1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APLICATION NO.52 OF 2010 Mr. Sebastiao Palha, Son of Mr. Jose Palha Major in age, Resident of H.No.809, Malvara, Agassaim (Pillar), Ilhas, Goa. …. Petitioner V/s S T A T E Through Public Prosecutor …. Respondent Mr. Arun Bras De Sa, Advocate for the Petitioner. Mr. C.A. Ferreira, Public Prosecutor for the Respondent. CORAM : N.A. BRITTO, J. DATE : 23rd DECEMBER, 2010 JUDGMENT : Heard Shri Arun Bras De Sa, the learned Counsel on behalf of the petitioner and Shri C.A. Ferreira, the learned Public Prosecutor. 2. Admit. By consent, heard forthwith. 3. This revision petition is filed by the petitioner against judgment dated 8/07/2010 of the learned Sessions Judge, Margao dismissing the appeal filed by him against judgment dated 2 11/08/2009 of the learned JMFC by which the petitioner has been convicted and sentenced under Section 409 IPC to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for one month. 4. The petitioner was a godown keeper of the department of civil supplies of two godowns situated at Cortalim, one meant for Salcete Taluka and the other for Mormugao Taluka. On 25/10/2002, Shri N.B. Narvekar, the Director of Civil Supplies who was later on examined as PW1 took a surprise inspection of the said godown at about 11.45 a.m. He was accompanied by one Dilip Dongrekar, Assistant Accounts Officer, Ms. Jennifer, Accountant and Prakash Naik, LDC. At the time of inspection, he found that the accused was present in one of the godowns which are attached to one another. He found that in the godown meant for Salcete Taluka, 41 bags of rice and 124 bags of wheat were missing and in the godown meant for the Mormugao Taluka 137 bags of rice and 126 bags of wheat were missing. He issued two memoranda to the accused for the missing of the said bags. Copies of the same were produced at Exhibit 17. The accused replied by reply dated 7/11/2002 which is at Exhibit 18. 3 5. On 29/10/2002, he asked Shri Ramesh Hinde and Shri Rajaram Kavlekar to do physical inspection. Shri Ramesh Hinde and Shri Rajaram Kavlekar were Civil Supply Inspectors of the same department. Shri Ramesh Hinde was stationed in the Mamlatdar's office at Mormugao. Shri Kavlekar was stationed at Margao. These witnesses were subsequently examined as PW2 and PW4. The physical verification report of the godown meant for Mormugao Taluka was signed by Naresh Phadte, the said Shri Hinde (PW2), Shri Dilip Gawde and the accused himself, while the physical verification report of the godown meant for Salcete Taluka was also signed by Naresh Phadte, Shri R.S. Kavlekar (PW4), the said Dilip Gawde and the accused himself. As per these verification reports, there was shortage of 130 bags of rice and 103 bags of wheat in the godown meant for Mormugao Taluka and 41 bags of rice and 123 bags of wheat in the godown meant for Salcete Taluka. 6. Complaint came to be filed by the said Director on 6/03/2003 and the case was subsequently investigated by PW9 PI Shri Mohan Naik. Charge sheet was filed against the accused thereafter with the allegation that between 27/03/2002 and 4 25/10/2002 while the accused was working as a godown keeper of the godown meant for the said two Talukas situated at Cortalim, he being a public servant, committed criminal breach of trust in respect of the property i.e. APL rice weighing 3234.500 kgs worth Rs.37,138.53, APL wheat weighing 6,000 kgs worth Rs.55,981.20 and APL rice weighing 12,589.550 kgs worth Rs.1,44,553.21 and APL wheat weighing 6130.055 kgs worth Rs.51,999.32, which was entrusted to him. 7. The accused pleaded not guilty and it is the case of the accused, in the statement recorded under Section 313 of the Criminal Procedure Code, that he was having the charge of the two godowns and in between them there was a gap of about 50 metres. At the time of arrival of the stock he had to keep watch on both the said godowns as well as the fair price shop. At that time it is possible that the labourers who are weighing the commodities might have in connivance with the fair price shops owners gave them extra bags which led to the shortage of the food grains. In other words, the accused did admit that there was a shortage. 8. Both the Courts below after going through the evidence produced by the prosecution, particularly, the aforesaid three 5 witnesses, have come to the conclusion that the accused misappropriated both rice and wheat. 9. Shri Arun Bras De Sa, the learned Counsel appearing on behalf of the petitioner/accused referring to Section 405 IPC submits that the prosecution was required to prove dishonest intention on the part of the accused and mere negligence on his part would not be sufficient to complete an offence under Section 405/409 IPC. Learned Counsel further points out to the discrepancy in the shortage found by PW1 Shri N.B. Narvekar and PW2 Shri Hinde as well as PW4 Shri Kavlekar and submits that the accused could not be convicted on account of the said discrepancy. Learned Counsel further submits that it is an admitted position that the duplicate key of the godown was maintained by the Director and it is quite possible that the bags of rice and wheat might have been removed by using the duplicate key. Learned Counsel further submits that there was a watchman as well as labourers, who were required to look after the said bags of rice and wheat and it is quite possible that they might have taken the bags of rice and wheat. Learned Counsel then submits that the petitioner/ accused at the most might be civilly liable but the prosecution had failed to prove that the petitioner had dishonestly misappropriated 6 or converted to his own use the bags of rice and wheat entrusted to him. 10. Shri Ferreira, the learned Public Prosecutor, on the other hand, submits that there are concurrent findings of fact given by the Courts below and, therefore, there is no scope for interference by this Court. Learned Counsel further submits that the shortages found were found in the presence of the accused either when the Director inspected the godown or for that matter verification was done by the said two inspectors namely PW2 and PW4. Learned Public Prosecutor submits that it was the burden of the accused to have explained the shortages which the accused has failed to explain. Learned Public Prosecutor submits that in fact leniency has been shown by the learned JMFC in imposing a lesser sentence. 