1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 227 of 2001. Reserved on : 3-9-2008. Date of Decision: 14.10.2008. ____________________________________________________________ Raja Ram. Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. J.S. Guleria, Advocate. ______________________________________________________________ SURINDER SINGH, J. The appellant has challenged his conviction under Section 409, I.P.C. and 13 (2) of the Prevention of Corruption Act, 1988 passed by the learned Special Judge in Corruption Case No. 4-S/7 of 1997 decided on 17-4-2001, whereby he has been sentenced to under go rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- for the offence punishable under Section 409, I.P.C. and under Section 13 (2) of the Prevention of Corruption Act also rigorous imprisonment for a period of one year and to pay a fine of rupees 1000/-. In short, the prosecution case may be stated thus. The appellant was working as a Superintendent Grade-III in WS &SD Branch of Municipal Corporation, Shimla w.e.f. 6.4.1988 to 23.3.1989. While holding the said office, he used to receive the cash and cheque amount after being endorsed by the Municipal Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Engineer. He is alleged to have embezzled an amount of rupees 32,837/- received under the various cheques on different occasions and mis-appropriated the same. Out of the aforesaid amount, rupees 4204/- was recovered from him vide challan dated 1.6.1989 and rupees 5000/- vide challan dated 3.3.1989, the balance amount of rupees 23633/- was allegedly embezzled by him and the fact finding inquiry Exhibit P33 was conducted by PW4 Shri B.R. Verma, the then Assistant Secretary (Tax). PW1 Shri B.K. Sharma, Assistant Commissioner, Municipal Corporation, Shimla made a complaint Exhibit PW1/A to Superintendent of Police, Vigilance, South Zone, Shimla, on the basis of which a case under aforesaid sections was registered on 16.7.1990. The investigation was conducted by the Vigilance department of the State Police. During the investigation it was found that :- (i) On 29.4.1988, the appellant had received the amount of Rs. 611/- from the cash branch, which was entered by him at page 22 of the Chest book. Out of this amount rupees 365/- was paid to Smt. Asha Thakur. Rs. 6/- were not paid to Shri N.D. Sharma and he failed to deposit the balance amount of Rs. 240/- on account of security in the Treasury, thus he had embezzled the amount of Rs. 246 (240.00 + 6.00). (ii) The entry at page 90 of the chest book revealed that an amount of Rs. 2802/- was received by the appellant from the cash 3 branch, entered at page 24 of his chest book. Out of this amount, he paid Rs. 1000/- to Shri Naresh Chand, rupees 253/- to Shri S.P. Goel, Rs. 288/- to Shri Bishan Dass, rupees 253/- to Shri Bhopal (PW7), Rs. 383/- to Shri S.P. Goel, but failed to deposit the security amount of Rs. 693/- of Shri Hari Krishan in the Treasury; (iii) As per entry at page-12 of the chest book of cash branch, on 9.8.1988, the appellant had received an amount of Rs. 6750/- and made its entry at page 50 of his chest book. He paid Rs. 6416/- to Shri S.P. Goel but did not deposit the security amount of Rs. 344/- of Shri Kehar Singh in the Treasury; (iv) On 16.9.1988, Bhup Singh received amount of Rs. 949/- from the cash branch and entrusted it to the appellant under a receipt. Its entry was made at page 56 of the chest book but this amount which was received on account of security deposit of Jagdish Verma was not further deposited in the Treasury; (v) On 19.9.1988, the appellant received a sum of rupees 8971/- from the cash branch, its entry was made at page No. 31 of the pass book of cash Branch. The appellant also made its entry at page 58 of the chest book. Out of this amount, he deposited Rs. 21/- in pass book No. 5755 in the post office, Rs. 461/- in pass book No. 5667 and paid Rs. 157/- to Shri R.K. 4 Chauhan, Rs. 454/- to Shri S.P. Goel, Rs. 6785/- to Shri Suneel Kumar and Rs. 77/- to Shri Bishan Dass, but failed to deposit the balance amount of Rs. 1016/- in the M.C. Treasury; (vi) On 2.11.1988, the appellant as per entry at page 43 of the chest book of cash branch, received Rs. 36489/- and this amount was entered at page nos. 68 and 69 of his chest book. Out of this amount, the appellant deposited Rs. 702/- in the post office as per pass book no. 5714 on 15.11.19888 and Rs. 4287/- against pass book No. 6109 on 13.12.1988. He paid Rs. 6080/- to Shri R.K. Chauhan and Rs. 386/- again to Shri R.K. Chauhan, Rs. 755/- to Shri S.P. Goel, Rs. 3372 to Shri Sushil Kumar and Rs. 6450/- to Shri Hemant Kumar but did not deposit the balance amount of Rs. 14457/- in M.C. Treasury; (vii) As per entry No. 48 of the chest book of cash branch, the appellant received Rs. 9074/- on 15.11.1988, its entry was made at page 74 of his chest book. Out of this amount, the appellant paid Rs. 5010/- to Shri Bhopal Singh (PW7), Rs. 25/- to Shri Raghunath, Rs. 684/- to Shri R.K. Chauhan and Rs. 53/- to Shri Dharam Chand but did not deposit Rs. 3302/- balance in the M.C. Treasury. 