Harcharan Singh vs State of Punjab

V.S. Aggarwal, J.

The present revision petition has been filed by Harcharan Singh (hereinafter described as the petitioner) assailing the judgment of the learned Chief Judicial Magistrate, Sangrur dated January 30, 1986 and that of the learned Additional Sessions Judge, Sangrur dated November 17, 1987. The learned Chief Judicial Magistrate had held the petitioner guilty of the offence punishable under Section 409 Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for one year. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Sangrur.

The relevant facts are that the petitioner was working as a Storekeeper of the Punjab School Education Board Sale Depot at Sangrur. The verification of the articles of the store and the accounts was done under the orders of the Punjab School Education Board from February 02, 1981 to February 09, 1981. The audit party reported that there was shortage of books and forms worth Rs. 92,216.77. This shortage was alleged to have occurred while the petitioner was in custody of the said articles and was posted as Storekeeper. The petitioner had admitted the shortage in writing. A report in this regard was made to the Police Station and First Information Report was recorded against the petitioner. The actual checking and physical verification of the stock was undertaken by Sadhu Ram in presence of Piara Singh, Kishan Lal Khanna and Mangat Rai. After the investigation was completed, report under Section 173 Code of Criminal Procedure was submitted.

The learned trial court prima facie found that offence under Section 409 Indian Penal Code was drawn. A charge was framed against the petitioner, to which he pleaded not guilty and claimed a trial. The defence of the petitioner was that checking was not done in his presence, he was not entrusted with the books and forms nor he had committed any criminal breach of trust. The learned trial court as well as the learned Additional Sessions Judge on appraisal of the evidence found that the shortage occurred while the petitioner was the Storekeeper. Once it is proved that the petitioner was entrusted with these articles, he is liable for the shortage and accordingly they held the petitioner guilty of the offence punishable under Section 409 Indian Penal Code. Hence the present revision petition.

The main argument advanced by the learned counsel for the petitioner has been that even if it be assumed for the sake of argument that shortage occurred while the petitioner was the Storekeeper, still when there is nothing further that has been proved, it cannot be taken that offence under Section 409 Indian Penal Code is proved.

To appreciate the said argument, reference can well be made to the relevant provisions of law. In this regard, shorn of explanations 1 and 2 to Section 405 of the Indian Penal Code reads :

"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, 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 its "criminal breach of trust".

Section 409 of the Indian Penal Code provides that whoever, being in any manner entrusted with the property or the dominion over the property in his capacity as public servant commits criminal breach of trust can be punished under the said provision.

It is obvious from aforesaid that firstly there should be entrustment of the property and secondly, which is important in the facts of the present case, it must be established that the said person has misappropriated that property and that too dishonestly. The expression `dishonestly'' has been defined under Section 24 of the Indian Penal Code and reads :

"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".

It is obvious from aforesaid that a person can be said to have dishonestly misappropriated goods, the act should be with an intention to cause wrongful loss to one person and wrongful gain to the other. In other words, the presence of mens rea or intentionally doing the said wrongful act is a sine qua non in this regard.

The Supreme Court has considered this question in the case Janeshwar Das Aggarwal v. State of Uttar Pradesh, AIR 1981 Supreme Court 1646. In the cited case the entrustment of the certain articles in the godown was proved. There was no evidence direct or circumstantial to show that accused has misappropriated any of the articles in the godown. It was held that the accused could not be presumed to have misappropriated the articles on the ground that he failed to give any explanation for the shortage. The Supreme Court had held:

"Before a conviction under Section 409 Indian Penal Code can be recorded, the prosecution must prove two essential facts, (1) the factum of entrustment and: (2) the factum of misappropriation of the entrusted articles. Even if it be assumed that entrustment was proved in this case, there is absolutely no evidence to show, either direct or circumstantial, that the appellant had misappropriated any of the articles in the godowns. As the godowns were open and accessible to all and sundry, the possibility of the goods having been pilfered or stolen away by others cannot be excluded. The High Court was, therefore, clearly wrong in holding that as the appellant has not given any explanation for the shortage, he must be presumed to have misappropriated the articles kept in the godowns."

Same question was considered by this court in the case State of Punjab v. Jaspal Singh, 1991(3) Recent Criminal Reports 547 . Accused in the said case was working as Manager of stores. Certain irregularities and discrepancies in storing of goods and maintaining of registers was noticed. It was held that it cannot be termed that it is a clear misappropriation contemplated under the Indian Penal Code. A Division Bench of the Himachal Pradesh High Court in the case State of Himachal Pradesh v. Ritu Raj, 1992(3) Recent Criminal Reports 559 was again concerned with a similar situation. There was a shortage of Rs. 41,000/ found on stock checking. The salesman was prosecuted for the offence punishable under Section 409 Indian Penal Code. There was no allegation that the accused in that case had forged any document and misappropriated the sale proceeds. In the absence of dishonest action, the acquittal was held to be proper.

With this backdrop reversion to the facts of the present case would be appropriate. All that the prosecution established is that the petitioner was incharge of the store and some shortage was noticed. Beyond that it is not established that the petitioner dishonestly misappropriated the goods or not. In certain facts some presumption in this regard would be permissible, but when there is nothing beyond the facts stated above and it is not established that he had dishonestly misappropriated the articles, the conviction as such cannot be sustained. Necessary ingredients of Section 405 read with Section 409 Indian Penal Code were not established.

For these reasons, the revision petition is accepted. The judgments of the courts below are set aside. The petitioner is acquitted awarding the benefit of doubt.