Bombay High Court
Municipal Council Beed Th. Chief ... vs The State Of Mah And Anr on 23 September, 2024
2024:BHC-AUG:22276
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 21 OF 2006
Municipal Council, Beed,
Through its Chief Officer. ..Petitioner
VERSUS
1. The State of Maharashtra
Through Police Inspector
Police Station, Beed,
Tq. & Dist. Beed.
2. Shankar S/o Shivling Swami,
Age - 61 years, Occ - Nil,
R/o Burudgalli, Khandare's House,
Beed, Dist. Beed. ..Respondents
...
Advocate for Petitioner : Ms. Divya P. Khandelwal h/f Mr. S.S.
Thombre
Advocat for Respondent No.2 : Mrs. Meenal Siddhesh Deshmukh
(Khapre)
APP for Respondent/State : Ms. M.N. Ghanekar
...
CORAM : S.G. MEHARE, J.
RESERVED ON : AUGUST 13, 2024
PRONOUNCED ON : SEPTEMBER 23, 2024
JUDGMENT :
-
1. The petitioner/Municipal Council has impugned the
order of acquittal passed by the learned Chief Judicial Magistrate,
Beed in Regular Criminal Case No.170 of 1994 dated 12.05.2005.
2. The facts of the case in brief were that the respondent
was the employee of the complainant. He was a cashier since 1982.
His duty was to receive cash from octroi, legal taxes and from other
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sections of the Municipal Council and maintain the accounts properly.
However, in a audit of the Municipal Council from 01.04.1998 to
31.03.1999, it was transpired that the respondent/accused withdrew
the money by cheque but did not enter in the cash book and shown
the expenditures. He misappropriated Rs. 5,00,566.33 paisa. A
notice was issued to the respondent/accused. One month time was
granted to settle the accounts, but he could not. Therefore, a report
was lodged against him. He faced the trial for the offence punishable
under Sections 409, 420 and 477-A of the Indian Penal Code. After
full fledged trial and appreciating the evidence, the learned Trial
Court held that the prosecution has failed to prove either of the
charges against him.
3. Learned counsel for the petitioner has vehemently argued
that the documentary evidence was before the learned Magistrate. It
was a case mostly rest on the documentary evidence. All account
books produced before the learned Magistrate were proved. The
respondent/accused never denied that he was not responsible to
maintain the accounts, cash book. It has been further argued that on
a solitary admission of the accountant, the learned Magistrate
disbelieved the prosecution case. The learned Magistrate ought to
have appreciated the evidence as a whole and not pick and choose.
A huge cash was found in the cupboard of the accused for which he
had no explanation. He has played a fraud with the local body and
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misappropriated the huge amount. The complainant suffered the loss
to the local body. Therefore, revision application is liable to be
allowed.
4. Per contra, learned counsel for the accused has
vehemently argued that the petitioner failed to establish that the acts
of the accused were criminal acts and he had misappropriated the
amount. The learned Magistrate has correctly appreciated the
evidence. Since the prosecution failed to prove the charges, the Trial
Court has correctly held that the respondent/accused is not liable to
be convicted. At the most, it may be inferred that it was improper
accounting. She relied on the case of Jaikrishnadas Manohardas
Desai and another Vs. State of Bombay, AIR 1960 SC 889 . She further
argued that if retrial is directed in exercise of the revisional power of
the High Court, the evidence already recorded at the initial trial
cannot throw another light. If the evidence available on record is
examined, there would be no change in the evidence produced to
establish the crime against the accused. Therefore, no purpose would
be served directing the retrial. To bolster her arguments, she also
relied on the case of Satyajit Baneerjee and others Vs. State of West
Bengal and others, AIR 2005 SC 4161(1). She also filed the notes of
written arguments.
5. The Hon'ble Supreme Court in the case of Jaikrishnadas
(cited supra) has held that to establish a charge of criminal breach of
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trust, the prosecution is not obliged to prove the precise mode of
conversion, misappropriation or misapplication by the accused of the
property entrusted to him or over which he has dominion. The
principal ingredient of the offence being dishonest misappropriation
or conversion which may not ordinarily be a matter of direct proof,
entrustment of property and failure in breach of an obligation to
account for the property entrusted, if proved, may in the light of other
circumstances, justifiably lead to an inference of dishonest
misappropriation or conversion. Conviction of a person for the offence
of criminal breach of trust may not, in all cases, be founded merely on
his failure to account for the property entrusted to him, or over which
he has dominion, even when a duty to account is imposed upon him,
but where he is unable to account or renders an explanation for his
failure to account which is untrue, an inference of misappropriation
with dishonest intent may readily be made.
6. The learned Chief Judicial Magistrate recorded the
reasoning after appreciating the evidence of PW-2, Auditor of the
Municipal Council that no documentary evidence has been brought on
record to establish that the accused encashed the cheques and
received the amount. He disbelieved the Auditor/PW-2 because he
did not personally audited the accounts of any month of that year and
his sub-ordinate had audited the accounts as per his directions. His
evidence does not reflect that his report reflects the cheques were
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encashed and entered in the account book. On the subsequent dates
nor his sub-ordinate auditors have audited the accounts on that line.
It was evident that due to oversight entry of the receipt of the cash
amount was not taken in the credit column. There was cogent and
reliable evidence that the applicant did not misappropriated the
amount and entries were not taken in the cash book due to mistake.
7. Misappropriation of money and mistake in maintaining
the accounts are distinct subjects. Section 409 of the Indian Penal
Code speaks about criminal breach of trust by a public servant, or by
banker, merchant or agent. It provides that 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.
8. In order to prove the offence of criminal breach of trust
which attracts Section 409 of the Indian Penal Code, the prosecution
must prove that the accused in any manner, entrusted with the
property, dishonestly misappropriated the property, commits criminal
breach of trust in respect of that property. The ingredients of the
offence of criminal breach of trust are : (1) Entrusting any person
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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. The basic requirement to bring home the
accusations under S. 405 is also needs to prove whether the accused
was actuated by the dishonest intention or misappropriated it or
converted it to his own use to the detriment of the persons who
entrusted such property.
9. The learned Chief Judicial Magistrate assigned the
reasons that the accused did not maintain correct account for the
reasons admitted by the prosecution witnesses i.e. heavy workload,
incompetency of accused and work pressure. So many times the
accused shown the excess amount in the account than the cash in
hand. Rs.3,44,654/- were found in his cupboard for which the
prosecution did not explain. Under these circumstances, he raised a
reasonable doubt about proof of dishonest misappropriation by the
accused.
10. It appears from the reasons of the learned Chief Judicial
Magistrate that the accused did not misappropriated the amount with
dishonest intention and converted it to his own use to the detriment
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of his employer who had entrusted him the duty of receiving the cash.
The papers produced before the Court provided by the prosecution
witnesses with relevant explanation by the accused and admissions of
the material evidence, the Court is of the view that the learned Chief
Judicial Magistrate did not commit error of law in passing the
impugned judgment of acquittal. There appears no sufficient material
to establish the dishonest intention of the accused and
misappropriation of the funds. There is no substance in the revision
application. Hence, the following order :
ORDER
(i) The criminal revision application stands dismissed.
(ii) No order as to costs.
(iii) Record and proceeding be returned to the learned Chief
Judicial Magistrate, Beed.
(iv) Rule stands discharged.
(S.G. MEHARE, J.)
Mujaheed//
