Abdul Khaliq Bhat vs Union Of India
2023 Latest Caselaw 1365 j&K/2

        HIGH COURT OF JAMMU &KASHMIR AND
               LADAKHAT SRINAGAR

                                           Reserved on: 10.10.2023
                                           Pronounced on:21.10.2023

                          CRA No. 44/2018

Abdul Khaliq Bhat                               ...APPELLANT (S)
      Through: Mr. Showkat Ali Khan, Adv.

Vs.

Union of India                                 ...RESPONDENT(S)
      Through: Mr. T. M Shamsi, DSGI.

CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.

                           JUDGMENT

1. This appeal is directed against the judgment dated 29.09.2018

passed by the Court of learned Special Judge Anti-Corruption (CBI)

Cases, Srinagar (hereinafter referred to as 'the trial court') whereby

the appellant has been convicted for commission of offences under

Section under Section 420, 409 RPC and 5(2) read with 5(1) (c) &(d)

of the Prevention of Corruption Act, Samvat, 2006 and sentenced to

simple imprisonment of two years for each offence and a consolidated

fine of Rs. 10,000/-and in the event of non-payment of fine within a

period of 30 days, the same has been ordered to be realized from the

estate of the appellant

2. The appellant has impugned the judgment on the ground that

the prosecution has failed to prove that the appellant was entrusted

with the job of cashier/clerk and as such, the appellant was not

discharging his duty as public servant at relevant point of time. It is

urged by the appellant that the learned trial court has not appreciated

the evidence in its right perspective and has convicted the appellant

despite the fact that the prosecution could not prove its case beyond

reasonable doubt

3. Mr. Showkat Ali Khan, learned counsel appearing for the

petitioner submits that the appellant could not have been held guilty of

commission of offence under Section 409 of RPC, as no amount was

entrusted to the appellant by the Bank and further that there was no

loss to the bank or to any private individual. He further submits that

once offence under Section 409 of RPC was not made out, the

appellant could not have been convicted for the commission of

offence under section 5(1) (c) (d) of the Prevention of Corruption Act,

Samvat, 2006. He further argued that even the offence of cheating is

not made out against the appellant.

4. Per contra, Mr. Tahir Majid Shamsi, learned DSGI, submits

that the appellant was assigned the duty of Casher and while

discharging his duty, he accepted the amount of Rs. 21,000/ in total on

three different occasions and issued the receipts to PW-4 Tariq

Ahmad Parray but instead of depositing the same with the Bank, he

retained the amount of Rs.21,000/- with himself. He further submits

that the prosecution has been successful in proving the guilt of the

appellant by leading cogent evidence and there is neither any illegality

nor any infirmity in the judgment passed by the learned trial court.

5. Heard and perused the record.

6. The prosecution story is that on the basis of information

received from the source that the appellant while working as Casher

cum Clerk in Kamraz Rural Bank (now J&K Grameen Bank) Branch

Authoora District Baramulla, received cash from about 16 account

holders at the counter of the bank on various dates for depositing the

same in the bank. He stamped and signed the counter folios of pay in

slips, made entry in the passbook of the account holder in token of

receiving cash but dishonestly and fraudulently misappropriated the

same by not depositing the cash in the bank and by not reflecting the

credit entries in the concerned bank records.

7. During the course of investigation, the ledger sheets, pass

books, counter- folios and pay-in-slips of account holders were seized.

Besides scroll and photo-stat copies of supplementary and day books

etc. were also obtained and the witnesses were examined. During the

investigation it was established that during the year 2007-2008, the

appellant had misappropriated an amount of Rs. 21,000/- in respect of

Account No.DLA-430 of the Bank. After receiving the amount, the

appellant issued counter folios of pay-in-slips as acknowledgments to

the account holder duly stamped and signed/initialed by him. The

appellant issued three receipts in the form of counter folios of pay in

slips dated 26.10.2007, 11.03.2008 and 13.06.2008 in respect of Rs.

4500/-, Rs. 11000/- and Rs. 5500/- respectively, totaled Rs. 21,000/-.