5 (viii) As per entry at page 49 of the chest book of the cash branch dated 22.11.1988, the appellant had received Rs. 5587/-, its entry was made at page 75 of his chest book. Out of this amount, he paid Rs. 200/- to Shri R.K. Chauhan, Rs. 100/- to Shri Dharam Chand but did not deposit Rs. 5287/- balance in the M.C. Treasury; (ix) The appellant received Rs. 13571/- on 2.12.1988 from the cash branch, its receipt was entered at pages 76, 77, 79 and 80 of his pass book. Out of this amount, he deposited Rs. 220/- in pass book No. 5995 in the post office and paid Rs. 200/- to Shri Raghunath, Rs. 1430/- was deposited in pass book No. 5806 in the post office, further paid Rs. 4769/- to Shri Raghunath, Rs. 6170/- was paid to Shri Ashok Rana, Rs. 496/- to Shri R.K. Chauhan but did not deposit Rs. 286/- in the M.C. Treasury; (x) The appellant received Rs. 408/- on 29.11.1988 from the cash branch, its entry was made at page 77 of his chest book. Out of this amount, the appellant paid Rs. 70/- to Shri Bhopal Singh (PW7) and Rs. 150/- to Shri Raj Paul but did not pay Rs. 188/- to Om Parkash a labourer, thus embezzled this amount. (xi) The appellant had received an amount of Rs. 1,86,051/- on 1.12.1988 from the cash branch, 6 its entry was made at page 78 in his chest book. Out of this amount, he deposited Rs. 2083/- in pass book no. 6155 in the post office, paid Rs. 10757/- to Shri Raj Paul. Rs. 41459/- to Shri Raghunath, Rs. 27122/- to Shri Bhopal Singh (PW7), further paid Rs. 58675/- to Shri Raghunath, Rs. 25291/- to Shri Dharam Chand and Rs. 14585/- to Shri R.K. Chauhan but did not deposit Rs. 6089/- in MC Treasury. During the investigation, it came to light that Rs. 9204/- out of total embezzled amount and Rs. 32837/- were recovered from the appellant. The Police took the specimen writings and signatures Exhibit P38 to P46 of the appellant before the Executive Magistrate and on comparison by the Govt. Examiner of Questioned Documents, the disputed writings and signatures were found to be in the hand of appellant. Further, few cheques were found to have been destroyed by the Bank but some were taken into possession by the Police from PW6 Shri S.R. Sharma, Deputy Manager of State Bank of India. After completing the investigation, the challan was presented in the Court for the trial of appellant. The appellant was charge-sheeted for the above offences. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He admitted having been posted as Superintendent in M.C. Shimla in the year 1988-89. His posting order Ext. P27 and P28, were admitted to be correct and he also 7 admitted that he had been receiving the cash and cheques pertaining to water works department or branch. According to him, he had received the different amounts as entered in the chest book Ex. P1 at pages 74, 75, 76, 77 and 78 in his hands as also the entries at page 19, 31, 48, 49, 50 and 51 of the another chest book. He further admitted having received the cash amount of eleven cheques jointly exhibited as Exhibit PW17/A drawn by PW5 Maroo Ram and the entries regarding receipt of cash from the cash branch. He stated when he fell ill, he did not make the entries regarding receipt of cash during his illness but he also admitted having received the amount of Rs. 940/- as mentioned in Exhibit PW5/D pertaining to the security of Jagdish and further admitted that the chest and cash of water works department remained in his custody when he was present in office but not during his leave. The vouchers Exhibit P3 to P20 regarding contingent bills and voucher P21 and P22 challans, with respect to eleven cheques, were also admitted. He further admitted his specimen signatures and writings and identification of his writings etc on Exhibit P1, P2, and P23 by the witnesses and the report Exhibit PW10/A of the Govt. expert of questioned documents. The appellant had only raised the defense that he being a Scheduled Caste had superseded the prosecution witnesses who were general candidates, thus they nourished enmity and cooked up a false case against him. Further that the alleged embezzled amount was recovered vide challan No.21 and 22 signed by him under threat. The appellant did not lead any defense. At the end of the trial, the appellant was convicted and sentenced as aforesaid, which has been assailed in this appeal. 8 Shri Rakesh Jaswal, learned counsel for the appellant has forcefully argued that the prosecution failed to prove that the appellant was required to receive money under written or verbal orders, issued by his superiors. The possession of chest where the money used to be kept was not proved to be in possession of the appellant. It was being operated by other officials in his absence. The evidence on record points out that there were duplicate keys. There was no evidence of entrustment and misappropriation, therefore, appellant deserved acquittal. Learned counsel also took me through the evidence on record in detail to point out the discrepancies in the evidence to exhibit the innocence of the appellant and in alternative, argued that the money alleged to have been embezzled has been recovered from the appellant, he is now retired, therefore, a lenient view may be taken. Shri J.S. Guleria, has supported