Ram Kishore Dwivedi vs The State Of Madhya Pradesh
2021 Latest Caselaw 2631 MP

                              1                                Cr.A.No.2206/2009




      HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                        JABALPUR


Case No.                            Criminal Appeal No.2206/2009
Parties Name                                   Ram Kishore Dwivedi
                                                        Vs
                                             State of Madhya Pradesh
Date of Order                            23/06/2021
Bench Constituted                   Justice B.K. Shrivastava
Judgment delivered by               Justice B.K. Shrivastava
Whether approved for reporting
Name of counsel for parties         For Appellant : Shri Sankalp Kochar,
                                    Advocate.

                                    For Respondent : Shri Dinesh Kumar Patel,

Panel Lawyer.

Law laid down Significant paragraph numbers

(JUDGMENT) 23.06.2021

This appeal has been filed under section 374(2) of CrPC on 23.11.2009 by appellant Ram Kishore Dwivedi against the judgment dated 1.10.2009 passed by the Third Additional Sessions Judge, Chhatarpur in Sessions Trial No.168/2008. The trial court convicted the appellant for the offence under section 409 of IPC and sentenced him to undergo 3 years rigorous imprisonment with the fine of Rs.500/- with default stipulations.

2. It is submitted by the counsel for appellant that the trial court grossly erred in convicting the appellant. The findings of the trial court are perverse and contrary to facts and law, therefore, liable to be set aside. There are so many omissions and contradictions in the evidence of prosecution witnesses. The registration fees was duly entered in the fees register. No any amount has been seized from the appellant. The Principal has admitted that appellant had complained about spreading casteism and he had received the letter of

appellant on 7.1.2008 in which it was stated that when the appellant was coming to college on 3.1.2008 his bag has been looted. It is also submitted that the alleged entire amount has been deposited by the appellant. Therefore, the opinion of the trial court that the deposit of amount is afterthought, is not correct. The record also seized after 2 months. The sentence is based on conjuncture and surmises. The prosecution has failed to prove its case beyond reasonable doubt and the sentence awarded is also higher. The appellant is the first offender. There was no any criminal record. He deposited the entire amount, therefore, he should be given the benefit of Probation of Offenders Act and released under section 360 of CrPC.

3. During arguments, it is also submitted by the learned counsel for appellant that no amount was entrusted to the appellant. It was not proved that the appellant received the amount. It is also transpired from the evidence that other persons were also engaged in the work of collecting money and issuing receipts. He draws attention towards Para nos. 3, 4, 5 and 8 of P.W.3. The statements of P.W.3 and P.W.4 are inconsistent. No written document has been submitted for showing the responsibility of appellant. Assigning of the duty was not proved. D.K.Dhuriya did not give the account. The fact of loot is not the part of prosecution story. Any witness has not been told that the amount was given to the accused.

4. On the other side, the learned counsel for State draws attention towards various paras of the judgments and also read out the statement of P.W.2 Paramlal. It is submitted by the counsel for State that the appellant was absconded for about 10 days. No explanation has been given by the accused for his absence from duty for a long time. A Farari Panchanama was also prepared by the Principal. Therefore, the trial court did not commit any mistake by convicting and sentencing the present appellant.

5. As per prosecution case, the Principal lodged a written report on 10.1.2008 upon which the Crime No.13/2008 under section 409 of IPC was

registered. The prosecution story shows that the appellant was working as Assistant Grade-III in the Government College, Laudi, District Chhatarpur and was responsible for the collection of examination fees from the students. He had in his possession the amount of Rs.3,15,740/- which was collected during the period of 24.12.2007 to 1.1.2008. On 1.1.2008, the accused came to the College and took the amount for depositing the same in the State Bank of India but the amount did not deposit by the appellant in the Bank. The accused was absent from his duty, therefore, Principal prepared a Panchanama, which was handed-over to the Police, after lodging the first information report. It is also stated in the documents that on 5.1.2008 the College employee Ram Kishore was sent to the house of accused situated at Village Pahara and on 7.1.2008 at the house situated at Mahoba (UP). The accused was not found at both places. During investigation, the police seized the record and arrested the accused on 10.5.2008. Thereafter challan was filed before the competent Court on 27.6.2008 and the Court of Magistrate committed the case to the Court of Sessions on 11.7.2008. In Sessions Trial No.168/2008 the trial court framed the charges under section 409 of IPC on 2.8.2009. Thereafter, the prosecution examined the witnesses Ram Kishore (P.W.1), Paramlal Ahirwar (P.W.2), D.K.Dhuriya (P.W.3), Balram Chourasiya (P.W.4), Haricharan Raikwar (P.W.5), Bhupendra Mishra (P.W.6), Bheem Pralab (P.W.7), Kaushlendra Pratap Singh (P.W.8) and R.K.Rai (P.W.9). After closing the prosecution evidence, the accused/appellant was examined under section 313 of CrPC. The accused stated that Principal Haricharan Ahirwar was spreading casteism and when the appellant objected then he annoyed with the appellant. The appellant was in possession of the file related to the land of Government College. Because the file was missing, therefore, the appellant submitted the complaint to the higher officers. The inquiry was conducted by the then Principal Dr.Jain. Due to this reason, the Complainant has been falsely implicated by the College staff.

