Madhya Pradesh High Court
Babusingh vs The State Of Madhya Pradesh on 25 February, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
cHIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Criminal Revision No.856/2017
Prakashchand ..... Petitioner
Versus
State of MP ..... Respondent.
--------------------------------------------------------------------------------
Appearance
Shri Arun Dudawat, learned counsel for the petitioner.
Shri Kaushlendra Singh Tomar, learned Public Prosecutor
for the respondent/State.
AND
Criminal Revision No.874/2017
Babu Singh ..... Petitioner
Versus
State of MP ..... Respondent.
Appearance
Shri Prabhakar Kushwaha, Advocate from Legal Aid for the
petitioner.
Shri Kaushlendra Singh Tomar, learned Public Prosecutor
for the respondent/State.
--------------------------------------------------------------------------------
Whether approved for reporting : No
-( 2 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
ORDER
(Passed on 25th February, 2021)
This order will govern the final disposal of Criminal
Revision No. 856/2017 and Criminal Revision No.874/2017 as
both the petitions arise out of common judgment. The facts
necessary for adjudication of this matter are taken from Criminal
Revision No. 856/2017.
2. This petition under Section 397/401 of Cr.P.C. has been
preferred by the petitioner challenging the judgment dated
22.08.2017 passed by Second Additional Sessions Judge, Karera
District Shivpuri in Criminal Appeal No.115/2017 whereby
confirming the judgment dated 18.02. 2017 passed by Judicial
Magistrate First Class, Karera in S.T. No.602/2007 wherein the
Court below has convicted the petitioner for the offence under
section 409 of IPC and sentenced to three years RI with fine of
Rs.2000/- with default stipulation.
3. Prosecution story, in short, is that Chief Executive Officer,
Janpad Panchayat, Narwar, District Shivpuri made a complaint to
the Police Station alleging that during the period when the present
petitioner was posted as Secretary and revisionist Babu Singh was
posted as Sarpanch in the financial year 2005-06 & 2006-07 has
withdrawn and amount of Rs. 7,32,495/- for construction and they
-( 3 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
failed to do the construction and used the money for their personal
purpose. Accordingly, FIR was lodged for the offence punishable
under section 409 of IPC.
4. After completion of investigation, challan has been filed and
charges were framed. The trial Court vide judgment dated
18.2.2017 convicted the petitioner for the offence punishable
under section 409 of IPC and sentenced for three years RI with
fine of Rs.2000/-. Against the said judgment, the petitioner
preferred Criminal Appeal No. 115/2017 which was dismissed
vide judgment dated 22.08.2017 by affirming the judgment passed
by the trial Court. Being aggrieved by the impugned judgment,
this Criminal Revision has been filed for setting aside the
impugned judgment.
5. Learned counsel for the petitioner contended that no case is
made out against the petitioners as the alleged amount was not
completely withdrawn by the petitioners rather prosecution has
failed to prove that the amount withdrawn was misappropriated by
the petitioners. As it is the version of the prosecution that the
work done was not evaluated as the hand pump as well as the
cleaning area were filled with water and the case is registered
under section 409 of IPC, therefore, considering the criminal
jurisprudence, burden of proof cannot be shifted towards the
-( 4 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
petitioners/accused. Hence prayed for allowing the petitions by
setting aside the impugned judgments passed by both the courts
below.
6. In support of his arguments, learned counsel for the
petitioner placed reliance on the judgment passed by the Hon. the
Apex Court in Kailash Kumar Sanwata Vs. State of Bihar and
Another reported in (2003)7 SCC 399, which reads as under:-
" 9. The basic requirement to bring home the
accusations under Section 405 are the requirements
to prove conjointly (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 could generally afford useful
guidance in deciding whether in a particular case
the accused had mens rea for the crime.