The seized counter folios of pay-in-slips were sent to GEQD Shimla

along with admitted/specimen writing, specimen signatures and

initials for comparison and opinion. After obtaining the sanction from

the competent authority, the charge-sheet for commission of offences

punishable under Section 420, 409 RPC and 5(2) read with 5(1) (c)

(d) of the Prevention of Corruption Act, Samvat, 2006 was laid

against the appellant on 19.12.2009.

8. The appellant was charged vide order dated 10.11.2015 for

commission of offences punishable under Section under Section 420,

409 RPC and 5(2) read with 5(1) (d) of the Prevention of Corruption

Act, Samvat, 2006, though in the charge offence under section 5(1) (c)

was also added. The appellant did not plead guilty and the prosecution

was directed to lead evidence. The prosecution examined eight

witnesses and the appellant also examined two witnesses. The

statement of the appellant was also recorded and after considering the

prosecution evidence, statement of appellant and the defence

evidence, the learned trial court by virtue of judgment impugned

convicted and sentenced the appellant as mentioned above.

9. In order to appreciate as to whether the learned trial court has

rightly appreciated the evidence or not and to consider the issues

raised by the appellant, it is imperative to have a brief resume of the

relevant part of the evidence led by the parties.

10. P.W1 Syed Latief Maqbool (Branch Head of the then

Kamraz Rural Bank Branch Authoora), has stated that he remained

posted as Branch Head w.e.f. 2007 to 2010. During that period, the

appellant was posted as messenger-cum-sweeper in the said branch.

Due to paucity of staff in the Bank, the appellant was assigned the

duty of cashier and he used to work as cashier in the said bank.

Having worked with the appellant, he was well acquainted with the

writings and signatures of the appellant. During his posting, one

relative of Bashir Ahmad Parray had come to him and asked about the

passbook of said Bashir Ahmad Parray. He got the passbook prepared

from the concerned person and handed over the same to him.

However, after some time he came back to the branch with the plea

that there was discrepancy of about Rs. 21,000/- in the passbook,

where upon he received counter folios of pay-in-slips of the amount

deposited by him. After initial reluctance, he handed over the counter

folios of the pay-in-slips to him. He compared the said counter folios

with the ledger and passbook and found that there was discrepancy of

Rs. 21,000/-. He then informed then General Manager Altaf Ahmad

Bhat about the said discrepancy. The General Manager instructed

Rafique Ahmad Shah, then Investigating Officer of the bank, to

investigate the matter. Shri Rafique Ahmad Shah conducted the

investigation and in the meanwhile, other people after getting the

information about the fraud committed by the appellant also came to

the bank with their passbooks and after thorough investigation made

by Rafiq Ahmad Shah, it was found that accused had committed fraud

in various accounts of different customers of the bank. He identified

the counter folios already marked as BAP. He also saw the ledger

sheet of Account No: DL-430 of Bashir Ahmad. He compared it with

the ledger sheet and found that the amounts mentioned in the counter

folios were not credited in the ledger sheet of the said account. The

ledger sheet was exhibited as EXT.P/1. (He has also further deposed

about the other account holders which may not be relevant so far as

the present case is concerned). He further deposed that CBI had taken

one register and one pay-in-slip from him and had seized the same. He

admitted the contents of the seizure memo as true and correct,

identified his signatures over the same. Seizure memo of attendance

register was marked as EXT.P 1/20. He has also admitted the contents

of seizure memo dated 18.12.2009. He also proved the seizure memo

dated 18.12.2009 (EXT.P1/21) and the pay in slips were marked as

SLM-21. He also deposed that when the investigation in respect of

fraud and misappropriation committed by the appellant was going on,

the appellant deposited the entire amount misappropriated by him in

the bank vide four credit vouchers for Rs. 41,000/-, Rs. 80,000/-, Rs.

