancy Act from the 2 Camp Court of Arjun Paswan and deposited them in Malkhana in connection with Vigilance P.S. Case No. 14/79. The investigation of the said case was taken up by the Inspector, Suraj Narain Tiwary, the appellant and said Suraj Narain Tiwary withdraw five case of B.T. Act bearing case no. 381, 382, 395, 396 and 848 under his signature during investigation. However, at the time of superannuation the said appellant Suraj Narain Tiwary made over charge of the investigation of said Vigilance P.S. Case No. 14/79 to the Inspector, Jai Kant Lal on 31.07.1985. Jai Kant Lal obtained sanction order and submitted charge sheet. During trial of the said case five aforesaid records were required to be exhibited, but were found missing and on query from Suraj Narain Tiwary with a letter of request to made over charge of five records, but in vain. However, the appellant Suraj Narain Tiwary had neither returned those records to the Malkhana nor handed over to Jai Kant Lal and had retained the same with a view to help accused Arjun Paswan and non-production of those records were likely to adverse effect on the prosecution case. 4. On complaint investigation proceeded and 3 charge sheet submitted for offence under Section 409 and 201 I.P.C. also under Section 5(1)(c) and 5 (2) of Prevention of Corruption Act which corresponding to Section 13 (1) (c) and 13 (2) of the Prevention of Corruption Act 1988. 5. During trial twelve witnesses were examined along with various documentary evidence. 6. The defence of the accused persons about their false implication at the instance of Jai Kant Lal and assertion of the fact that appellant has handed over the charge of Vigilance P.S. Case No. 14/79 along with case diary and record of the five cases and defence has also adduced witnesses in support of their contention. 7. The trial court took into consideration the Ext. 3 and 4 to hold that the appellant received the five records from Malkhana under receipt of signature on 20. 12. 1979 and never deposited the same. This reply that the same return to Sri Jai Kant Lal as not accepted in absence of any receipt for handing over the record either to Jai kant Lal or to Malkhana and convicted the appellant for offence under Section 409 I.P.C. 8. The learned Special Judge held that accused 4 has been charged under Section 409 I.P.C. To bring home the charge property is required to be entrusted. In the instant case five records were seized kept in Malkhana for safe custody. The appellant was entrusted with investigation and he being public servant withdraw the said records from Malkhana. Hence the entrustment has been established. The appellant did not hand over the five records either to Jai Kant Lal nor deposited the records in Malkhana. The appellant had bounden duty to hand over the records. Hence the appellant purportedly retained the same presumably to cause unfair advantage to the accused of Vigilance P.S. Case No. 14/79 and hence the convicted the appellant for offence under Sections 409 and 201 I.P.C. 9. Learned counsel for the appellant however contends that P.W. 3 in para 4 has stated about receipt of the document as well as evidence of P.W. 9 at para 5. However, P.W. 3 in para 4 has stated about receipt of five records by the appellant and has proved his endorsement as evidence of the receipt which has been marked as Ext. 4 and P.W. 9 denied that he did not remember that Senior D.P. had opined that Jai Kant Lal 5 is responsible for loss of records and hence contends that it creates a doubt. It has further been contended that for proving the criminal breach of trust not only entrustment but misappropriation of property is also required to be established. It has further been contended that appellant was retired in the year 1985 and this case has been lodged in the year 1989 and remained in jail for sometime and hence a lenient view may be taken. 10. The appellant by Exhibit. 3 and 4 received the record from Malkhana under his signature. This fact has not been denied. The defence of the appellant that he returned the file with the case diary of Vigilance Case No. 4/85. However, there is neither receipt of the handing over the said five documents to Jai Kant Lal nor return of the same to Malkhana nor there is endorsement about five records in the case diary of the said case which was handed over to Jai Kant Lal. Hence it can well be inferred that record was not returned back and remained with the appellant. However to constitute an offence of Criminal Breach of Trust along with entrustment there must be dishonest misappropriation by a person under whom confidence has been responded. 6 There must be misappropriation or conversion to ones own use or use in violation of legal direction and disposal of the property must be with dishonest intention. 11. However, it is pertinent to mention that, though, it has been established that appellant was entrusted with records as he has received the records from the Malkhana and was possessed. However there is no evidence that the appellant has established that he gave those records either to I.O. Jai Kant Lal or to return to Malkhana. Hence the entrustment is established. However, it is true that if loss of records are due to negligence without any motive or without dishonest intention to use the same otherwise dishonest intention then the appellant may not be liable for criminal offence under Section 409 I.P.C. However, the dishonest intention is the mental act of fraudulent misappropriation with demarcation of act of embezzlement which is severely wrong. 12. However, having regard to the facts and circumstance of the case, though, entrustment ahs been established and in the facts and circumstance where it has been established that document was misappropriated 7 with dishonest intention it depends upon mental act. However, if the case is of simple loss of records or matter may have been different when there is no apprehension about criminal offence to the benefit of some person. 13. However, having regard to the fact that the entrustment of five records has been established but the five records were missing which was seized during raid and hence was of document of material value and presumption may be drawn against dishonest intention in the fact and circumstance to attract Section 409 I.P.C., though, there is no clear evidence. Hence it can well be inferred that offence is made out. 14. However, having regard to the facts and circumstances, that missing of five records was noticed after four years retirement of the appellant. Jai Kant Lal also did not take cognizance of the fact of missing of records at the time of submitting of the charge sheet. Moreover, the appellant had retired in the year 1985 and no positive evidence has come about positive act of dishonest intention and further taking into consideration the age of the appellant as well as fact that appellant has 8 remained in jail for about a month during investigation as also from 06. 05. 1991 to 08. 05. 91. 15. Hence end of justice shall meet by sentencing the appellant for the period already undergone. Hence with this modification of sentence this appeal is dismissed. Patna High Court The 18th October, 2011. NAFR/m.p. ( Gopal Prasad, J.)