[Cites 14, Cited by 0]
Punjab-Haryana High Court
Rajinder Singh Sodhi vs State Of Punjab on 28 April, 2026
CRR-2022-2012 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
01 CRR-2022-2012 (O&M)
Reserved on : 12.02.2026
Pronounced on; 28.04.2026
RAJINDER SINGH SODHI
......PETITIONER
Versus
STATE OF PUNJAB
...... RESPONDENT
CORAM: HON'BLE MR.JUSTICE SURYA PARTAP SINGH
Present: Mr. P.S. Hundal, Sr. Advocate with
Mr. Gursahib Singh Hundal, Advocate,
Ms. Arshpreet Kaur, Advocate,
Mr. Kanwar Harjinder Singh, Advocate,
Mr. Jasjeet Brar, Advocate
for the petitioner .
Mr. Rohit Bansal, Sr. DAG, Punjab.
*****
SURYA PARTAP SINGH, J.
1. This is a revision petition against the judgment dated 13.07.2012,
passed by the Court of learned Sessions Judge Bathinda, whereby the appeal
preferred by the revisionist-petitioner has been dismissed.
2. On 06.05.2003 for the commission of offence punishable under
Sections 409, 465, 467, 468, 471 of Indian Penal Code, the FIR i.e. FIR No.70
was lodged in Police Station Nathana, District Bathinda.
3. The pith and substance of the above-mentioned FIR was that a
contract to provide workers was given to a firm namely 'M/s Sodhi Erectors'
CRR-2022-2012 (O&M)
by the authorities of 'Guru Hargobind Singh Thermal Plant', Lehra Mohabat.
According to prosecution case the petitioner/accused/convict, hereinafter being
referred to as 'petitioner' only being proprietor of the above-mentioned firm
deducted money from the wages paid to the workers employed for the above-
mentioned project, but he did not deposit the above-mentioned amount with
the 'Employees' Provident Fund Authorities'. It was also the allegation against
the petitioner that he also failed to deposit the share pertaining to his own
contribution, and thus, misappropriated the above-mentioned money. In
addition to above, there was also the allegation that in order to shield himself
from the above-mentioned liability, he had filed false challan (receipts)
regarding deposit of above-mentioned contribution in the 'State Bank of
India', and thus, committed forgery of valuable security.
4. Once the above-mentioned FIR was lodged, the investigation was
taken up and the petitioner was sent to stand trial for the commission of
aforementioned offences. The trial which was conducted by the learned
Judicial Magistrate 1st Class, Bathinda, hereinafter being referred to as learned
trial Court, culminated into conviction of the petitioner vide judgment dated
24.08.2011, for the commission of offence punishable under Section 409 IPC
[the petitioner was acquitted by the learned trial Court with regard to charges
for the commission of offence punishable under Sections 465, 467, 468 and
471 of IPC]. As a result of above-mentioned judgment of conviction, the
learned trial Court awarded sentence and directed that the petitioner would
have to undergo rigorous imprisonment for a period of one year and to pay a
fine of Rs.5,000/-.
5. Aggrieved of the above-mentioned judgment of learned trial
CRR-2022-2012 (O&M)
Court, the petitioner approached the Court of Sessions by filing an appeal. The
above-mentioned appeal was dealt with by learned Sessions Judge, Bathinda,
hereinafter being referred to as 'Appellate Court'. However, the above-
mentioned appeal did not find favour of learned Appellate Court, and the same
was dismissed vide judgment dated 13.07.2012.
6. Aggrieved of the above-mentioned judgments passed by the
learned Appellate Court [and also the judgment of learned trial Court], the
present revision petition has been preferred by the petitioner on the ground that
both the Courts i.e. learned trial Court as well as learned Appellate Court have
committed the errors of judgment, when both of them failed to appreciate the
fact that no case for the commission of offence punishable under Sections 465,
467, 468 and 471 of IPC was made out against the petitioner. According to
petitioner on the basis of allegations contained in the FIR the offence under
Section 14(1) of the Employees' Provident Funds and Miscellaneous
Provisions Act 1952, hereinafter being referred to as Section 14(1) of the EPF
& MP Act 1952, was made out.
