Kishor S/O Babulal Shrivastav vs State Of Mah. Thr. Pso Ps ...
2021 Latest Caselaw 9251 Bom

 1/16                                                   27-APL-376.21-Judgment



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR.

                    CRI. APPLN. (APL) NO. 376 OF 2021


 APPLICANT :-                      Kishor S/o Babulal Shrivastav, Aged
                                   about 63 years, Occ. Retired, R/o
                                   Sankalp Nagar, Bye Pass Road, Akola, Tq.
                                   and Dist. Akola.

                                      ...VERSUS...

 RESPONDENT :-                      State of Maharashtra, Through Police
                                    Station Officer, Police Station Murtizapur,
                                    Dist - Akola.

 -------------------------------------------------------------------------------------------
                  Mr. A.M.Tirukh, counsel for the applicant.
                   Mr. A.R.Chutake, APP for the respondent.
  -------------------------------------------------------------------------------------------

                                    CORAM : MANISH PITALE, J.

DATE : 15.07.2021.

ORAL JUDGMENT

2. Hearing was conducted through video conferencing

and the learned counsel agreed that the audio and visual quality

was proper.

3. Heard.

 KHUNTE





  2/16                                       27-APL-376.21-Judgment

4. Admit. The present application is heard finally with the

consent of the learned counsel for the parties.

5. By this application, the applicant i.e. accused No.2 has

challenged orders passed by the Magistrate and the Sessions Court

rejecting his prayer for being discharged in respect of Regular

Criminal Case No.222 of 2017, pending before the Court of

Judicial Magistrate First Class, Murtizapur.

6. An F.I.R. dated 09/12/2014 was registered at the behest

of the applicant as the informant against one Suresh Ghate. The

applicant as the Block Development Officer reported to the Police

that the said accused No.1 Suresh Ghate was in-charge of the

godown in which certain tin-sheets were kept, which were meant

for distribution under a scheme to the members of the weaker

section of the society. It was found that 198 such tin-sheets were

missing and on this basis aforesaid FIR stood registered against

accused No.1 under section 409 of the Indian Penal Code (IPC).

7. During the course of investigation, the Investigating

Officer found that the applicant himself was also responsible for

the said offence along with two other persons, who were then

KHUNTE

3/16 27-APL-376.21-Judgment

added as accused Nos.2, 3 and 4. It is found in the papers placed

on record that when the charge-sheet was submitted, the

Investigating Officer had come to the conclusion that the applicant

was equally responsible, because he had suppressed information

available with him with regard to involvement of accused Nos.3

and 4, employees junior to him, in the said offence and he had

deliberately caused registration of the offence only against the

accused No.1.

8. The applicant filed an application for discharge before

the Magistrate, contending that the ingredients of the offence

punishable under sections 409 and 201 of the IPC, were not made

out. This was for the reason that in the charge-sheet/final report,

it was stated that the applicant was not only responsible for

criminal breach of trust as a public servant, but he had also

suppressed evidence showing involvement of accused Nos.3 and 4

with the intention of screening the said offenders from legal

punishment thereby inviting offence punishable under section 201

of the IPC. The Magistrate dismissed the application for discharge

filed on behalf of the applicant. Aggrieved by the same, the

KHUNTE

4/16 27-APL-376.21-Judgment

applicant filed a revision application before the Sessions Court. By

the judgment and order dated 12/12/2019, the revision

application was dismissed and the findings rendered by the

Magistrate were confirmed.

9. Aggrieved by the same, the applicant approached this

Court by filing the present application. This Court issued notice

on 19/03/2021 and granted ad interim stay of the proceedings

before the Magistrate in Regular Criminal Case No.222 of 2017.

10. Mr. Tirukh, learned counsel appearing for the applicant,

submitted that the orders passed by the Magistrate and the

Sessions Court deserved to be set aside and the applicant deserved

to be discharged, in the facts and circumstances of the present

case. By inviting attention of this Court to sections 409, 405 and

201 of the IPC, the learned counsel submitted that essential

ingredients of the said offences were not present in the instant

case, even if the material placed on record by the Investigating

Authority was to be taken into consideration. It was submitted

that in the present case, the tin-sheets that were allegedly

misappropriated were in the charge of accused No.1, who was

KHUNTE

5/16 27-APL-376.21-Judgment

admittedly in-charge of the godown where the tin-sheets were

stored. It was further submitted that the petitioner as the Block

Development Officer was never entrusted with the said tin-

sheets and there was not even an allegation that the applicant had

misappropriated or cause misappropriation of the said tin-sheets.

As regards the alleged role of the applicant in suppressing material

in order to screen accused Nos.3 and 4 from punishment, it was

submitted that the material on record indicated that an enquiry

caused to be instituted by the applicant had returned findings

against accused Nos.3 and 4, only in respect of administrative

lapses on their part in respect of record keeping.