5000/- and Rs. 1,40,000/-. He stated the said vouchers were in his

(witness's) handwritings and bore his signatures. He identified his

signatures over the same and were collectively exhibited as EXT.P

1/22. During cross-examination, he stated that initially only

discrepancy with respect to the account of Bashir Ahmad Parray had

surfaced. The official designation of the appellant at that time was

Messenger cum Peon. The appellant was not imparted any banking

training. There was no written order regarding the duties of the

appellant as cashier. When Rafique Ahmad Shah came to the branch,

the appellant was summoned but he fled away. He was orally called

by Rafique Ahmad Shah. He handed over the slips marked as BAP to

Inspector Rafique Ahmad. He further deposed that the amounts

written on the said pay-in-slips were received by the appellant. The

pay-in-slips did not bear the signatures of the receiving cashier and

authorized officer. There was an impression of official seal on the said

pay-in-slips. On pay-in-slip dated 13th June, the seal impression of

Kamraz Rural Bank was not visible. In addition to him and other

clerks, the appellant was also maintaining ledger sheets. In ledger

sheet EXT.P1, the last entry dated 18.10.2007, was in the handwriting

of the accused. The said entry was initialed by him also. He did not

ask Bashir Ahmad Parray as to who deposited the amount. He said

that the amount was deposited on the counter of the Bank. The

appellant was not sharing his table, but he was using a separate

counter about 10/11 feet away from his table. He had not done any

course of handwriting, however, the appellant used to write "Y" in a

specific way, he could identify the entire writing of the appellant.

However, he could not say the manner, the appellant used to write

"Z". The amount mentioned in the counter folios marked as BAP was

not deposited in his presence. The relative of the appellant had

deposited the amount on behalf of the appellant in the Bank.

11. P.W 3 Bashir Ahmad Parray has deposed that the appellant

was his neighbour, serving in J&K Grameen Bank, Branch Authoora.

He had borrowed loan from the said bank, he did not remember the

number of the said loan account, however, he had borrowed the said

loan for the purchase of tractor and he would deposit monthly

installment of the said loan in his loan account. Sometimes he would

deposit Rs. 5000/- and sometimes he would deposit more than Rs.

5000/ in the said account. His brother Tariq Ahmad Parray used to

deposit the amount in the loan account. Despite deposit of the monthly

installments in loan account regularly, the Manager of the said bank

informed him on phone that he had not been depositing the monthly

installments for the last three months. Accordingly, he along with his

brother had gone to the bank and showed the receipts of the deposited

amount to the Manager. On seeing the said receipts, the Manager of

the bank told him that the amounts mentioned in receipts were not

entered in the bank record. He identified the said receipts already

collectively marked as BAP. As per his brother the receipts marked as

BAP were issued by the accused after receiving the amount from his

brother. He further stated that the accused had paid him the said

amount of Rs. 21,000/- which he had deposited in loan account.

During cross-examination, he stated that he had borrowed a loan of

Rs. 4.00 lakhs perhaps in 2009. He had mortgaged his land in favour

of the bank against the said loan amount. Tariq Ahmad was not his

real brother, but he (witness) had been adopted by his uncle. The

appellant was an employee of the bank and was working as sweeper.

He was also performing other works of the bank including deposit and

payment of the amount. He did not remember the date when the

manager had called him on phone. He further stated that the accused

had paid an amount of Rs. 21,000/- to his brother as he was not

present in his house at that time and his brother Tariq Ahmad had told

him that the appellant had paid the amount to him. Now he had no

complaint against the appellant.

12. P.W 4 Tariq Ahmad Parray has stated that the accused was

known to him, he was an employee in Authoora Branch of the bank.

The accused was working there as a clerk. The number of loan

account of his brother was DLA-430. He used to go to the Bank and

fill pay-in-slips himself. He had deposited Rs. 4500/-, Rs. 5500/- and

Rs. 11000/- i.e. total amount of Rs. 21,000/- in the said bank through

the accused. The receipts used to bear the signatures of the appellant

as well as the seal of the bank. There were no entries of the said

amount in the passbook and accordingly, he contacted the concerned

Manager of the bank as to why the amounts deposited by him were

not reflected in pass- book, who had admitted that there were no

entries in the ledger of the bank regarding the said amounts. He

further stated that the Manager called the accused and told him that he

should immediately pay the amount back to him, accused admitted

that the said amounts were not deposited in the bank and accordingly,

he had paid the entire amount back. During cross examination the

witness stated that he was not an account holder of the said bank. He

admitted that Bashir Ahmad Parray was not his real brother. He has

also admitted that the appellant had paid the entire amount, so he did

not have any complaint against him. Because of the conduct and

action of the accused, he had not suffered any loss.