6. The learned counsel for appellant placed reliance upon S.W.Palantikar and others Vs. State of Bihar (2002) 1 SCC 241 and Sardar Singh Vs. State of Haryana (1977) 1 SCC 463.

In the case of S.W.Palantikar(supra) the Supreme Court explained the ingredients of offence related to the breach of trust. In Paras 8 and 9 the Supreme Court observed:-

8. Before examining respective contentions on their relative merits, we think it is appropriate to notice the legal position. Every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person wronged may seek his redress for damages in a civil court but a breach of trust with mens rea gives rise to a criminal prosecution as well.

9. The ingredients in order to constitute a criminal breach of trust are: (1) entrusting a person with property or with any dominion over property (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust."

The case of Sardar Singh(supra) is also related to sections 409 and 405 of IPC. The counsel argued that the entrustment was not proved, therefore, according to Para 2 of the aforesaid case, the offence cannot be found to be proved and the trial court committed mistake by convicting the appellant without any sufficient evidence of entrustment.

Para 2 of the aforesaid case says :-

"2. The only question which arises for consideration in this appeal is whether the appellant could be said to have committed criminal breach of trust in respect of the receipt-

book. There can be no doubt and that it is amply proved by the oral evidence on record read with the list Ex. PA that the receipt book was entrusted to the appellant in his capacity as Patwari on 6th November, 1967 when he took charge of his post. It must equally be taken to be established that the receipt book was not in the room of the appellant when the lock was broken open and charge was forcibly taken from him on 29th December, 1967. Vide Ex. PF and PG. The receipt book was thus not returned by the appellant though he was bound to do so at the time of handing over of charge to his successor. But from this it does not necessarily follow that the appellant committed criminal breach of trust in respect of the receipt book. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with 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. Here as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It is quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under Section 409."

7. First question is whether the alleged amount was entrusted to the appellant or not? It appears from the record of the trial court that the

aforesaid fact was duly proved by the prosecution and by the conduct of the present appellant also. Hari Charan Raikwar (P.W.5) is the Principal of the College, who categorically stated the entire facts of the case. The witness said that the appellant was doing the work of collecting the examination fees from the students. On 28.12.2007 he received the information from Accountant R.K.Dwivedi that the appellant was proceeded to half-day leave on 27.12.2007. Thereafter, he remained absent without any information till 1.1.2008. He came for a short time on 1.1.2008. Thereafter he remained absent. The witness proved the absconding Panchanama Ex.P.2 dated 10.1.2008. As per aforesaid Panchanama, the College staff supported the fact that total Rs.3,15,740/- was collected by the appellant during the period of 24.12.2007 to 1.1.2008 and the accused/appellant is absconded from his duty since 1.1.2008 to 10.1.2008. The aforesaid Panchanama also supported by the evidence of Paramlal (P.W.2). D.K.Dhuriya (P.W.3), Balram Chourasiya (P.W.4) , Bhupendra Mishra (P.W.6) and Kaushlendra Pratap Singh (P.W.8). The accused did not give any explanation regarding his absence from the Government duty for a long time. He was arrested on 10.5.2008. From 1.1.2008 to 10.5.2008 the appellant was absent from his duty. The government servant cannot remain absent without any prior permission from competent authorities. But in this case the accused was absconded for a long time for which no any sufficient reason has been shown by the accused himself. Even he did not give any explanation regarding the absence in his statement recorded under section 313 of CrPC. The Panchanama shows that the total amount of Rs.3,15,740/- was collected by the accused and not deposited in the Bank.

8. The another fact is also transpired from the evidence of Hari Charan Raikwar. The witness said that on 7.1.2008 a letter sent by the appellant was received. In Para 10 the witness said that on 7.1.2008 the letter was received from the appellant in which it was stated that the bag has been looted from him. This fact is also supported by Bhupendra

Mishra (P.W.6). In appeal memo, in the grounds B(iv) the appellant himself stated that :-

"Because the Principal has admitted that appellant had complained about spreading casteism and that he has received letter of the appellant on 7.1.2008 that when he was coming to College on 3.1.2008 his bag has been looted."

It is true that copy of aforesaid letter has not been filed by the prosecution but the fact admitted by the appellant himself. Appellant did not lodge any FIR in this regard. If the bag was looted, then it was the liability of the appellant to lodge the FIR and also intimate the Department. But in the absence of the aforesaid document, it may be presumed that the appellant gave the false information to the Principal in this regard; while the amount was not deposited by him and he was absconded for a long time.