7. It has also been alleged by the petitioner that otherwise also there
was no misuse or misappropriation of funds by the petitioner as the amount
which was supposed to be deposited by the petitioner was not assessed by the
competent authority. As per petitioner, the moment the above-mentioned
amount was assessed by the concerned authority, the petitioner without delay,
before the filing of FIR, deposited the same in the bank, and thus, question of
misappropriation did not arise at all. While claiming that, merely, on the basis
of conjectures and surmises the finding of conviction of petitioner has been
recorded, the petitioner has sought for the exercise of revisional jurisdiction of
CRR-2022-2012 (O&M)
this Court in the impugned judgments, passed by the learned trial Court as well
as learned Appellate Court, and urged for acquittal by setting aside of above-
mentioned judgments.
8. Heard.
9. It has been contended by learned counsel for the petitioner that the
impugned judgments are the outcome of wrong appreciation of fact as well as
law, and that the learned trial Court vis-a-vis learned Appellate Court have
failed to apply proper provisions of law applicable in the present case.
According to learned counsel for the petitioner if the entire contents of the FIR
would have been looked into, in their totality, the only allegation against the
petitioner was that he failed to deposit the requisite contribution as per
provisions of the 'Employees' Provident Fund and Miscellaneous Provisions
Act 1952'. With regard to above, the learned counsel for the petitioner has
contended that for the above-mentioned violation, there is specific provision
under Section 14(1) of the 'EPF & MP Act 1952', which provides for the
punishment, including imprisonment. According to learned counsel for the
petitioner instead of prosecuting the petitioner under the above-mentioned
provision, the charges were framed against the petitioner under the IPC.
Regarding above-mentioned fact situation, it has been contended by learned
counsel for the petitioner that once special statutes had been enacted by the
Legislature, it had the overriding effect over the general provision comprised
under Sections 406, 409 etc. of Indian Penal Code.
10. It has also been contended by learned counsel for the petitioner
that in the present case firstly the prosecution was defective, i.e. without
sanction, secondly, it was under the wrong provision and thirdly, the
CRR-2022-2012 (O&M)
misappropriation of money was not proved at all as any evidence to show that
it was the responsibility of the petitioner to deposit money and he had failed to
do so, had not been proved before the learned trial Court. According to learned
counsel for the petitioner otherwise also once the requisite liability was
assessed by the competent authority, the petitioner deposited the same without
any delay, the prosecution for the charge under Section 409 IPC was illegal.
With regard to his above-mentioned limb of arguments, the learned counsel for
the petitioner has referred to the principles of law laid down by Hon'ble
Supreme Court of India in the case of 'Sardar Singh vs. State of Haryana' AIR
1977 Supreme Court 1766.
11. It has also been contended by learned counsel for the petitioner
that the prosecution of the petitioner was also defective in view of the fact that
the allegation against the petitioner was that he had failed to deposit the
contribution towards 'Employees' Provident Fund' of his employees, and
before prosecuting the petitioner, for the above-mentioned offence, the
requisite sanctioned, as prescribed under Section 14AC of the Employees'
Provident Funds and Miscellaneous Provisions (EPF & MP) Act, 1952, was
not obtained.
12. In addition to above, it has also been contended by learned
counsel for the petitioner that the falsity of the allegation against the petitioner
can be gauged from the fact that charges against the petitioner were also there
for the commission of offence punishable under Sections 465, 467, 468 and
471 of IPC, but with regard to those charges prosecution against the petitioner
failed. While claiming that on account of wrong appreciation as well as fact an
erroneous decision has been rendered by the learned trial Court, vis-a-vis
CRR-2022-2012 (O&M)
learned Appellate Court, the learned counsel for the petitioner has urged that
by accepting the present revision petition, the impugned judgments [the
judgment of learned trial Court vis-a-vis learned Appellate Court] be set aside
and the petitioner be acquitted.
