IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 165 of 2003 Judgment Reserved on 10th August, 2010 Date of Decision: 21st October, 2010 __________________________________________________________ Ashwani Kumar ….Petitioner. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. ___________________________________________________________ For the Petitioner: Mr. Ajay Sharma, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is aggrieved by the judgment of learned Sessions Judge, Una affirming the judgment and sentence imposed upon the petitioner by the learned Additional Chief Judicial Magistrate, Court No. II, Una sentencing him to undergo simple imprisonment for two months and to pay a fine of Rs. 2,000/- for offence under Section 409 IPC. 2. Brief facts necessary for consideration are that the petitioner was charged for offences under Sections 408, 409 and 420 of the Indian Penal Code on the allegations that when the audit of account of Licensing Branch of Motor Licensing Authority was undertaken in the year 1987, certain discrepancies were found in the accounts. A sum of Rs. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 5,795/- was alleged to have been misappropriated by the petitioner herein who was at the relevant time working in the Himachal Road Transport Corporatin (HRTC). The prosecution was based on the note of the Audit Party that challans have not been entered in the register of Motor Licensing Authority. Accordingly, a complaint Ext.PW1/A was filed with the Police Station at Una on the basis of which FIR Ext.PW17/A was registered. The basis of the complaint was the audit report Ext.PW4/A. 3. During investigation, according to the prosecution, the case as alleged for consideration of the Courts below was that the petitioner herein was authorized by the HRTC Una to deposit taxes of the vehicles in the State Bank of Patiala. For this, the petitioner used to apply for advance payment from the department of HRTC, clear Challan Form No. 32-A from the Treasury and thereafter deposit the amount in the State Bank of Patiala. The Motor Licensing Authority handed over the challan forms 32-A Ext.P1 to Ext.P21 and Ext.P22 to Ext.P42 to the police vide memo Ext.PW2/A. The District Treasury was also having one copy of this form. These were handed over to the police and exhibited as Ext.P43 to Ext.P67. the applications made by the petitioner herein claiming advance payment are Ext.PW12/B to Ext.PW12/Z and Ext.PW12/Z-1 to Ext.PW12/Z-9 and the corresponding entries and ledger Ext.PW12/Z-10 to Ext.PW12/Z/11. To tally this information, Branch Manager of the State Bank of Patiala also supplied information vide Ext.PW6/A to ExtPW6/D. 4. 18 witnesses were examined by the prosecution in support of its case. The learned trial Court holds that the petitioner remained as Booking Clerk with HRTC from 29.1.1983 to 31.8.1986. Pawan Kumar (PW4) states that accused was given duties, as per order Ext.PW4/A, which was affirmed by PW10 Regional Manager, HRTC, Una. This part is admitted by the petitioner in his statement under Section 313 Cr.P.C. The learned trial Court has drawn a table at page 11 of the judgment, giving the details of money allegedly/purportedly 3 misappropriated by the petitioner and holds that he has committed criminal breach of trust, by misappropriating a sum of Rs. 2930/- and accordingly sentenced him under Section 409 IPC. 4. In appeal, two points were urged. The first point was that the HRTC has a set procedure of making the deposit etc. for renewal and this was followed meticulously by the petitioner and the HRTC. The second point urged was that the complaint was filed by the Motor Licensing Authority and is not legally maintainable because at that time the petitioner was not an employee of the Licensing Authority nor has he committed any breach of trust. The learned Appellate Court, after relying upon the statement of PW4 Prem Lal Bhangra, Senior Audit Officer, who had conducted the audit in the office of Motor Licensing Authority and had also visited the Treasury Office to verify the authenticity of challans etc., held that the petitioner had infact mis-appropriated the amount which fact was duly proved. The appeal was, therefore, dismissed. 5. I am at pains to find out any reasoning of the learned Appellate Court. What I have seen in the present case is that because of the cumbersome nature of evidence on record, little attention has been paid by the Courts below to the fact as to whether the amounts as detailed in table of the judgment of the learned trial Court, have infact been misappropriated or not. The learned Appellate Court has also lost sight of this fact and has held that the petitioner is guilty of the offence as charged. In these circumstances, I cannot accept such generalization being made by the Courts below. 6. Section 409 of the IPC requires: “409. Criminal breach of trust by public servant, or by banker, merchant or agent-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits 4 criminal breach of trust in respect of that property, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extent to ten years, and, shall also be liable to fine.” 7. This position has been long settled and does not require any reiteration. (See Jiwan Dass Vs. State of Haryana Vs. State of Haryana (1999) 2 SCC 530) The Supreme Court in Mustafikhan Vs. State of Maharashtra (2007) 1 SCC 623 not only reiterates these ingredients but also went in to hold: “12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to prove been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment. (at p. 626) Learned counsel also relies upon the decision in Inderjit Sigh Vs. State of Punjab 1995 (3) SCC 289 to urge that the case of misappropriation has not been established and in these circumstances,no conviction can follow. 8. I am not going into the respective contentions of the parties. Needless to say that this fact had to be established with certainty as to what amounts were purportedly misappropriated by the petitioner which in this case could be done by reference to documents on record. I find that this exercise has been jumbled up by the trial Court and the 5 learned Appellate Court has given a complete good bye. Primafacie, from the reading of evidence, what I find is that no attempt has been made to arrive at the findings as to how the documents are linked with the petitioner to sustain the findings of misappropriation. Charge under Section 409 IPC is a serious matter to which the learned Appellate Court should have applied its mind with seriousness and earnestness. 9. In these circumstances, I am left with no option except to send the case for re-trial to the learned trial Magistrate who shall proceed again with this case in accordance with law. It is with reluctance that I have to pass this order considering the fact that the genesis of the offence was somewhere in the year 1985-86 and it is after a period of more than 14 years when this Court has to resort to passing this order. I find that the learned Appellate Court has not reconsidered the entire evidence and has not paid any attention to the mandate to be followed by the Appellate Court. In C. Magesh and others vs. State of Kanrataka (2010) 5 SCC 645 the Supreme Court holds: “36. In an appeal preferred under Section 378 Cr.PC, no doubt, it is true that the High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should always be kept in mind, namely, (i) the presumption of innocence of the accused should be kept in mind; (ii) if two view of the matter are possible view favourable to the accused should be taken; (iii) the appellate court should take into account the fact that the trial Judge had the advantage of looking at the demeanour of the witness; and (iv) the accused is entitled to the benefit of doubt. But the doubt should be reasonable that is the doubt which a rational thinking man with reasonable honesty and 6 consciously entertained, more so, when the larger question with regard to treating Ext.P-29 and Ext.P-30 as dying declarations itself had become questionable.” (at p.653-654) These principles have not been adhered to and in these circumstances, I find that the learned Appellate Court has not followed the mandate of law for considering and re-appreciating the evidence. In the same judgment, the Court set out in detail the principles to be applied for assessing the evidence. The Court holds that in criminal trial evidence requires a careful assessment and must be evaluated for its credibility since the evidence aspect of criminal jurisprudence is that no man is guilty unless proven so. This revision petition is accordingly disposed of with a direction that the case shall be re-tried by the learned trial Magistrate totally uninfluenced by the two judgments on record and it shall give its independent findings. 11. Parties to appear before the learned trial Court on 2nd December, 2010. It is further directed that the learned trial Court shall complete the entire case on or before 31st March, 2011. (Dev Darshan Sud) Judge October 21st, 2010(ms)