9. Learned counsel for appellant also argued that it is established from the prosecution evidence itself that other employees were also collecting the examination fees and they also issued the receipts to the students, therefore, it cannot be said that the appellant himself collected the aforesaid entire amount. He draws attention towards Para 11 of the judgment, which is related to the statement of D.K.Dhuriya. As per statement, the receipt no.1 to 100 from Article "A", receipt no.88 to 100 from Article "B, receipt no.1 to 6 from Article "D", receipt no.25 to 31 from Article "E" and receipt no.1 to 30 from Article "G" are issued by the appellant himself. The other receipts were issued by other employees of the College but the explanation in this regard has also been found in the evidence. It is the common practice that during the rush hours the other employees may help to other employee who is responsible for collecting the fees. Even other employees also issued receipts, but the amount was collected by the appellant himself. The conduct of the appellant also shows that the amount was with the appellant. The other employees gave the

assistance to the appellant during the rush hours and, therefore, it cannot be said that they also collected the money from students. In the aforesaid situation, the arguments of appellant counsel having no any force.

10. In the statement under section 313 of CrPC the appellant took a plea that the Principal was spreading casteism, therefore, he was annoyed with the appellant. A file related to the land of College was in the custody of appellant. When the file was missing, then the appellant made a complaint to higher authorities and the enquiry was conducted by Dr.Jain, therefore, the staff was having enmity with the appellant. The aforesaid suggestion has not been given in the cross-examination of Principal Haricharan Raikwar (P.W.5). Principal Haricharan Raikwar admitted in his evidence in Para 11 that the accused made the aforesaid complaint and the inquiry was conducted by Shri K.L.Jain. But the witness denied the suggestion of false implication of the appellant because of that complaint.

11. If we consider the entire evidence, then no any possibility of false implication is found. The appellant himself collected the amount. He did not produce any receipt of Bank. The College staff verified the fact and it is found that after collecting the amount, same was not deposited in the Bank. The appellant was absconded from his government duty and he remained absent till 10.5.2008. The aforesaid conduct of appellant shows that he is guilty of embezzlement. No any evidence is required for proving the entrustment in each and every case. In this case so many persons have proved the aforesaid fact that the appellant was deployed for collecting the examination fees from students. The other employees only provided help by issuing some receipts in good faith. The appellant gave the false information about the loot to the Principal.

12. It is also transpired from the record that the application dated 25.7.2008 was filed by the appellant before the trial court for granting the bail under section 439 of CrPC in which it was stated that after collecting the entire examination fees, total amount was handed-over to the Principal

and upon the basis of aforesaid, the Principal collected the cash book. A letter dated 8.6.2008 was sent by the appellant to the Judicial Magistrate First Class, Laudi, District Chhatarpur. In this letter the appellant mentioned that the entire amount of examination fees was given by him to the Cashier and the aforesaid amount has been deposited by the appellant to the Cashier. Two contradictory statements are mentioned in two documents both filed by appellant, which create suspicion and confirm the guilt of appellant.

13. Therefore, it appears from the entire evidence that the prosecution was success in proving the case against the appellant. The trial court did not commit any mistake by convicting the appellant for the offence under section 409 of IPC.

14. Now we see the sentence awarded by the trial court. The trial court awarded the sentence for 3 years RI with the fine of Rs.500/-. The appellant remained in custody since 10.5.2008 to 10.7.2009. Thereafter, the interim bail was granted by the High Court and the accused was released on 10.7.2009 with the direction to surrender on 22.7.2009 but he did not surrender himself on the said date. He appeared before the trial court on 17.8.2009 and since then he remained in custody till the date of final judgment by the trial court i.e. 1.10.2009. The trial court mentioned that the appellant remained in custody for the period of 1 year 3 months 18 days. After filing the appeal, the High Court granted the suspension of substantive jail sentence on 15.1.2010 and in compliance with the aforesaid order, the appellant was released.

15. In this case the appellant was arrested on 10.5.2008. He faced the trial till 1.10.2009. Thereafter, he filed the appeal in the year 2009. One fact is also transpired from the record that the interim bail was granted by the High Court upon the ground of the death of son of appellant named Saurabh, aged about 20 years in an accident on 5.6.2009. The younger son of appellant has been expired. Therefore, in view of this Court, after a long

time no fruitful purpose would be served by sending him back to jail to serve the remaining sentence. The amount of embezzlement may be recovered from the appellant because the Government is competent to take action in this regard. Looking to the aforesaid all circumstances in view of this Court the conviction may be reduced upto the period already undergone by the appellant by enhancing the fine amount.

16. Therefore, no any ground is found to interfere in the conviction under section 409 of IPC. The appeal is allowed only to the extent of quantum of sentence. The appellant is sentenced to the period already undergone by him with the fine of Rs.30,000/-. The aforesaid amount will be deposited by the appellant within 30 days from the date of judgment of this Court; otherwise the trial court will send him in jail to serve the rigorous imprisonment for a period of three months.

17. With the aforesaid direction/observation, the present appeal stands partly allowed/disposed of.

(B.K.SHRIVASTAVA ) JUDGE

TG/-

Digitally signed by TRUPTI GUNJAL Date: 2021.06.24 16:50:42 +05'30'