13. P.W-5 Rafique Ahmad Shah has deposed that in the year

2003, he was posted as Sr. Manager Inspection and Vigilance J&K

Grameen Bank, Regional Office Sopore. He deposed about the

procedure for deposit of the amount in the bank and further stated that

the appellant while working as Messenger-cum-Sweeper used to

discharge duties of receiving and delivering cash to the clients at

branch office Authoora. He used to receive cash from various clients

and instead of depositing the cash and subsequent credits in the

respective ledger accounts, the appellant would misappropriate the

cash in total betrayal to the interest of the institution. He further

deposed about misappropriation of amount received by the appellant

from customers. He identified the credit vouchers each dated

11.08.2009 for Rs. 41,000/, 12.08.2009 for Rs. 80,000/, 13.08.2009

for Rs. 5,000/ and 17.08.2009 for Rs. 1,40,000, through which the

brother-in-law of the appellant deposited the mis-appropriated amount

in the Bank. He identified the signatures of brother-in-law of the

accused on the vouchers and they were marked as RAS/1, RAS/2,

RAS/3 and RAS/4. He proved the preliminary enquiry report and the

investigation report prepared by him. He also identified the

counterfoils collectively marked as BAP. During cross-examination

he stated that the appellant was personally known to him as he was an

employee of the bank, however, the appellant had never worked with

him. There were verbal orders for conducting enquiry against the

appellant. Prior to investigation, he was aware about the person who

had committed fraud. It was the accused who was handling the cash

so the counter folios marked as BAP were issued by the accused

himself. The counter folios did not bear the signature of any person,

however it bore the seal of cashier of the bank.

14. PW-6 Dr. S Ahmad (Handwriting Expert) proved the

handwriting opinion marked as EXT.P/SA.

15. PW7 Raja Abdul Lateef (Then Chairman Kamraz Rural

Bank now J&K Grameen Bank) proved the sanction orders (EXT.

PW7&EXT.7/1) for prosecution of the appellant. During cross-

examination he stated that he did not remember what type of material

was placed before him. He further stated that Branch Manager

assigned the job to his staff including the messenger-cum-sweeper.

Sometimes the job was assigned in writing and sometimes orally.

16. PW-8, Rafiq Ahmad (I.O) has deposed that he conducted the

investigation in FIR No.4(A)-2009 which was registered against the

appellant. The FIR was registered by Shri Javaid Siraj, then SP CBI,

Srinagar. He seized the relevant record from the concerned quarters

and recorded statements of the witnesses. He also obtained specimen

writings, signatures and initials of the appellant in presence of the

independent witnesses. He also collected admitted writings of the

appellant. He sent the specimen writings, signatures, admitted

writings as well as questioned documents to GEQD Shimla for

comparison and received the opinion from GEQD. After investigation,

he proved offences against the appellant and produced charge sheet

against him. During cross-examination, he stated that the sanction for

prosecution of the appellant was issued by the competent authority.

The FIR was registered on the basis of source information and not on

the complaint of Chief Manager of the concerned bank. The

transactions in the bank are tallied with the cashier and Manager

scroll. The manager is not bound to authenticate the counter folio of

the pay-in-slip issued by the concerned clerk in favour of the

depositor. The ledger sheets wherein the transaction of depositors or

withdrawals takes place are authenticated by the manager concerned.

The misappropriated amount of both the charge sheets had been

wholly and solely received by the appellant, however, he had not

forwarded the pay-in-slips and the amount so received to the bank. As

per his investigation, no other employee or manager of the bank was

involved in the commission of offence.

17. PW-9 Abdul Ahad Sheikh stated that he had gone to CBI

office on 12.10.2009 where he was introduced with the appellant by

the Inspector. Appellant out of his free will had given his signatures

and initials in his presence. He had also written certain documents. All

the papers were collectively marked as EXT.P13. During cross-

examination he stated that he did not remember the heading of the

documents. He did not ask the accused as to whether he was under

any pressure. No written order was issued to him to visit the office of

CBI.

