Harbhajan Lal vs State of Punjab

B.S. Yadav, J.

The present petitioner Harbhajan Lal was working as a conductor in the Punjab Roadways. He was tried in the Court of Judicial Magistrate 1st Class, Batala, for having committed an offence falling under section 409 of the Indian Penal Code. The learned Magistrate convicted him and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 150. In default of payment of fine, further rigorous imprisonment for two months was also awarded. His conviction and sentence was upheld by the learned Additional Sessions Judge, Gurdaspur, in appeal filed by the petitioner. The petitioner has now filed this revision petitioner.

The prosecution story in brief is that on 11th September 1976, the petitioner, who was on duty with bus No. PUC 7506, had been entrusted busfare tickets of the value of Rs. 612.20 (At some places in the evidence this value has been given as Rs. 614.20). The bus was going from Ajanta to Batala. The bus was intercepted near village Chamairi by Inspectors Som Nath (P.W.2) and Balwant Singh. On checking, those inspectors found that the petitioner had charged fare from 231/2 passengers but had not issued tickets to them. The Inspectors made note to that effect in the waybill, which was with the petitioner, and also took unpunched tickets worth Rs. 13.45 pertaining to those 231/2 passengers for handing them over to the said passengers. The petitioner was required to deposit the same proceeds of the tickets with the Cashier on the same day at the close of his duty. However, he did not turn up in the office on that day as well as on the next day nor did he arrange to deposit the cash collected by him by sale of the tickets with the cashier. P.W.S Teja Singh, General Manager of the Punjab Roadways vide letter, Exhibit PD, addressed to the Senior Superintendent of Police, Gurdaspur, got a case registered against the petitioner. After necessary investigation the accused was chargesheeted.

At the close of the prosecution evidence the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution allegations except the fact that on the day in question he was working as a conductor in the Punjab Roadways, Batala Depot. He further pleaded that he had not received any money from the passengers and was in the process of issuing tickets to them when the inspectors intercepted the bus.

To connect the accused with the offence, the prosecution examined only official witnesses who explained the procedure about handing over busfare tickets to a conductor when he left with the bus and about his duty to deposit the cash with the cashier at the close of his duty. P.W. 4 Mohinder Singh, Booking Clerk, had further stated that when the accused did not deposit the waybill or the unused tickets he reported the matter to the higher authorities. It is also in his statement that on 8th November 1976, the accused came to him and deposited a sum of Rs. 200/ besides unused tickets of the value of Rs. 155.15. As the unpunched bus tickets of the value of Rs. 13.45 had been taken by the Inspectors from the petitioner, as noticed earlier, the learned trial Court found that the petitioner had misappropriated Rs. 243.60 and convicted him accordingly under section 409 of the Indian Penal Code.

The learned counsel for the petitioner argued that in the present case the accused was not charged for misappropriating Rs. 13.45 which he is alleged to have taken from those 231/2 passengers when the bus is said to have been intercepted and in fact the learned trial Court specifically held that the allegation against the petitioner that he had charged fare amounting to Rs. 13.45 from 231/2 passengers and had not issued tickets to them was not proved beyond reasonable doubt. The learned counsel for the petitioner further argued that now the oly charge that remains against the petitioner is that he did not return the unused tickets of the value of Rs. 243.60 to the department. He argued that the petitioner could not have been convicted under section 409 even if the allegations are taken as correct and further that there is no evidence on the file that the petitioner had sold those tickets and had misappropriated the amounts so realised. In support of his contention he had cited Pushpa Kumar Rai v. State of Sikkim, 1978 Crl.L.J. 1979. In that case also the accused was posted as a conductor to a bus of the Sikkim Nationalised Transport. The case of the prosecution was that in that capacity the accused had collected a sum of Rs. 2826.60 on account of freight and fare but he neither deposited the amount nor returned the booking charts inspite of several reminders and had misappropriated the amount. The only material evidence against the accused was that he had heen entrusted collection of bus fare. The learned Judges who decided the case, held that even if it was assumed that the accused had collected the amount, the offence did not fall under section 409 of the Indian Penal Code which deals with breach of trust by public servants and others. It was remarked :