11. The submissions made by the learned Counsel are off the record. The shortage is admitted by the accused. The explanations given are many. I have already adverted to the statement of the accused recorded under Section 313 of the Criminal Procedure Code wherein the accused stated that the laborers who weigh the said commodities might have in connivance with the fair price 7 owners given them extra bags which have led to the shortage of the food grains. The accused in his reply Exhibit 18 to the memos issued to him had tried to blame the pigeons, the mice and the mistakes which might have been made by the laborers in weightment. He had also tried to explain that sometimes food grains reached late in the evening and were received without weightment and due to that also there might have been shortages. He had stated that he was shocked to know that there was such a huge shortage but had admitted that there was no escape and he was bound to make good the said shortages and undertook to pay the costs of the shortages by borrowing money from his relatives as well as from his well wishers as it was difficult to him to meet the costs of the said shortages in view of his earnings. 12. The learned JMFC concluded that all the prosecution witnesses from PW1 to PW8 and PW10, the handwriting expert, convincingly and consistently corroborated and supported each others' statements, each of them pointing out a finger to the accused only thereby leaving no room of benefit of doubt which the accused can avail of. The learned JMFC also observed that only because no charge sheet against the said two civil supplies inspectors (PW2 and PW4) was filed, did not mean that the 8 accused was innocent or was falsely charge sheeted when the bundle of evidence points out to guilt of the accused, being the sole person who was responsible to account for the food grains supplied to both the said godowns. 13. The learned Sessions Judge referring to Exhibit 18 observed that the accused after admitting the shortages in the quantity of the commodities had also admitted that there was no escape for him and was bound to make good the said shortages and undertook to pay the costs of the shortages and the evidence on record clearly proved that the accused had committed criminal breach of trust in respect of the said food grains and, thereby, caused loss to the Government. 14. It is not the case of the petitioner/accused at any time the he had brought to the notice of the Government or taken adequate steps to ensure that the food grains were not eaten by pigeons or mice. The accused was in charge of the godown and it was his duty to have ensured that the commodities stored therein were not eaten by pigeons or mice. It was his responsibility to ensure that the bags were released as per requisition orders. So also to count and take stock. The explanations given to explain the shortages are 9 nothing but lame excuses which no sensible person can accept. The accused was in charge of both the godowns and therefore was bound to account for what was received therein and stored before the same was supplied to fair price shops at the orders of the civil supplies inspectors. There have been shortages in the number of bags of rice as well as of wheat. Their numbers may only differ. Shortages have been admitted by the accused but have not been sufficiently explained and therefore the only irresistible conclusion is that it is the accused who misappropriated the said missing bags of rice and wheat. There is nothing new in this. It is well known fact otherwise also, that much of the essential commodities supplied to be distributed to fair price shops find their way in the open market. Both the Courts below have rendered concurrent finding recording the guilt of the accused. There is no dispute that the accused was entrusted with the food grains in his capacity as a godown keeper, a public servant. The accused has failed to account for the property which was entrusted to him. The accused has put only lame excuses to shield himself which no reasonable person can accept. There are two requirements to be proved by the prosecution for an offence under Section 405/409 and one of them is entrustment with property, or with any dominion over property and the other dishonest misappropriating or converting to his own 10 use that property; or dishonestly using or disposing of that property or willfully suffering any other person so as to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged; or (ii) of any legal contract made touching the discharge of trust. The question of intention is never a matter of direct proof but has to be gathered from the circumstances of the case. In the case at hand, the accused had admitted shortages but has failed to account for the same and has put forward only lame excuses to explain the misappropriation. 15. In my view, there is no merit in this revision and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-