HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.220 of 2005 JUDGMENT: This Criminal Revision Case is filed against the judgment dated 09.02.2005 passed by the learned I Addl. Sessions Judge, Guntur, in Crl.A.No.405 of 2004 dismissing the said Criminal Appeal while confirming the conviction and sentence recorded against the petitioners-accused by the learned Special Mobile Magistrate, Guntur, in C.C.No.130 of 2002 vide judgment dated 21.09.2004. 2. The case of the prosecution in brief is as follows: i) The offence took place at Kalpavalli Co-operative Stores Ltd (Super Bazar), Guntur within the jurisdiction of this Court. A.1 to A.4 are the employees of the Super Bazar. Akula Sambasivarao, Devineedi Ramamohanarao and Karpurapu Venkatarao were on duty as salesmen in the Self Service Counter of the Super Bazar till 26.11.1994. On that day, they handed over the Self Service Counter to A.1 to A.3 with stocks worth Rs.2,92,608.45 ps and A.1 to A.3 acknowledged receipt of the stocks and assumed the charge of Self Service Counter vide page No.35 of the Liability Register and they were on duty as salesman in the Self Service Counter from 26.11.1994 and started sale of goods from 28.11.1994. Till 31.03.1995 A.1 to A.3 placed intends and received stocks worth Rs.9,62,120.75 ps and remitted cash of Rs.10,58,574.80 ps to the Society.On that day, one Ch.S.Chakravarthi inspected the Self Service Counter and conducted physical verification of the stocks and found the stocks present worth Rs.1,89,930.46 ps and found deficit stock worth Rs.6,223.94 ps. Thus, A.1 to A.3 misappropriated stocks worth Rs.6,223.94 ps and did not account for the same to the Society and they were continued in the Self Service Counter till 30.10.1995. Thereafter also i.e. during the period from 01.04.1995 to 30.10.1995 they misappropriated stocks worth Rs.42,541.35ps. ii) On 30.10.1995 the Self Service Counter with stocks worth Rs.1,47,748.55 ps was handed over to A.2 to A.4. Subsequently, A.2 to A.4 placed intends and remitted Rs.12,78,934.86 ps between 30.10.1995 to 30.05.1996. On 30.05.1996 one K.Hanumantharao inspected the Self Service Counter and found stocks worth Rs.2,01,096.45 ps as against the stocks supposed to be present worth Rs.2,56,830.44 ps. Thus, A.2 to A.4 misappropriated the stocks worth Rs.55,733.99 ps of the Society. On 01.06.1996 A.2 to A.4 handed over the Self Service Counter with stocks worth Rs.2,01,096.45 ps to Karpurapu Venkatarao. Thereafter, A.1 to A.4 remitted the amounts misappropriated by them to the Society. iii) Later, M. Satya Sagar filed a complaint against A.1 to A.4 for misappropriation of amount and the A.S.I. of Police, Nagarampalem L & O P.S., Guntur registered the same as Crime No.89 of 1998 under Section 409 IPC. After completion of investigation, charge sheet is laid against A.1 to A.4 for the offence punishable under Section 409 IPC. A charge under Section 408 IPC was framed against the accused, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. iv) In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 15 and got marked Exs.P.1 to P.14. On behalf of the defence, no oral evidence was adduced, but Ex.D.1 was marked. 3. After evaluating both the oral and documentary evidence, the learned Magistrate found the accused Nos.1 to 3 guilty of the offence under Section 408 IPC and accordingly convicted and sentenced them to undergo rigorous imprisonment for six months each and to pay a fine of Rs.500/- in default to undergo simple imprisonment for thirty days each for the first charge and further sentenced A.2 and A.3 to undergo rigorous imprisonment for six months each and to pay a fine of Rs.500/- in default to undergo simple imprisonment for thirty days each for the second charge, while acquitting accused No.4 of the said offence, vide judgment dated 21.09.2004. Being aggrieved by the same, accused Nos.1 to 3 filed Crl.A.No.405 of 2004 on the file of the I Addl. Sessions Judge, Guntur, and the same was dismissed by the learned Sessions Judge vide judgment dated 09.02.2005. The same is under challenge in this Criminal Revision Case. 4. Heard both sides. 5. The main contention of the learned counsel for the petitioners-A.1 to A.3 is that the ingredients of the offence under Section 408 IPC are not made out by the prosecution and therefore the conviction and sentence recorded against the petitioners are liable to be set aside. 6. According to the prosecution, the appellants herein-A.1 to A.3 misappropriated the stocks worth Rs.42,541.35 ps between 01.04.1995 to 30.10.1995 in addition to the amount of Rs.6,223.94 ps between 26.11.1994 to 31.03.1995 and subsequently A.2 to A.4 also misappropriated the stocks worth Rs.55,733.99 ps between 31.10.1995 and 30.05.1996. There is no dispute with regard to the entrustment of stocks to the appellants-A.1 to A.3. But, the case of the prosecution is that during the periodical check-ups, it was found that the stock supposed to be present and the present stock are not tallying and there is deficiency of stock worth Rs.1,04,499/- during the entire period and for misappropriation of the said amount, they were charged under Section 408 IPC. 408 IPC is the penal provision which runs as follows: Criminal breach of trust:- Whoever, in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express, or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 7. From a reading of the entire Section, it is very clear that entrustment alone is not the criteria to decide the offence. Further, there should be positive evidence that the properties entrusted or dominion over the properties was misappropriated with a criminal intention or with a dishonest intention. 8. As seen from the record and also the evidence, there is no dispute with regard to entrustment of the stock, but the manner in which the same was misappropriated is not properly explained. The aforesaid Section further necessitates the prosecution to prove that the appellants herein dishonestly misappropriated or converted to their own use or dishonestly used or disposed of the properties in violation of any direction of law. In the present case, it is seen from the subsequent records that the entire money alleged to have been misappropriated by the appellants herein has been paid to the society. Further, no due certificate was also issued by the Society in which also it is clearly stated that the said amount was received only for the purpose of deficit in the stock. Mere deficiency of stock itself would not attract the offence under Section 408 IPC and the said Section requires more to prove the offence committed by the appellants. In absence of any such positive evidence to show that the appellants dishonestly misappropriated or converted to their own use or dishonestly used or disposed of the properties in violation of any direction of law, the conviction under Section 408 IPC is not maintainable. 9. In view of the above, it is clear that the prosecution has failed to prove the guilt of the appellants-accused 1 to 3 for the offence under Section 408 IPC and the trial Court as well as the appellate Court did not analyse the case properly and came to a wrong conclusion and convicted the appellants. Hence, the appellants are entitled for acquittal. 10. Accordingly, the Criminal Revision Case is allowed. The conviction and sentence recorded against the appellants herein-A.1 to A.3 for the offence punishable under Section 408 IPC by the learned Special Mobile Magistrate, Guntur, in C.C.No.130 of 2002 vide judgment dated 21.09.2004 as confirmed by the learned I Addl. Sessions Judge, Guntur, in Crl.A.No.405 of 2004, vide judgment dated 09.02.2005, are hereby set aside. Consequently the appellants are acquitted of the said offence and they shall be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. __________________ RAJA ELANGO, J 15th December, 2010 CBS HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.220 of 2005 (Allowed) 15th December, 2010 CBS HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.220 of 2005 Date:15.12.2010 Between: Shaik Mahaboob Basha and others … Petitioners/ Accused 1 to 3 And State of A.P. … Respondent