13. The learned State counsel has controverted the above-mentioned
arguments. It has been contended by learned State counsel that instant case is a
full proof case, wherein all the essential ingredients meant for commission of
offence punishable under Section 409 IPC had been proved by the prosecution.
According to learned State counsel on proper appreciation of fact as well as
law a right conclusion had been drawn by the learned trial Court, which has
been duly affirmed by the learned Appellate Court, and that there is no scope
for indulgence or interference in the above-mentioned judgments.
14. The learned State counsel has further contended that in the present
case it was duly proved by the prosecution, beyond the shadow of all
reasonable doubts, that the petitioner was bound by contract of 'Guru
Hargobind Singh Thermal Plant', [GHSTP in short] to provide workers, and
that being employer of those workers, it was the duty of the petitioner to
deposit the Employees' Provident Fund contribution, which comprised of two
components, i.e. the share deducted from the wages of the employees and
employer's contribution. As per learned State counsel the petitioner committed
two defaults with regard to deposit of above-mentioned money. Firstly he
failed to deposit the money which he had received from 'GHSTP' Authority,
and thus, misappropriated the amount and secondly he failed to deposit his
own contribution. As per learned State counsel the above-mentioned act of the
petitioner amounted to criminal breach of trust, as defined under Section 405
CRR-2022-2012 (O&M)
IPC.
15. In addition to above, the learned State counsel has also contended
that in the present case once the contribution to be deposited with the
Employees' Provident Fund Authorities towards the first component, i.e.
contribution of employees paid by 'GHSTP' Authority, was paid to the
petitioner, the petitioner was duty bound to deposit the same, but failed to do
so in the capacity of agent of public office, and therefore, the above-mentioned
act amounted to an offence under Section 409 IPC. In support of his above-
mentioned arguments the learned State counsel has referred to the principles of
law laid down by Hon'ble Supreme Court of India in case of 'Dharwanand vs.
State of U.P.' AIR 1957 SC 594, 'J.M. Desai vs. State of Bombay' AIR 1960
SC 889 and 'Krishna Kumar vs. Union of India' AIR 1959 SC 1390.
16. It has been further contended by learned State counsel that in the
present case this argument of learned counsel for the petitioner has got no force
that for want of requisite sanction, as enshrined under Section 14AC of the
EPF & MP Act, 1952, the prosecution of the petitioner was defective.
According to learned State counsel since charge against the petitioner had been
framed, and proved, for an offence under Section 409 IPC, for such charges
there was no requirement of sanction under Section 14AC of the EPF & MP
Act, 1952. In view of above-mentioned arguments, the learned State counsel
has contended that there is no scope for indulgence in the impugned
judgments, and therefore, there is no scope for the exercise of revisional
jurisdiction vested in this Court. As per learned State counsel the present
revision petition is devoid of merits and deserves dismissal.
17. The record has been perused carefully.
CRR-2022-2012 (O&M)
18. With regard to factual matrix of the present case at the very out-set
it is pertinent to mention here that the charges framed against the petitioner by
the learned trial Court were for the commission of offence punishable under
Sections 409, 465, 467, 468 and 471 of IPC. However, the learned trial Court
convicted the petitioner for the commission of offence punishable under
Section 409 of IPC only, and for rest of the offences the petitioner had been
acquitted. Since against the above-mentioned part of judgment of acquittal, no
appeal was preferred by the State and even against the judgment of learned
Appellate Court, any revision petition has not been filed by the State, it is
hereby observed that the finding of learned trial Court with regard to acquittal
of petitioner qua the charges under Sections 465, 467, 468 and 471 of IPC has
attained finality.
19. As far as the charges for the commission of offence under Section
409 IPC is concerned to prove the same, the prosecution had examined as
many as 10 witnesses.
20. Amongst them PW-1 Inspector Des Raj deposed that on
06.05.2023 he was posted as S.H.O., P.S. Nathana and that on that day, he
received one complaint from Chief Engineer, O&M, GHTP, Lehra Mohabat,
which was forwarded by the then S.S.P. Bathinda vide Endst. E.PA to A.D.A.
Legal. As per PW-1 on account of the endorsement Ex.PA/1 made by A.D.A.