the conviction and sentence passed by the learned trial Court and urged that the prosecution has been able to prove its case beyond a reasonable doubt and the appellant has admitted the prosecution case in so many words, therefore, there is no scope for interference. I have given my anxious consideration to the rival contention of the parties and have carefully re-examined the evidence on record. The prosecution evidence has successfully proved the following facts, which have also been admitted by the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure: a) The appellant was initially appointed as time-keeper in road and building Department of the Municipal Corporation vide order Exhibit-P28. Vide order Exhibit 9 P27, he was subsequently promoted and posted as Superintendent Grade-IV on 4.4.1988. b) He was posted as Superintendent Grade-III during the year 1988-89 and he used to receive all cash and cheques of water works Department/Branch. He was operating the chest book and chest box while on duty. c) He had received the amount as entered in the Chest Book Exhibit P1 at pages 74 to 78 the entries whereof are in his hands. Further the entries at Pages 19, 31, 48 to 51 of the chest Book are also in his hands. He also admitted his specimen writings Exhibit P41 to P46 and signatures Exhibit P38 to P40 taken before the Executive Magistrate Shri Gulab Singh (PW3). d) PW5 Maroo Ram had drawn the amount of eleven cheques and handed over to the appellant and he entered it against receipt in the chest book. e) He also received Rs. 940/- as per Exhibit PW5/D with respect to security amount of Jagdish. f) He also admitted that the chest and cash of water works branch also remained in his custody. g) He further admitted his specimen writings, signatures and the report of PW10 Shri R.K. Jain, the Govt. examiner of questioned documents (Ext. PW10/A). On examination of statement of PW5 Maroo Ram, Head Cashier, I find that the appellant was having the custody of chest book Exhibit P1 and P2 of the Cash Branch, another chest Book Ext. P23 of the water works branch. The appellant had received a sum of rupees 611/- from the cash Branch which is entered at Page No.22 of the Chest Book Exhibit P23. Out of this amount, rupees 365/- 10 was paid to Smt. Asha Thakur and the rupees 6/- was required to be made to Shri N.D. Sharma which was not paid and the balance amount of rupees 240 +6 was not deposited by the appellant. The cheques, including cheques Exhibit PW6/A1 to A6 were encashed by Maroo Ram aforesaid and cash was handed over to the appellant to which he admits. Further, entry in the Chest Book aforesaid shows the receipt of amount of rupees 2802/- by the appellant from the Cash Branch. The appellant paid rupees 1000/- to Shri Naresh Chand and rupees 253/- and 383/- to Shri S.P. Goel, rupees 288/- to Shri Bishan Dass, rupees 253/- to Shri Gopal Singh (PW7) but the appellant did not deposit the amount of security to Shri Hari Krishan to the tune of rupees 693/- in the Treasury. According to PW7 Gopal Singh, the chest book used to remain in the custody of the appellant and he used to deal with the cash. He was also the custodian of the chest book of the water works department. He further stated that the cash received from Maloo Ram, a sum of rupees 949/- pertained to the security of Jagdish Contractor. It was handed over to accused Raja Ram against receipt Exhibit PW7/A which was taken into possession vide seizure memo Exhibit PW7/B. He denied in his cross-examination that the entire amount remained in the custody of the Municipal Engineer. Further, according to him, the accused used to place the entire amount received, in the chest and thereafter he used to keep the same to the different persons. This fact 11 has also been substantiated by PW8 Janki Balbh Bhatt who was working as an Assistant with effect from April 1988 to December, 1988. According to him, in the month of December 1988, the said chest book was given to him by the accused but no cash or charge of the same was given to him. He had further handed over the charge to PW7 Gopal Singh. The evidence further revealed that in chest book Exhibit P23 on 9.8.1988, a sum of rupees 6416/- was received by the accused. This entry was made at page 50. He paid rupees 6416/- to Shri S.P. Goel but he did not deposit the security amount of rupees 344/- in the treasury. Similarly, the evidence also proves on record that the accused had also received the amount of rupees 949/- as entry in the Chest Book at Page 56 which was received on account of deposit of security by Shri Jagdish Verma which has not been accounted for nor deposited in the treasury by the accused. Similarly, the respondent accused failed to deposit rupees 116/- in the M.C. Treasury against receipt of rupees 8971/- from the cash branch as indicated at page 58 of the Chest Book Exhibit P23. Further on pages 68 and 69 of Ext. P23 chest book, the accused had shown having received an amount of rupees 36489/-.Though either he deposited or released the amount to various persons but he failed to deposit/account for the balance amount of rupees 14,457/- which was alleged to have been received