10. In the instant case even if it was proved as
contended by the learned counsel for the appellant,
that money was entrusted which fact is borne out
by the admitted case about missing of money from
the cash counter of the bank, one factor which
needs to be decided is whether the accused had
dishonestly mis appropriated or converted to his
own use the property entrusted or dishonestly used
or disposed of that property. As presented by the
prosecution, the money was taken away from the
cash counter. It is not the case of the prosecution
that money which was given to the accused
Gautam Bose and the cash peon to obtain bank
drafts was taken away by accused Gautam Bose or
the cash peon Ganaori Sao. Because of an
intervening situation, the disappearance of the cash
due to theft by somebody else, the bank drafts
could not have been prepared and handed over to
-( 5 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
the appellant. Even if there is loss of money, the
ingredients necessary to constitute criminal breach
of trust are absent. If due to a fortuitous or
intervening situation, a person to whom money is
entrusted is incapacitated from carrying out the
job, that will not bring in application of Section
405 IPC or Section 409 IPC, unless mis
appropriation, or conversion to personal use or
disposal of property is established. Unfortunately,
the courts below have not looked at the issues from
these vitally relevant angles. The inevitable
conclusion is that the accused persons cannot be
convicted under Section 409 IPC. This, however,
will not stand in the way of the appellant getting
such relief as available in law otherwise by
pursuing a suitable remedy."
7. Per contra, learned counsel for the State vehemently
opposed the arguments and has submitted that the case is based on
documentary evidence which reflects that the amount withdrawn
has been misappropriated by the present revisionist. Further
more, the prosecution has proved its case beyond doubt as all the
relevant documents show that misappropriation of fund has been
done in the interest of the revisionist thereby the revisionist has
misappropriated the Government fund and the revisionist is
beneficiary in the present case, therefore, section 409 of IPC is
very well proved against the petitioner. It is also submitted that in
para 26 of the judgment of trial Court, the revisionist has
specifically admitted that he had withdrawn Rs.7,32,495/-. Hence
prayed for dismissal of the revision petition.
-( 6 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
8. On perusal of the record, it is apparent that as per
prosecution story, a total amount of Rs.7,32,495/- has been
withdrawn from the bank by the Revisionist. But, in para 7 of the
judgment, it is found that Harishankar (PW-6) on behalf of the
Bank has specifically stated that only an amount of Rs.3,17,800/-
has been withdrawn by the petitioners. As per para 7 of the
judgment, it is also apparent that in ExP-4, it is admitted position
that work of Rs.3,69,974/- has been done by the revisionist, but
for the remaining amount no work has been done and in ExP-4,
S.R.Verma (PW-3) has stated that " uy&ty ;kstuk ejEer dk;Z]
gs.MiEi xM~Mk Hkjko dk;Z" was required to be inspected by the PHE
department and remaining amount was required to be given to the
revisionist for Indira Awas Yojana, but the relevant evidence could
not be produced before the trial Court. In para 6 (ExP-3) of the
trial court's judgment, it is apparent that for the work done for
hand pump cleaning, evaluation could not be possible because it
was filled with water. That is, as per prosecution story, a total
amount of Rs. 7,32,495/- has been withdrawn by the petitioners,
but in the statement recorded of Harishankar (PW-6) on behalf of
the Bank, he has stated that only an amount of Rs. 3,17,800/- has
been withdrawn by the petitioners from the Bank. It is undisputed
that the work was done for Rs.3,69,974/- and for the remaining
-( 7 )- Cr.R.856/2017 & Cr.R.874/2017
Prakash Chand vs. State of MP & Babu Singh Vs. State of MP
amount of Rs.3,62,521/- some work was done by the Panchayat,
for which evaluation could not be done. Accordingly, the alleged
misappropriation of amount come to Rs.34,721/-. In para 28 of
the trial Court's judgment, the burden of proof of the aforesaid
amount not misappropriated by the revisionist has been shifted to
the accused persons, that is against the criminal jurisprudence.
According to Section 409 IPC, unless misappropriation, or
conversion to personal use or disposal of property is established,
accused persons cannot be convicted under Section 409 IPC.
10. The basic principle of criminal jurisprudence is that
prosecution has to prove its case beyond reasonable doubt. But in
the present case prosecution has failed to prove its case beyond
reasonable doubt, therefore, benefit of doubt is given to the
petitioners. Consequently, both the criminal revisions are allowed.
The impugned judgments passed by both the Courts below are
hereby set aside and the petitioners are acquitted from all the
charges framed against them.
With above, both the criminal revisions stand disposed of.
(Rajeev Kumar Shrivastava)
vv Judge
SMT VALSALA
VASUDEVAN
2021.02.27
13:54:09
+05'30'