11. Additionally, it was brought to the notice of this Court

that accused Nos.3 and 4 already stood discharged by judgment

and order dated 01/02/2021 passed by this Court in Criminal

Application (APL) No.291 of 2020. This Court in the said

judgment and order had given categorical findings that the

enquiry report in question dated 12/11/2014, merely recorded

failure on the part of accused Nos.3 and 4 to maintain the record

properly and that the material did not even arouse a suspicion

KHUNTE

6/16 27-APL-376.21-Judgment

against accused Nos.3 and 4 with regard to conspiracy in respect

of the offence registered against accused No.1 under section 409

of the IPC. It was submitted that this judgment and order passed

in favour of accused Nos.3 and 4 would enure to the benefit of the

applicant in this application also, since essential ingredients of the

offences were not made out at all. Reliance was placed on

judgments of the Hon'ble Supreme Court in the case of Sardar

Singh v. State of Haryana, reported in (1977) 1 SCC 463 and

Kailash Kumar Sanwatia v. State of Bihar and another, reported in

(2003) 7 SCC 399 as also judgment of this Court in the case of

State of Maharashtra v. Mohan Radhakrishna Pedenekar, reported

in 1999 (2) Mh.L.J. 459.

12. Mr. Chutake, learned APP on the other hand, submitted

that the enquiry report dated 12/11/2014, clearly indicated the

lapses on the part of accused Nos.3 and 4. The said enquiry had

been instituted at the instance of the applicant herein and

therefore, he was clearly aware about the involvement of the said

accused persons and yet he chose to cause the FIR dated

09/12/2014 to be registered only against accused No.1. It was

KHUNTE

7/16 27-APL-376.21-Judgment

submitted that since the scheme of distribution of tin-sheets to

members of the weaker section of the society was being

implemented through the applicant as the Block Development

Officer, it could be said that he was in-charge of the tin-sheets and

the ingredients pertaining to offences punishable under sections

409 and 201 of the IPC could be said to be made out. It was

submitted that in any event, this case against the applicant

deserved to go to trial and it was only after evidence that any

findings could be rendered on the question as to whether the

essential ingredients of the offences were made out against the

applicant or not. The learned APP does not dispute the position of

law laid down in the aforementioned judgments on which the

learned counsel for the applicant has placed reliance.

13. In the present case, few admitted facts are that in the

first instance, the FIR dated 09/12/2014 stood registered only

against the accused No.1 for offence punishable under section 409

of the IPC. The accused No.1 was said to be in-charge of the

godown where the tin-sheets had been stored. The FIR was

registered at the behest of the applicant, who reported the matter

KHUNTE

8/16 27-APL-376.21-Judgment

to the Police as the Block Development Officer, in-charge of the

scheme for distribution of tin-sheets to members of the weaker

section of the society. It is only when the final report/charge-sheet

was submitted that the applicant was arrayed as accused No.2 and

two of his juniors were added as accused Nos.3 and 4.

14. Perusal of the relevant portion of the charge-sheet shows

that according to the Investigating Officer, offences punishable

under sections 409 and 201 of the IPC were made out against the

applicant for the reason that he, as a Block Development Officer,

was in the knowledge of the fact that his own juniors i.e. accused

Nos.3 and 4 were also responsible for the offence and yet he had

suppressed this aspect of the matter and caused the FIR to be

registered only against the accused No.1. The question that arises

for consideration is that even if the said allegation levelled against

the applicant is to be taken into consideration, whether the

ingredients of the offences punishable under sections 409 and 201

of the IPC can be said to be made out against the applicant, for

him to face trial.

15. In this regard, it would be relevant to refer to specific

KHUNTE

9/16 27-APL-376.21-Judgment

portion of the aforesaid provisions of law:

"201. Causing disappearance of evidence of offence, or giving false information to screen offender. -- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,"

"405. Criminal breach of trust.-- Whoever, being 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"."

"409. Criminal breach of trust by public servant, or by banker, merchant or agent.-- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

16. In the present case, it is not disputed that the applicant

is a public servant inasmuch as he is a Block Development Officer.

But, the question is, as to whether the allegations levelled against

KHUNTE

10/16 27-APL-376.21-Judgment

him show that ingredients of the offence punishable under section

409 read with section 405 of the IPC. The learned counsel for the

applicant has relied upon the judgment of this Court in the case of

State of Maharashtra v. Mohan Radhakrishna Pednekar (supra),

wherein the ingredients of the offence have been discussed. It has

been laid down that a person being liable for negligence in a

particular situation has to be distinguished from criminal breach of

trust, as the offence under section 405 of the IPC requires not only

entrustment of property with the accused, but also dishonest

misappropriation of the same or conversion of the same to his own

use by the accused. Much emphasis in the said judgment has been

placed on what could be said to be dishonest misappropriation of

property under section 403 of the IPC read with the definition of

"dishonestly" under section 24 thereof. It has been laid down

clearly that there has to be material to indicate that the aforesaid

ingredients of the offence are found against the accused. In the

case of Kailash Kumar Sanwatia v. State of Bihar and another

(supra), the Hon'ble Supreme Court has held in the context of

section 409 of the IPC as follows:

 KHUNTE





  11/16                                        27-APL-376.21-Judgment

"7. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are :

(1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty- bound to account for; and (2) the accused has committed criminal breach of trust.