Legal, the S.S.P. Bathinda made his endorsement Ex.PA/2, whereby S.S.P.,
Bathinda ordered for registration of the FIR against the accused.
21. The prosecution further examined Gurdev Singh. Inadvertently
this witness, too, has been numbered as PW-1, but hereinafter he is hereby
referred as PW-1A. Gurdev Singh, the PW-1A, was the Provident Fund
CRR-2022-2012 (O&M)
Inspector. He had proved the record of 'M/s Sodhi Erectors' i.e. Application
Ex.P-1 regarding issuance of EPF code number, Ex.P-2 reminder dated
02.09.1996, Ex.P-3 allotment letter of code number, Ex.P-4 report of Squad
dated 21.02.2000, Ex.P-5 assessment order, Ex.P-6 information to Chief
Engineer, Lehra Mohabat, Ex.P-7 information given by accused regarding
deposit of dues, Ex.P-8 letter regarding deposit of balance amount, out of
assessed amount, Ex.P-9 letter to ensure compliance. The PW-1A further
deposed that all the abovesaid documents were taken into possession by the
police vide memo Ex.ΡΑ.
22. The PW-2 Harbhajan Singh, EO, Regional Provident Fund
Commissioner, Chandigarh deposed that on 28.01.1997 he was posted as E.O.
and Rajinder Singh being Proprietor of 'M/s Sodhi Erectors' had moved an
application Ex.P-1 for issuance of EPF Code, the cover performa of which was
Ex.PW-2/A. As per PW-2, thereafter on 02.09.1996 'Rajinder Singh' again
issued reminder letter Ex.P-2 regarding issuance of code. This witness further
deposed that on 28.01.1997 code no. PB/CH/14680 was allotted to him, vide
letter Ex.P-3, by their office. He had further testified that 'Sodhi Erectors' had
not deposited the EPF of their workers for the period 7/97 to 12/99 amounting
to Rs.54,17,493/-, and that the Enquiry officer of Squad had inspected the
entire record and submitted his report to Commissioner, Chandigarh on
21.02.2000. The certified copy of the same had been proved by the above
witness as Ex.P-4.
23. The PW-3 Harjinder Singh, Assistant Executive Engineer Shift A-
1 of GHPT, Lehra Mohabat had proved the record relating to monthly salary
bills, as Ex.PW-3/A to Ex.PW-3/D, the copies of challans, as Mark-1 to Mark-
CRR-2022-2012 (O&M)
3, photocopies of muster rolls, as Mark-4 to Mark-7, certificate, as Ex.PW-3/E,
letter, as Ex.PW-3/F, copy of attendance register, as Ex.PW-3/G, muster rolls,
as Mark-7 and Mark-8, certificate dated 04.06.1999, as Ex.PW-3/H, and copies
of attendance register, as Ex.PW-3/I and Ex. PW-3/J.
24. The PW-4 Hem Lata Khanna, Deputy Manager, SBOI,
Chandigarh deposed that on 09.05.2003 she was posted in Sector 17 Branch of
SBI Chandigarh and was dealing with EPF. She further deposed that vide
memo No. 481 W-36 dated 01.03.2000, copy of which was Mark 'A',
Superintendent Engineer, GHTP Lehra Mohabat had made enquiries, regarding
deposit of EPF for the period 5/99 to 12/99 and police also moved an
application Ex.PW-4/A upon which she gave her report Ex.PW-4/B and
intimated that as per their record no money was deposited. She further deposed
that challan forms Mark 'B' to Mark 'F' were not issued by their bank and the
stamps affixed on the same were forged.
25. The PW-5 Gurmeet Singh, had proved the record relating to work
orders placed by GHTP, Lehra Mohabat and proved the copies of the same as
Ex. PW-5/A to EX.PW-5/K, which he handed over to the police vide memo
Ex.PW-5/L.
26. The PW-6 Gurcharan Kaur brought the memo No. 2011/WS-85
dated 02.05.2003, and proved on record its copy, as Ex.PW-6/A, and Ex. PW-
6/A1.