18. After the completion of the prosecution evidence, the statement

of the appellant was recorded under Section 342 Cr. P. C. In his

statement recorded under Section 342 of the Cr. P. C, the appellant

denied the allegation of misappropriation leveled against him. He

further stated that the management tried to protect the managerial

lapses of the Manager, Syed Latif Maqbool, who used to project all

these fabricated issues against him.

19. The appellant examined two witnesses in his defence. DW

Abdul Majeed Magloo stated that he used to go to the bank for

depositing and withdrawing the amount and his brother Mohammad

Maqbool Magloo also used to go to the bank. He would hand over the

amount to the cashier of the bank. The accused was posted as Sweeper

in the bank and in addition to sweeping, he would also take files.

During cross-examination he stated that he did not know as to whether

the Branch Manager had deputed the appellant on the cash counter of

the bank.

20. DW Abdul Ahad Khan has stated that the appellant was posted

as Peon in Kamraz Rural Bank and he was having account No.1258 in

the said Branch. He would deposit and withdraw the amount through

cashier and accused had not taken any money from him. During cross-

examination, he stated that he was a carpenter by profession and he

had deposited amount in the bank through different cashiers.

21. The charge against the appellant in the instant case is that the

appellant, who was working as a Messenger cum Sweeper in Kamraz

Rural Bank (now J&K Grameen Bank), Branch Authoora, during the

year 2007-2008, misappropriated an amount of Rs.2,1000/ by not

making the credit entries in the respective ledger sheets and other

connected bank records.

22. It is admitted that in the year 2007-2008, he was working as

Messenger cum Sweeper in Kamraz Rural Bank (now J&K Grameen

Bank), Branch Authoora. PW-1, Syed Latif Maqbool has categorically

stated that during his posting in Kamraz Rural Bank Branch Authoora

w.e.f 2007 to 2010, the appellant was posted as Messenger cum

Sweeper in the said Branch and due to paucity of staff, the appellant

was entrusted with the assignment of Cashier. PW-5, Rafiq Ahmad

Shah, then Senior Manager Inspection and Vigilance, J&K Grameen

Bank, Regional Office, Sopore, has deposed that the appellant during

his posting as Messenger cum Sweeper in Authoora Branch of J&K

Grameen Bank, used to discharge duties of receiving and delivering

cash to the clients of the branch office Authoora. PW-4, Tariq Ahmad

Parray, who is the star witness of the prosecution in the instant case,

has stated that he would deposit the amount in the loan account of his

brother by filling pay-in-slips and he had deposited Rs.4500/,

Rs.5500/ and Rs.11000/ (total Rs.21000/) in the Authoora branch of

the bank through appellant. He further stated that the receipts against

which the amounts were deposited in the bank bore the signatures of

the appellant as well as the seal of the bank. When he found that there

were no entries of the above mentioned amounts in the passbook, he

contacted the concerned Manager of the bank and the Manager called

the appellant and told him that he should immediately pay the amount

back to him. The appellant admitted that the said amount had not been

deposited in the bank and, accordingly, he paid back the entire

amount. Though the pay-in-slips marked as BAP do not bear the

signatures of the appellant but the fact remains that PW-4 Tariq

Ahmed Parray has categorically stated that he deposited amount of

Rs. 21,000/ through the appellant. The above named witness was

never cross-examined by the appellant in respect of his statement that

he deposited a total amount of Rs.21000/ through the appellant.

23. PW-3, Bashir Ahmad Parray, who is cousin of PW-5 Tariq

Ahmad Parray, has also stated that he along with his brother went to

the bank and showed the receipts of the amount deposited with the

bank to the Manager and he was told that the said amount was not

entered in the record of the bank. He further deposed that as per his

brother, the receipts marked as BAP, were issued by the appellant

after receiving the amount from his brother. He also deposed that the

appellant had paid him Rs.21000/ which he had deposited in his loan

account. During his cross-examination, the said witness deposed that

the appellant had paid an amount of Rs.21000/ to his brother and he

was not present in his house at that time. This witness too was never

cross-examined by the appellant in respect of the fact that his brother

told him that the receipts marked as BAP were issued by the

appellant.

