IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 2037 of 2003 Date of decision: September 10, 2010 Jarnail Singh .. Petitioner Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Padam Jain, Advocate for the petitioner. Mr. Amit Chaudhary, Advocate for the respondent. A.N. Jindal, J Challenge made in this petition is to the judgment dated 30.9.2003 passed by the learned Additional Sessions Judge, Kapurthala, dismissing the appeal filed by the accused-petitioner (herein referred as, 'the accused') against the judgment dated 22.10.1999 passed by the Chief Judicial Magistrate, Kapurthala, convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- under Section 409 IPC. It is pertinent to mention here that on the application moved by the prosecution under Section 319 Cr.P.C. accused Rajan Kumar and Pawan Kumar were ordered to be summoned to face trial along with Jarnail Singh accused under Section 409 IPC, however, they absconded and were declared proclaimed offenders. The factual matrix of the case is that the accused was given agency of STD-PCO under licence dated 28.9.1992 under the Schedule Caste category at the address of “Jhagar Singh Market, Opposite Mandi Jalandhar”. As per licence, the accused Jarnail Singh was only an agent of the department for collecting revenue of the Telecom Department for calls made at STD/PCO by the public and in turn he was being paid commission. The accused used to deposit the amount with the department after deducting his commission against the bills issued for fifteen days period. The accused had collected an amount of Rs.31243/- of the department of the Telephone during the period from 30.9.1994 to 31.10.1994, but he had not deposited Criminal Revision No. 2037 of 2003 -2- the said amount with the department. On the basis of the aforesaid complaint Ex.PA submitted by the General Manager, Telephone, District Jalandhar, a formal FIR was registered and investigation commenced. On completion of the investigation, a report under Section 173 Cr.P.C. was presented in the court. The accused was charged for the offence under Section 409 IPC to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined S.C. Kabar General Manager, Telecom, Jalandhar (PW1), Harjit Singh Juneja, Head Clerk (PW2), Gurdarshan Singh (PW3), Inspector Bachan Singh (PW4), Subhash Chander (PW5), ASI Sumandeep Singh (PW6), Shish Pal Junior Accountant (PW7), Om Parkash Clerk cum Cashier (PW8) and SI Tarlochan Singh (PW9). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further explained that he was minor at that time and he along with his father used to work with M/s Rajan Kumar, Pawan Kumar Commission agent, Grain Market, Kapurthala and his signatures were obtained by the said commission agent who had been running the said STD-PCO connection and that the position of the accused being employee of the said firm was exploited and that no telephone bill was issued to the accused regarding the said connection. He further explained that on coming to know regarding the non payment of the telephone bill in question he deposited the said amount with the Telecom Department. However, no evidence was led in defence. The trial resulted into conviction. His appeal also failed. Before I lay my hands to determine the legality of the conviction of the accused under Section 409 IPC, I need to reproduce the essential ingredients to prove the offence under Section 409 IPC which read as under :- (i) That the accused was entrusted property in any manner or That such property was in his dominion in his capacity of a public servant, or as banker, merchant, factor, broker, attorney or agent, in the way of his business in Criminal Revision No. 2037 of 2003 -3- such capacity. (ii) That the accused committed breach of trust in respect of that property. Before a conviction under Section 409 IPC is recorded, the prosecution must prove : (i) the accused was a public servant (ii) the factum of entrustment; and (iii) the factum of misappropriation of the entrusted article. Having examined the impugned judgment and the records of the case, it transpires that the provisions of Section 409 IPC are not attracted at all. In the instant case, the accused was given the agency of STD PCO under the licence dated 28.9.1992 under Scheduled Caste category. He was only an agent of the department collecting revenue of the Telecom Department for the calls made at STD PCO by the public and in turn he was being paid commission. The allegations against him are that during the period from 30.9.1994 to 31.10.1994 he had collected Rs.31243/- but has failed to deposit the same with the department. It has also come on record that the accused had deposited the said amount before the challan was presented in the court. As such, at the most, the accused could be convicted under Section 406 IPC instead of Section 409 IPC. I find support to my this view from the judgment delivered by the Apex Court in the case of Narendra Pratap Narain Singh and another vs. State of U.P. AIR 1991 Supreme Court 1394. For the forging reasons, while dismissing the petition, the conviction of the accused is converted into Section 406 IPC. However, keeping in view the fact that the petitioner had deposited the embezzled amount before the charge sheet was present against him, the sentence awarded against him is reduced to three months without any alteration in the sentence of fine. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Kapurthala, for compliance. September 10, 2010 (A.N. Jindal) deepak Judge