8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are : -

(1) Entrusting any person with property, or with any dominion over property.

(2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) 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.

9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove con-jointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime."

 KHUNTE





  12/16                                       27-APL-376.21-Judgment

17. In the case of Sardar Singh v. State of Haryana (supra),

the Hon'ble Supreme Court has held that the prosecution is

required to specifically demonstrate that the accused has

dishonestly misappropriated or converted to his own use the

property that stood entrusted to him. It has been held that in the

absence of any material to indicate the same, the accused cannot

be convicted under section 409 read with section 405 of the IPC.

18. This Court is conscious of the fact that in the aforesaid

judgments the Courts were concerned with a situation where the

matter had gone to trial and the accused had been either

convicted or acquitted. But, the ratio of the said judgments would

apply to the present case, if it is found that not even an allegation

regarding either entrustment of the property or dishonest

misappropriation of the same has been levelled against the

applicant.

19. A perusal of the material on record shows that the thrust

of the allegations against the applicant appears to be his alleged

role in seeking to screen accused Nos.3 and 4 from criminal

liability for their actions in respect of the aforesaid offence by

KHUNTE

13/16 27-APL-376.21-Judgment

suppressing the enquiry report dated 12/11/2014 and causing FIR

to be registered only against accused No.1. There is absence of

any allegation of entrustment of the property i.e. the tin-sheets

with the applicant before this Court and further there is absolutely

no allegation that either he dishonestly misappropriated the same

or that he converted the said tin-sheets to his own use. In the

absence of any such allegation, it is difficult to understand how

basic ingredients of the said offence can be said to be made out

against the applicant. In addition, the accused Nos.3 and 4 have

already been discharged by this Court by its judgment and order

dated 01/02/2021 passed in Criminal Application (APL) No.291

of 2020. The material on record indicates that the allegation

regarding the tin-sheets are pertaining to accused No.1, who was

said to be in-charge of the godown where the tin-sheets were kept.

Therefore, in the absence of any allegations pertaining to the

essential ingredients of the offence punishable under section 409

read with section 405 of the IPC, the applicant certainly made out

a case for discharge before the Courts below.

20. Perusal of the impugned orders passed by the Magistrate

KHUNTE

14/16 27-APL-376.21-Judgment

and the learned Sessions Judge show that both the Courts failed to

examine the crucial aspect regarding the essential ingredients of

the said offence and instead concentrated more on the question as

to whether sanction was required for prosecuting the applicant,

who is a public servant. The Courts below completely

misdirected themselves in considering the application for

discharge moved on behalf of the applicant.

21. On the question of offence punishable under section 201

of the IPC, the allegation against the applicant appears to be that

although he caused an enquiry to be conducted against the

accused Nos.3 and 4 and the enquiry report dated 12/11/2014

did show their involvement in the aforesaid incident, he

deliberately caused the FIR to be registered only against accused

No.1 i.e. the in-charge of the godown and he did not name the

accused Nos.3 and 4 as responsible for the said incident. The

allegation appears to be that the applicant therefore, was seeking

to screen the offenders from legal punishment, thereby inviting

ingredients of offence punishable under section 201 of the IPC.

22. A perusal of the report dated 12/11/2014, shows that

KHUNTE

15/16 27-APL-376.21-Judgment

the findings rendered against accused Nos.3 and 4 pertain to their

failure to maintain record in respect of the tin-sheets. The report

indicates administrative lapses on their part. Even this Court in its

judgment and order dated 01/02/2021 passed in Criminal

Application (APL) No.291 of 2020, found that the statement of

witnesses recorded during the course of the said enquiry merely

indicated that accused Nos.3 and 4 did not maintain the record

properly, but such material did not even raise suspicion regarding

any criminal conspiracy on their part for committing the alleged

offence punishable under section 409 of the IPC. The said

findings were the basis for allowing the prayer for discharge made

on behalf of accused Nos.3 and 4. The said finding would enure to

the benefit of the applicant in this application also, for the reason

that when this Court has already found in favour of accused Nos.3

and 4 regarding absence of any material to raise suspicion

regarding the said offence, no fault could be found with the

applicant in this application for not having proceeded against

them while causing FIR to be registered in the present case. The

essential ingredients of offence under section 201 of the IPC are

found to be missing against the applicant herein. This aspect was

KHUNTE

16/16 27-APL-376.21-Judgment

completely ignored by the Magistrate as well as the Sessions Court

while passing the impugned order.

23. In view of the above, this Court is of the opinion that the

present applicant deserves to be allowed. Accordingly, the

application is allowed. The impugned order dated 17/06/2019

passed by the Judicial Magistrate First Class, Murtizapur in R.C.C.

No.222 of 2017 is quashed and set aside. The order dated

12/12/2019 passed by the Sessions Court, Akola in Criminal

Revision No.90 of 2019 is also quashed and set aside. The

application for discharge filed by the applicant stands allowed in

terms of prayer made therein.

JUDGE

KHUNTE