on 29.10.1988 and entered at Page No.68 of Chest Book. Further, amount of rupees 9074/- was received by him on 12 15-11-1988 which finds mention at Page No. 74 of the Chest Book Ext. P23. After making the payment to Gopal Singh (PW7), Raghunath and R.K. Chauhan, there was balance of rupees 3302/- which was also not deposited in the Treasury or accounted for by the accused. Further, out of the amount of rupees 5587/- received by the accused, the balance amount of rupees 5287/- was also not accounted for. It is also in evidence that the amount of rupees 186051/- was received from the Cash branch on 1.12.1988 by the accused which finds mention at Page 88 of the Chest Book Ext. P23 whereupon the appellant admits his writing. After making the payment to various persons, the balance amount of rupees 6089/- was not accounted for by the appellant. The relevant record of the case was produced by PW2 Naresh Kumar Sharma to the Police. The specimen writing and signatures were obtained before PW3 Gulab Singh, Executive Magistrate. The signatures of the appellant on the chest book aforesaid were also identified by Maroo Ram (PW5) Head Cashier which fact as stated above has not been disputed by the appellant. Shri Lalit Kapoor (PW11), Municipal Engineer has deposed about the procedure which was prevalent in the office. He has categorically stated that the chest books along with cash books used to be in the custody of the appellant who was responsible to disburse the amount. It also stands admitted by the appellant in his statement under Section 313 of the Code of Criminal Procedure. PW19 Shri S.Nigam had 13 accorded the sanction Exhibit PW18/A, to prosecute the appellant. The above factual scenario, if seen in the light of Section 409 of the Indian Penal Code which provides the punishment for ‘Criminal Breach of Trust’ by a public servant or by banker, merchant or agent., then in order to sustain conviction under this section, the prosecution is obliged to prove two ingredients (i) entrustment of the property of which the accused is duty bound to account for; and (ii) committal of criminal breach of trust. The expression ‘entrusted’ in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. To prove the entrustment of the property should be by some one or the amount recovered must be property of the person on whose behalf it is recovered. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in same person than the accused, he can be said to be entrusted with the property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The appellant, in this case is admittedly a public servant and in that capacity, he received the money as aforesaid in the form of entrustment and in such a situation, it was his bounden duty to deal with the entrusted amount in 14 an honest manner and if he has acted in violation of these directions or dishonestly mis-appropriated the same, he is guilty of the offence even if the entrustment was made to him without any specific orders or under the erroneous presumption. The Apex Court in State of H.P. –v- Karanvir AIR 2006 Supreme Court 2211; has held that once the entrustment is proved, the prosecution is not bound to prove the mis-appropriation as it is for the accused to prove as to how the property entrusted to him was dealt with, within the purview of Section 405 of the Indian Penal Code. If the respondent fails to produce any material for this purpose, the prosecution should not suffer there-for and If the accused does not utilize the amount for the purpose it is deposited, the offence is proved. In the instant case, as discussed above, the entrustment is proved. It was for the accused-appellant to prove as to how the property entrusted to him was dealt with by him. He failed to produce any material for this purpose. The entrustment of the money is not denied by the appellant but his plea was that he remained mostly on leave and his seat was being dealt with by some other persons and they might have defalcated the amount. It has been held in Bagga Singh –v- State of Punjab 1996 Cri.L.J. 2883 that in such a situation, the plea raised alone is not sufficient to acquit the accused in absence of any proof that he had discharged the proof expected of him. 15 The amount defalcated pertains to different dates. In- between he was on duty but did not report about the missing of the cash from his chest nor the record shows that it was utilized for the purpose it was deposited. Therefore, for the foregoing reasons, I find that there is over-whelming evidence on record to show that the appellant had defalcated the amount entrusted to him. He was rightly convicted and sentenced by the learned trial Court for the offences charged. The appellant cannot be shown any further leniency in the matter of sentence as it would tantamount a misplaced sympathy, as such the appeal is dismissed. The appellant is hereby directed to surrender before the Court below to serve out the sentence on 4-11-2008 failing which, the learned trial Court shall take appropriate steps to commit him to prison for executing the sentence passed. Sent down the records. (Surinder Singh) Judge. October 14, 2008. (bm)