24. From the evidence of these four witnesses, it is proved beyond

any shadow of doubt that the appellant was assigned the job of a

Cashier due to paucity of staff in Kamraz Rural Bank, Branch

Authoora and PW- Tariq Ahmad Parray deposited an amount of

Rs.21000/ in three installments of Rs.4500/, 5500/ and 11000/ through

appellant which the appellant neither deposited in the bank nor

reflected the same in the bank record and retained the same with

himself. Though the appellant had tried to shift the onus upon PW

Syed Latif, who was Manager of the bank by stating in his statement

recorded under section 342 Cr.P.C that at the relevant time by stating

that it was his job to cross check if the appellant was given any job of

maintaining any kind of scroll as he was not doing it independently

but has not been able to discredit the evidence of PWs Bashir Ahmed

Parray and Tariq Ahmed Parray. The appellant has not been able to

dispute or create any shadow of doubt in the evidence led by the

prosecution that it was the appellant who received an amount of

Rs.21000/ from Tariq Ahmad Parray. The appellant cannot shift the

burden upon PW-1 Syed Latif by stating in his statement recorded

under Section 342 Cr. P. C that he used to deposit the cash at counter

duly countersigned by the Manager.

25. It was contended by learned counsel for the appellant that as the

appellant was Messenger cum Sweeper, the offence, if any committed

by him, was not in discharge of his official duties as he was never

employed as a Cashier in the bank. In order to appreciate this

controversy, it is appropriate to extract Section 5(1)(c) & (d) of the

Prevention of Corruption Act as under

"5. Criminal misconduct. -- (1) A public servant is said to commit the offence of criminal misconduct --

             (a)   xxx    xxx    xxx    xxx    xxx    xxx    xxx    xxx
             (b)   xxx    xxx    xxx    xxx    xxx    xxx    xxx    xxx

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;

The perusal of the above quoted Section reveals that a public

servant is said to commit the offence of criminal misconduct if he

dishonestly or fraudulently misappropriates or otherwise converts for

his own use any property entrusted to him or under his control as a

public servant.

26. The expression "public servant" as defined under Section 2(2)

of the Prevention of Corruption Act, means a public servant as

defined in Section 21 of Ranbir Penal Code. The Explanation-2

appended to Section 21 RPC provides that wherever the words "public

servant" occur, they shall be understood of every person who is in

actual possession of the situation of a public servant whatever legal

defect there may be in his right to hold that situation.

27. In State of Gujarat v. Mansukhbhai Kanjibhai Shah, (2020)

20 SCC 360, the Hon'ble Supreme Court of India has held as under:

34. On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was not to provide an exhaustive list of authorities which are covered, rather a general definition of "public servant" is provided thereunder. This provides an important internal evidence as to the definition of the term "university".

28. The appellant admittedly was a public servant as he was

employee of the bank though as Messenger cum Sweeper. He was

assigned the duties of a Cashier and while performing the said duty,

he misappropriated an amount of Rs.21000/ by illegally retaining the

same with himself, though the amount was paid subsequently, as such,

he has committed an offence within the meaning of Section 5(1)(c) of

the PC Act. As the appellant has abused his position as a public

servant and has obtained pecuniary advantage by his illegal acts, as

such he would also be liable under Section 5(1)(d) of the PC Act.

29. The appellant has also been convicted for the commission of

offences under sections 420 and 409 RPC. So far as the offence under

Section 420 of RPC is concerned, the prosecution is required to

establish the ingredients of section 415 RPC, which are as under:

"415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'. Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

30. The prosecution has established that the appellant received an

amount of Rs. 21,000/ from PW Tariq Ahmed Parray but the

prosecution did not prove that there was an act of deception on the

part of the appellant to deceive PW4 Tariq Ahmad Parray to part away

with the money. It is not the prosecution case that the appellant asked

the said PW Tariq Ahmed Parray to deposit the amount and he would

issue the receipt and also it is not the prosecution case that the

appellant being peon-cum-sweeper, without any authority acted as

cashier and received the money from the said witness. The appellant

was performing the duty of cashier pursuant to the instructions of

PW1 and in the normal course of business, PW Tariq Ahmed Parray

handed over the amount to the appellant which amount was

subsequently mis-appropriated by the appellant, as such the essential

ingredients of cheating were missing in the prosecution evidence,

therefore the appellant could not have been convicted for commission

of offence under section 420 RPC.