27. The PW-7 Mehma Singh, UDC had deposed that on 02.06.2003
when he was posted in the Accounts section of GHTP, he handed over to the
police EPF challans Mark 'A', 'E' and 'F', bills of 'M/s Sodhi Erectors' Ex.PW
7/A to Ex.PW- 7/D and Ex. PW-3/D and also produced before the Police
CRR-2022-2012 (O&M)
certificate regarding deposit of EPF Ex.PW-7/E, to Ex.PW-7/H and Ex.PW-3/E
and payment sheet Mark-'B', Mark 8 and Mark 'C'. He further deposed that the
above-mentioned record was taken into possession by the police vide memo
Ex. PW-7/J.
28. The PW-8 A.S.I. Darshan Singh had proved his attestation over
memo Ex.PA and Ex. PW-8/A, vide which photocopies of documents were
seized.
29. The PW-9 Jarnail Singh, UDC, had proved the copies of EPF
challans Ex.PW-9/A to Ex.PW-9/E and Mark PX to PX-5.
30. The PW-10 Harbinder Singh proved letter Ex.PW-10A bearing
No. C&I/Pb. EB/4 dated 30.01.2003 wherein an amount of Rs.58,440/-on
account of EPF for 1/99 and 2/99 was not deposited.
31. Similarly the PW-11 Jasmail Singh had proved letter Ex.PW-11/A
and PW-12 Chhindi Kaur proved letter Ex.PW-12/A (written by bank SBOI to
Chief Engineering GHTP Lehra Mohabat) intimating the default of deposit of
EPF for the mouth of November 1999. The PW 13 Yovinder Kumar, Assistant
Manager had proved the above-mentioned letters, along with letter Ex.PW-
13/A, having written by their bank, and identified the signatures of Manager
Hem Latta Khanna and Rajiv Tondon.
32. A careful scrutiny of the above-mentioned evidence goes to show
that with the help of above-mentioned evidence the prosecution had been
successful in proving following facts;-
i) that there was a contract between the petitioner and 'GHSTP'
Authority, with regard to providing workers to work in the above-
mentioned project;
CRR-2022-2012 (O&M)
ii) that the workers provided by the petitioner were the employee of
the petitioner, and therefore, petitioner was supposed to contribute
towards the Employees' Provident Fund, with regard to above-
mentioned workers as their employees;
iii) that as per contract, the authorities of 'GHSTP' had paid the entire
money towards wages of the workers provided by the petitioner
to the petitioner;
iv) that the petitioner on receipt of above-mentioned money paid
wages to his workers after deduction of employees contribution
towards Employees' Provident Fund.
33. In view of above the money deducted towards the share of
employee towards Employees' Provident Fund contribution was with the
petitioner and he failed to deposit the same till the objection was raised by the
Provident Fund Inspector.
34. In the present case one of the limb of argument of learned counsel
for the petitioner has been that it was not proved on record that it was the duty
of the petitioner to deposit the above-mentioned Provident Fund. According to
learned counsel for the petitioner since the workers had worked for 'GHSTP',
as per definition of employer, it was the duty of the authorities of 'GHSTP' to
deposit the above-mentioned contribution and not the petitioner.
35. Qua above-mentioned argument, it is relevant to mention here that
the facts of the present case makes it abundantly clear that it was the duty of
the petitioner to deposit the above-mentioned money.
Firstly because EPF code was issued at the instance
of petitioner and it was awarded to the petitioner only. The above-
mentioned fact makes it abundantly clear that it was the duty of
CRR-2022-2012 (O&M)
the petitioner to deposit the contribution towards Employees'
Provident Fund, of the workers provided to 'GHSTP'.
Secondly in the present case there were specific
allegations against the petitioner, although not proved as per
requirement of law, that he had submitted fake/forged receipts
regarding deposit of contribution in the bank towards Employees'
Provident Fund contribution, of the employees. If the petitioner
was not having such duty as per contract, there could not have
been any such endeavour on the part of the petitioner.
