IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.2112 of 2003 Date of decision: September 16, 2010 Akbar Singh and another .. Petitioners Vs. State of Haryana .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.N. Gaur, Advocate for the petitioners. Mr. J.S. Rattu, DAG, Haryana for the respondent. A.N. Jindal, J The legality of the judgment dated 27.9.2003 passed by the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, dismissing the appeal of the accused-petitioners (herein referred as, 'the accused') against the judgment dated 4.9.1997 passed by the Additional Chief Judicial Magistrate, Jagadhri has been challenged by way of revision. The trial court vide its judgment dated 4.9.1997 convicted and sentenced the accused to undergo rigorous imprisonment for two years under Section 408 IPC and rigorous imprisonment for one year under Section 418 IPC. However, the Appellate Court, while acquitting the accused under Section 418 IPC, maintained his conviction under Section 408 IPC and reduced the sentence to one year. On receipt of the complaint dated 1.3.1986, Mr. R.P.K. Goyal, Judicial Magistrate Ist Class, Jagadhri sent the same to the police under Section 156 (3) Cr.P.C. for registration of the case, on the basis of which FIR was registered against the accused. The allegations as per complaint, in nutshell, are that the accused were working as employees of Cinema Madhu Palace, Yamuna Nagar and were entrusted with the work of purchasing of entertainment tickets from the State Treasury to be affixed on the cinema tickets by them to sell the same to the public. They normally kept Rs.20,000/- with them for Criminal Revision No.2112 of 2003 -2- *** purchasing the entertainment tickets in reserve. From the month of April, 1985 to December, 1985, the accused purchased the tickets worth Rs.8,73,150-15 ps. against the required purchase of tickets worth Rs.9,17,086-45 ps, as such, the accused embezzled the amount of Rs.97,936-30 ps. On registration of the case, it was investigated which was followed by a report under Section 173 Cr.P.C. The accused were charged under Sections 408/418 IPC, to which they pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined SI/SHO Mohan Lal (PW1), Hardev Singh (PW2), Rajdev Tyagi (PW3), Mulakh Raj (PW4), Surinder Mohan District Treasurer (PW5), Jagmal Singh Chahal ETO Yamuna Nagar (PW6), Ved Parkash (PW7) and Sehdev Rana (PW8). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Devi Singh further explained that his duty was to issue the tickets and the tickets were being issued by the Manager and the owner of the cinema. The account of tax was to be maintained by the Manager and the owner. Identical plea was taken by the accused Akbar Singh. The trial resulted into conviction. However, during appeal, while maintaining the judgment of conviction under Section 408 IPC, the accused were acquitted under Section 418 IPC and sentence was reduced to one year under Section 408 IPC. Arguments heard. Record perused. In order to prove the offence under Section 408 IPC, one must prove that :- i) the accused was, or was employed as, a clerk or servant of the person reposing trust in him; ii) the accused, in the said capacity, was entrusted in any manner, with the property in question or with domain over it; and iii) the accused dishonestly misappropriated that property, Criminal Revision No.2112 of 2003 -3- *** or converted it to his own use, or used it, or disposed it of, or willfully suffered some other person so to do, in violation of - (a) any direction of law, prescribing the mode, in which such trust was to be discharged, or (b) any legal contract, express or implied, which he had made, touching the discharge of such trust. On perusal of the aforesaid requisites for completion of the offence, it transpires that the offence of breach of trust is committed when a person who is entrusted in any manner with the property or with domain over it, dishonestly misappropriates it or converts it to its own use or dishonestly uses it or disposes it of in violation of any direction of law prescribing the mode in which the trust is to be discharged or any unlawful contract express or implied made by him touching such discharge or willfully suffers any other person so to do. Though, in order to prove the entrustment and employment of the accused with Madhu Palace, Rajdev Tyagi (PW3) was examined. He has stated that the accused were their employees and their duties were to affix the tickets. The accused Akbar Singh was working since 1974 and they were used to be entrusted with Rs.20,000/- for purchase of entertainment tickets. However, it came to their notice in December, 1985 that the accused had misappropriated a sum of Rs.97936/-. Mulakh Raj (PW4) while reiterating the aforesaid facts has further stated that in December, 1985 they came to know that less entertainment tickets were affixed on the tickets. PW-1 Mohan Lal is the witness to the FIR. Sehdev Rana (PW8) has stated that the police had taken into possession the register Ex.P1, P-5 and P-4. Surinder Mohan District Treasurer (PW5) has deposed that the challan copies of which are Ex.P1 to Ex.P78 were given by him to the police. Jagmal Singh E.T.O. (PW6) has deposed that on 20.10.1986 he was posted as Excise Officer Jagadhri and at that time he received a complaint from the proprietor of Madhu Palace Cinema against the accused that they had committed the offence of criminal breach of trust and cheated them for a sum of Rs.97936-30ps. Criminal Revision No.2112 of 2003 -4- *** As regards the identification of the accused, though PW-3, 4, 5 and 7 have identified the accused facing trial, yet the accused have not denied the fact that they were the booking Clerk and Head Booking Clerk in the Cinema. Though, no letter of appointment has been produced on record, yet, in view of the fact that the accused admitted having been working as Booking Clerk and Head Booking Clerk in the Cinema, thus, the first ingredient would be deemed to have been established. Now coming to the second ingredient of entrustment, the same appears to have not been proved. The witnesses have stated that the accused were to purchase tickets worth Rs.9,17,086-45 against which they purchased the tickets worth only Rs.8,73,150-15, thereby embezzling an amount of Rs.97,936-30p. Nothing has come on record in order to establish if any amount was entrusted to the accused at any time by Rajdev Tyagi (PW3) or any proprietor or partner of the Cinema. Rajdev Tyagi while appearing in the witness box as PW-3 has not stated that if he was the proprietor or partner of the Cinema and he has also not stated if he had entrusted any amount to the accused. Entries with regard to entrustment of Rs.20,000/- allegedly on number of times to the accused, are not proved on record. In the absence of any entrustment, how the accused could be said to have domain over the said property and at the same time in the absence of entrustment of any particular amount, the factum with regard to misappropriation of that property also cannot be said to be proved. No such entries with regard to entrustment of Rs.9,17,086-45p has been proved on record. It is also proved that the accused were deputed to purchase tickets or that they were usually purchasing the entertainment tickets. In the absence of entrustmemnt, the accused cannot be said to have committed the criminal breach of trust. However, on appreciation of the evidence it transpires that the proprietor of the Cinema having been slapped with a notice for not affixing the required number of entertainment tax tickets and embezzling the amount of Rs.97936-30p made the accused scape goat in order to avoid their own liability. The Trial Court as well as the Appellate Court have not taken note of the aforesaid aspects of the case and the legal position as envisaged under Section 408 IPC, therefore, interference at my end has Criminal Revision No.2112 of 2003 -5- *** become inevitable. For the foregoing reasons, I accept the revision petition, set aside the impugned judgment, acquit the accused of the charges framed against them and direct that they be set at liberty forthwith. Bail bonds and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded. September 16, 2010 (A.N. Jindal) deepak Judge