31. In order to establish the commission of offence under Section

409 RPC, it must be proved that there is a criminal breach of trust by a

banker, carrier, merchant, factor, broker, attorney, or agent. It is

established by the prosecution that the appellant was performing his

duties as a public servant after having been assigned the duties of a

Cashier with Kamraz Rural Bank Branch Authoora by the PW-1 Syed

Latief Maqbool. PW-5 Mohammad Rafiq Shah has mentioned in

detail about the procedure in respect of deposit of amount with the

bank and the appellant while discharging his duties as a public

servant, instead of depositing an amount of RS. 21,000/ entrusted by

PW-4 Tariq Ahmed Parray for depositing in the account of PW-

Bashir Ahmed Parray in breach of trust posed in him by the PW-4

Tariq Ahmed Parray as well as the Bank, he retained the same with

himself.

32. The Hon'ble Supreme Court in Omkar Nath Misra ad Ors.

vs. State (NCT of Delhi) and another, (2008) 2 SCC 561, has held

as under:

16. According to Section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his 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 of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do. Thus, in the commission of the offence of criminal breach of trust, two distinct parts are involved.

"10. ... The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created."

33. The prosecution has successfully proved both the acts on the

part of the appellant so as to warrant his conviction under section 409

RPC.

34. The learned trial court has examined in detail the evidence led

by the prosecution which has been appreciated by this Court as well

and this Court too has come to the same conclusion as the one arrived

at by the learned trial court except in respect of conviction of the

appellant for the commission of offence under section 420 RPC. The

appellant has not been able to satisfy this Court that there has been

any wrong appreciation of evidence by the learned trial court. In fact,

on the basis of the evidence led by the parties, the only conclusion that

can be arrived at is that the appellant is guilty of commission of

offences punishable Section 409 RPC and 5(2) read with 5(1) (c) &

(d) of the Prevention of Corruption Act. Therefore, this Court does not

find any infirmity in the judgment of conviction recorded by the

learned trial court except to the extent of conviction under section 420

RPC.

35. Accordingly, the appellant is acquitted of the charge for

commission of offence under section 420 RPC, however, the

conviction under sections 409 RPC and 5(2) read with 5(1) (c)

&(d) of the J&K Prevention of Corruption Act, Samvat, 2006 is

maintained.

36. At the same time, the perusal of the judgment passed by the

learned trial court reveals that at the time of conviction, the appellant

was 65 years of age and at present he must be 70 years of age.

Learned counsel for the appellant submitted that the appellant is

suffering from old age problems and often remains admitted in the

hospital. The learned trial court has already noted that there are no

aggravating factors warranting exemplary punishment and,

accordingly, awarded two years simple imprisonment on each count.

This is also the fact that the money has been paid back to PW Bashir

Ahmed Parray through Tariq Ahmed Parray.

37. Though Section 409 of RPC does not provide for award of

minimum sentence but the commission of offence under Section

5(1)(c) & (d) of the PC Act is punishable with imprisonment for a

term not less than one year along with fine. Taking into consideration

that the appellant is 70 years old, the sentence awarded to him on each

count is reduced from two years to one year on both counts. The

sentences shall run concurrently and the period for which the

appellant has already remained in custody shall be set off against the

period of imprisonment of one year. The fine imposed by the trial

court shall remain unaltered. The judgment dated 29.09.2018 passed

by the Court of learned Special Judge Anti-Corruption (CBI)

Cases, Srinagar in File NO: 313/2015 titled "C.B.I versus Abdul

Khaliq Bhat" in case FIR No. 01220009A0004 is modified

accordingly.

38. The appellant is granted fifteen days' time to surrender before

the trial court and after his surrender, the appellant shall be lodged in

Central Jail, Srinagar, for serving the remaining sentence so awarded.

In case of failure on the part of the appellant to surrender before the

trial court, the trial court shall proceed in the matter in accordance

with law. The bail and personal bonds of the appellant stand

cancelled.

39. The trial court record along with a copy of this judgment be

sent back.

(RAJNESH OSWAL) JUDGE Srinagar 21.10.2023 "Bhat Altaf, PS"

             Whether the order is speaking:          Yes/No
             Whether the order is reportable:        Yes/No