Thirdly for the sake of argument even if it is assumed
that for want of proof of above-mentioned receipts, the above-
mentioned plea should not have been taken into consideration,
even then the subsequent conduct of the petitioner who deposited
the above-mentioned amount of Rs.2,91,498/- after the objection
raised by Provident Fund Inspector, showed that it was the duty of
the petitioner to deposit the above-mentioned amount.
36. In view of above discussed factors, it is hereby observed that this
argument of learned counsel for the petitioner has got no force that there was
no evidence on record to show that it was the duty of the petitioner to deposit
the above-mentioned contribution.
37. The second limb of argument of learned counsel for the petitioner
is that, that for want of requisite sanction under Section 14AC of the EPF &
MP Act, 1952, the prosecution of petitioner was defective. With regard to
above-mentioned contention, it is relevant to mention here that the prosecution
of the petitioner was under Section 409 of IPC and not under Section 14(1) of
the EPF & MP Act 1952. The provision for requisite sanction would have
come into picture, if the prosecution of the petitioner would have been under
Section 14(1) of the EPF & MP Act 1952. Thus, it is hereby observed that the
petitioner is not entitled to draw any benefit of Section 14AC of the EPF & MP
CRR-2022-2012 (O&M)
Act, 1952.
38. The third limb of argument of learned counsel for the petitioner
has been that Section 14(1) of the EPF & MP Act 1952 being a specific
provision of special statute has overriding effect over the general provisions
enshrined under Section 409 of IPC. With regard to above-mentioned
contention, it shall be relevant to look into the definition of misappropriation,
as defined under Section 405 of IPC, and also the explanation-1 to the above-
mentioned Section. Section 405 of IPC and explanation-1 to the above-
mentioned Section provides that:-
"Whoever, being in any manner entrusted with property, or
with any 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, or wilfully suffers any other
person so to do, commits "criminal breach of trust".
Explanation 1.-- A person, being an employer of an establishment
whether exempted under section 17 of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or
not who deducts the employee's contribution from the wages
payable to the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being in force,
shall be deemed to have been entrusted with the amount of the
contribution so deducted by him and if he makes default in the
payment of such contribution to the said Fund in violation of the
said law, shall be deemed to have dishonestly used the amount of
the said contribution in violation of a direction of law as
aforesaid."
39. A bare perusal of above-mentioned provision goes to show that
CRR-2022-2012 (O&M)
misappropriation of contribution of employee towards Employees' Provident
Fund amounts to criminal breach of trust.
40. As far as applicability of Section 14(1) of the EPF & MP Act 1952
are concerned following is the factors which is necessary to be taken into
consideration. Firstly as per definition of offence enshrined under Section
14(1) of the EPF & MP Act 1952 mens rea is not an essential ingredient.
However, with regard to an offence under Section 406/409 IPC mens rea is an
indispensable ingredient for the Constitution of offence. In the present case the
act of the petitioner, who received employees' contribution from the 'GHSTP'
Authority and failed to deposit the same with Employees' Provident Fund
Authorities, makes it abundantly clear that there was the existence of mens rea
on the part of petitioner, to mis-appropriate the above-mentioned contribution
with Employees' Provident Fund Authorities. The existence of mens rea
brought, the act of the petitioner out of the purview of Section 14(1) of the EPF
& MP Act 1952.
41. With regard to failure of an employer to deposit the contribution
towards Employees' Provident Fund, there can be two situations. The first
situation is that employees contribution stands deposited, but the employer has
failed to deposit his own share towards the above-mentioned contribution, and
the second situation can be when employer has received or deducted the
employees contribution towards Employees' Provident Fund and instead of
depositing the same with 'Employees' Provident Fund Authorities',
misappropriated the same. The case of the petitioner comes within the purview
of second situation. Thus, provisions of Section 14(1) of the EPF & MP Act
1952 are not applicable to the present case.
CRR-2022-2012 (O&M)
42. With regard to above, a coordinate Bench of this Court in the case
of 'Dhirendra Kumar Rajak Vs. State of Haryana and another' Law Finder ID
No.2225117 has held that prosecution under Section 406 IPC can be
independently, without requiring prior sanction under Section 14AC of the EPF
& MP Act, 1952. The similar view has been taken by the coordinate Bench of
this Court in the case of 'Ajay Kumar Sandhu Vs. State of Haryana' [CRM-M-
13975-2014 (O&M)].
