Jharkhand High Court
Braj Kishore Mahto vs The State Of Jharkhand on 9 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Criminal Revision No. 435 of 2015
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Braj Kishore Mahto, son of late Chandu Mahto, resident of vill-Oriya, P.O.
& P.S.-Lesliganj, District-Palamau ... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate
Mr. Raj Vardhan, Amicus
For the State : Mrs. Priya Shreshtha, Spl.PP
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Order No. 06/ Dated: 09th December 2022
The petitioner is aggrieved of the judgment in Criminal Appeal
No.50 of 2009 by which the appellate Court has confirmed his conviction
under section 409 of the Indian Penal Code (in short, IPC).
2. In G.R Case No.1303 of 1995, the petitioner has been
convicted and sentenced to R.I for 3 years and fine of Rs.2,000/- under
section 409 IPC.
3. Lesliganj P.S Case No.72 of 1995 was lodged on the basis of
written report of the Block Development Officer, Lesliganj making an
allegation against the petitioner that he misappropriated Rs.7,747/- and did
not complete construction of the building.
4. A charge under sections 406 and 420 IPC was framed against
the petitioner which he denied and claimed trial. In the trial, the
prosecution has examined 3 witnesses to prove that Rupee One Lac from
M.P quota was given to the petitioner to complete Project No. MP/3/92-93
which was in relation to construction of the High School building at Oriya.
5. The Judicial Magistrate, 1st Class, Daltonganj at Palamau, on
appreciation of materials laid before him, held that the charge under section
420 IPC is not proved. However, the petitioner has been convicted under
section 409 IPC for the following reasons:
"15. In view of above I find that prosecution has succeeded in
proving the fact that accused was appointed as a contractor to
complete the government work of construction of school building
of Oriya High School. It has also been proved that accused being
an agent received Rs.98,000/- (rupees ninety eight thousand) as
an advance to construct the school building which is an
entrustment of property to accused. It has also been proved that
2 Criminal Revision No. 435 of 2015
accused did not complete work of Rs.7,747/- (rupees seven
thousand seven hundred forty seven) and when the rest amount
was demanded he failed to return it to the concerned authority.
P.W.2 clearly states in his deposition about evaluation of the work
and its entry in measurement book, act of accused of not returning
the remaining amount, amounts to criminal breach of trust.
16. As far as defence contention that accused has already paid the
said amount in Block Nazarat and that documents have not been
proved, so accused cannot be held guilty has no teeth. Here I find
that the said amount was deposited on 22.12.95 i.e. after the filing
of the FIR in this case on 05.12.95, it also appears that the said
amount was deposited by the order of the District and sessions
Judge passed in A.B.A. So in the above circumstance accused
cannot absolve himself from the liability of committing the offence
u/s.409 of IPC. As far as non proof of certain documents are
concerned I find that documents have not been proved in
extraordinary circumstance because as per letter dated 28.8.06 of
B.D.O. Lesliganj to this court. I find that record of the above
project was burnt due to blast and fire done by extremists on
13.10.04. Learned APP, has also filed letter No. 605 dated 03.7.07
address to himself by B.D.O. Lesliganj enclosed with photo copy
of detail inventory of the burnt articles in the block and photo
copy of written report of FIR filed by B.D.O. Lesliganj in
Lesliganj P.S. informing the blast done by extremists, which also
shows that records related to work being done from the funds of
M.P. quota were destroyed (vide serial No. 13 of the inventory). In
the above circumstances I find that oral versions of P.W.1, P.W.2
and P.W.3 are consistent and coherent with respect to the fact of
entrustment of the said money to accused and its
misappropriation by accused. I find the version of witnesses are
unblemished. In view of above I find accused is guilty for the
charge u/s. 409 of IPC."