"In this case, therefore, even assuming that the accused was a conductor of the Bus of the Sikkim Nationalised Transport as alleged and in such capacity collected bus fares amounting to Rs. 2926.60 as alleged or any other amount and failed to deposit the said amount the accused can never be said to have been entrusted with that amount because the said amount was never `made over'' or `transferred'' or `handed over'' to the acused by anyone on behalf of the Sikkim Nationalised Transport. It also appears that in the charge itself the learned Sessions Judge did not state that the accused was entrusted with any amount but only stated that the accused was "entrusted with collecting the bus fares". I am afraid that being entrusted with the doing of a job is not the same thing as being entrusted with any property within the meaning of S. 405 and other congnate Section of the I.P.C. even though some money or other property may come into the hand of the person in the course of his doing such job. That being so, I am of the opinion that there was absolutely no material on record to frame a charge under S. 409 against the accused."

The learned Advocate General appearing for the State submitted in that case that there was sufficient material on the record to justify the framing of charge under section 403 of the Indian Penal Code and as such if the appeal was going to be allowed, the case could be sent back to the trial Court for retrial on a charge under section 403 of the Indian Penal Code. That request of the Advocate General was also disallowed and it was remarked :

"But even that apart, I am not satisfied that in this case on the materials on record a charge under S. 403, I.P.C. can or could be framed, as urged by the learned Advocate General. I have allready discussed the evidence, both oral and documentary, on record and from a scrutiny thereof I do not find anything from which it can be safely inferred that any amount of bus fare and freight was collected by or came into the possession of the accused. The learned Advocate General, however, urged that at the stage for considering the question of framing charge, the Court should not scrutinise evidence to such an extent and contended further that if the case is sent back for retrial, the prosecution might be in a position to prove criminal misappropriation by the accused by further or better evidence. But I have no doubt that a case should not be sent back for retrial simply because the prosecution expects to be wiser and to adduce further and better evidence. As to the contention of the learned Advocate General that the Court should not scrutinise or closely examine the materials on record at the time of framing charge, I would only like to refer to a recent decision of the Supreme Court in State of Karnataka v. L. Muniswamy (AIR 1977 SC 1494), where it has been observed by the Supreme Court (at P. 1494) that "the order of framing a charge affects the person''s liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge". The Supreme Court observed further that the Court cannot and should not blindly accept the decision of the prosecution that the accused be asked to face a trial. It is not surely the law that the chargesheet submitted by the police is invariably to be followed by a charge framed by the Court and in my view, the law is that even at the stage of framing the charge the Court must determine whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. As I have already pointed out, on the materials on record in this case, a case of dishonest misappropriation of property cannot be said to have been made out because even if the evidence adduced in this case as discussed hereinbefore, remains unrebutted, the accused cannot be convicted for dishonest misappropriation of property as there is no clear evidence on record to show that the accused in fact realised any amount as bus fare or freight or in any way came into possession thereof. In that view of the matter, an order for retiral in this case would be a glaring abuse of the process of the Court."

The learned counsel for the petitioner has also cited Sardar Singh v. State of Haryana, 1977 Crl.L.J. 1158. In that case a Patwari, while handing over charge to his successor, did not hand over the receipt book to him. The accused was prosecuted and convicted for having committed offence under section 409 of the Indian Penal Code by the trial Court. The conviction was upheld upto High Court. The accused filed an appeal to the Supreme Court. Their Lordships of the Supreme Court remarked :

"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 receiptbook. It is quite possible the appellant might have lost or mislaid the receiptbook 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 receiptbook. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receiptbook 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 S. 409."

Thus it is possible that the accused might have lost the unused tickets. Unless there was clear evidence to the effect that the accused had realised the amount of the bus tickets which he failed to return, he cannot be said to have been entrusted with any money by any person or to have misappopriated the same.

For the foregoing reasons, I accept the present revision petition and set aside the conviction and sentence of the petitioner. Fine, if paid, be refunded to him.

Revision allowed.