43. In view of above, it is hereby observed that there was no defect in
prosecuting and ultimately convicting the petitioner for the commission of
offence of misappropriation of fund, and not under Section 14(1) of the EPF &
MP Act 1952.
44. In the present case one of the aspect to be taken into consideration
is that the petitioner has been held guilty for the commission of offence
punishable under Section 409 IPC and the petitioner is not a public servant.
With regard to above, it is relevant to note that Section 409 of IPC provides:-
"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."
45. Since the petitioner misappropriated the funds in the capacity of
an agent of public office, it is hereby held that the act of misappropriation by
the petitioner amounted to an offence under Section 409 IPC.
46. With regard to proving a fact in these type of cases, the principles
CRR-2022-2012 (O&M)
of law laid down by Hon'ble Supreme Court of India in the case of 'J.M.
Desai' (supra) are relevant. In the above-mentioned case the Hon'ble Supreme
Court of India has observed that "to establish a charge of criminal breach of
trust, prosecution is not obliged to prove 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."
47. Similarly in the case of 'Krishna Kumar' (supra) the Hon'ble
Supreme Court of India has ruled that "it is not necessary or possible in every
case to prove in what precise manner the accused person dealt with or
misappropriated the goods of his master. The question is one of intention and
not a matter of direct proof. In case of servant charged with misappropriating
the goods of his master the Ingredients of criminal offence of misappropriation
will be established if the prosecution proves that the servant received the
goods, that he was under a duty to account to his master and had not done so.
If the failure to account was due to an accidental loss then the facts being
within the servant's knowledge, it is for him to explain the loss. It is not the law
of this country that the prosecution has to eliminate all possible defences or
circumstances which may exonerate him. If these facts are within the
knowledge of the accused then he has to prove them. If under the law it is not
necessary or possible for the prosecution to prove the manner in which the
CRR-2022-2012 (O&M)
goods have been misappropriated then failure of the prosecution to prove facts
if set out to prove the manner of misappropriation or conversion would be little
consequence."
48. In the present case the learned counsel for the petitioner has also
contended that once the money was deposited by the petitioner on 29.03.2000,
i.e. before the filing of FIR, the cognizance for the commission of offence
punishable under Section 409 IPC could not have been taken against the
petitioner, firstly because of the bar of limitation and secondly in view of
principles of law propounded of Hon'ble Supreme Court of India in the case of
'Sardar Singh' (supra).
49. As far as the above-mentioned argument is concerned, the bar of
limitation cannot be invoked in the present case as the offence for which the
petitioner has been convicted is punishable with imprisonment up to 10 years.
As far as the principles laid down in the case of 'Sardar Singh' (supra) are
concerned, the factual matrix of the above-mentioned case was altogether
different than the factual matrix of the present case. In the case of 'Sardar
Singh' (supra), there was allegation with regard to misappropriation of a
document i.e. receipt book and not the money. In the case the situation is
altogether different.
50. As a sequel to above-mentioned observations, it is hereby
observed that in the present case neither the prosecution of the petitioner was
barred by limitation nor the petitioner were prosecuted under the wrong
provision nor there was any legal bar for prosecution without sanction nor the
evidence adduced by the prosecution was unreliable. Thus, it is hereby
observed that by returning a finding of conviction against the petitioner, for the
CRR-2022-2012 (O&M)
charge under Section 409 of IPC, no error of judgment has been committed by
the learned trial Court and the petitioner has been rightly held guilty and
convicted by the learned trial Court. Hence, it is hereby observed that there is
no scope for indulgence and interference in the impugned judgments of learned
trial Court, vis-a-vis learned Appellate Court, and both the judgments deserves
to be upheld.
51. As a sequel to above-mentioned observations finding no merit the
present petition is hereby dismissed, accordingly.
(SURYA PARTAP SINGH)
JUDGE
28.04.2026
vipin
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