6. As noticed above, the appellate Court has dismissed Criminal
Appeal No.50 of 2009, holding as under:
"14. With this view of the fact and the discussions made above, I
find that on entrustment and factum of misappropriation had been
and proved by the prosecution and accordingly the appellant was
convicted u/s.409 IPC and sentenced properly and I also find that
the learned lower court had not erred in holding the
accused/appellant guilty for committing the offence u/s.409 IPC
and the learned lower court after appreciating all the materials
available on record, rightly found and hold guilty the appellants
u/s.409 IPC and considering the factual aspect of the case and
background of the occurrence sentenced the appellant properly,
so the impugned judgment of conviction is legal, proper and
sustainable in the eye of law and the same does not require any
interference by this court and the same holds good to meet the
ends of justice. The impugned judgment of conviction is fit to be
confirmed and the same stands confirmed."
7. Mr. A.K. Kashyap, the learned senior counsel for the petitioner
has drawn attention of this Court to the defence set up by the petitioner
which has been discussed by the appellate Court in paragraph no.12 of the
judgment dated 22nd January 2015, as under:
3 Criminal Revision No. 435 of 2015
"12. Learned counsel for appellant submitted that the prosecution
has not succeeded to brought the material fact regarding any
defalcation or embezzlement of the fund which was given to the
appellant for the construction of the school building and the
intention was clear from the evidence of the prosecution that the
appellant had completed the maximum work according to contract
and plan and he on getting information from the BDO deposited
rest amount which was lying with him. It is also argued that the
prosecution witnesses P.W-2 who took the measurement of the
work and found that the work of maximum installment has been
completed by the appellant which was entered by this witness in
Measurement Book No.192/92- 93. It is also argued that, that
Measurement Book has not been brought by the prosecution and
only the information as reported to the O/C, Lesliganj has been
marked Ext-1 at the instance of this witness which is not sufficient
to prove the FIR. It is further argued that in absence of the work
order in Project No.192/92-93 and the order of disbursement of
allotment in installment to the appellant has not been proved by
any documentary evidence, so the appellant has erroneously held
guilty for committing the offence u/s.409 IPC, which is not
sustainable in the present set of the fact of the case. The
prosecution has not been able to prove that in fact what amount in
installment was given to the appellant for the construction of the
work and actually what work was done and what work rests with
amount rests with the appellant. It is also argued that the case is
the only outcome of for not paying the illegal gratification to the
BDO and however the appellant has been deposited the amount in
Block Nazarat, so no offence is made out."
8. The offence of criminal breach of trust is defined under section
405 IPC.
9. The essential ingredient for constituting the offence of
criminal breach of trust is entrustment or dominion over any property. The
offence of criminal breach of trust is punishable under section 406 IPC
with imprisonment of either description for a term which may extend to 3
years, or with fine, or with both. However, the offence under section 409
IPC is punishable with imprisonment for life, or with imprisonment of
either description for a term which may extend to 10 years, and shall also
be liable to fine.
10. On a bare glance at the provisions under sections 406 and 409
IPC it is abundantly clear that both are two distinct and separate offence for
which different punishments have been provided under the Indian Penal
Code. The offence under section 409 IPC has been considered by the
legislature an aggravated form of the offence of criminal breach of trust -
but, having been committed by a public servant.
11. There is no material on record to infer that the petitioner in his
capacity as a public servant or banker or merchant, broker, attorney or
4 Criminal Revision No. 435 of 2015
agent has committed the offence of criminal breach of trust. Moreover,
receiving funds for construction of a building out of which if some amount
is not spent that by itself may not amount to the offence of criminal breach
of trust.
12. Having regard to the aforesaid facts and circumstances, I find
that the judgment in Criminal Appeal No.50 of 2009 is flawed in law and,
accordingly, it is set-aside.
13. Criminal Revision No.435 of 2015 is allowed.
14. The petitioner shall be discharged of liability of the bail bond
furnished by him pursuant to the order dated 14 th July 2015 passed by this
Court.
15. This Court appreciate the assistance rendered by Mr. Raj
Vardhan, the learned Amicus.
16. Let the lower Court records be sent back to the Court
concerned forthwith.
17. Let a copy of this order be transmitted to the Court concerned
through "FAX".
(Shree Chandrashekhar, J.)
R.K.
