Inder Mohan Pal Singh vs State of Punjab and anr.

S. S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) relates to quashment of criminal proceedings initiated against the petitioner on the basis of first information report, lodged by the petitioner himself on 18th August, 1987 and the order of the trial Court dated l9th November, 1988, whereby charge under Sections 409 and 182 of the Indian Penal Code was framed against him.

In brief, the facts relevant for the disposal of this case are that the petitioner, while posted as Manager of the Punjab and Sind Bank Branch of Bathinda (for short referred to as `the Bank''), got a case registered with the Police vide his letter dated 18th August, 1987. According to the allegations in the first information report, M/s. Oriental Motors, Bathinda, through its partner Dilbhajan Singh, had been availing of credit facilities, i.e.,hypothecation limit of 70 lacs and letter of credit limit of Rs. 80 lacs, from the Bank. In consideration of said facilities, Dilbhajan Singh, as partner of the said firm, executed security documents, and also created equitable mortgage in respect of his various properties at Bathinda and Sriganganagar as well as pledged F.D.Rs. for Rs. 8 lacs in the names of partners of the said firm, and letters of credit and negotiated documents worth Rs. 1,17,432 were also pledged with the said Bank. All these security documents concerning the aforesaid facilities provided to the said firm along with other security documents were kept in filing cabinet lying in strong room of the Bank, as per routine. It was further alleged that on 17th August, 1987, when the petitioner wanted to see those documents, for preparing statements of letters of credit, it was found that all the security documents, regarding the said credit facilities, and title deeds were missing, and the filing cabinet seemed to have been mishandled by some miscreants. According to the petitioner, some unknown person, in order to cause loss to the Bank, had stolen all the security documents from the Bank premises.

The petitioner was arrested in the said case on 27th November, 1987, and after investigation, he was held responsible for the loss of the aforesaid security documents. The Police filed challan in the Court of Chief Judicial Magistrate, Bathinda, who vide his impugned order dated 19th November, 1988 (Annexure P.5/A) framed charge under Sections 409 and 182, Indian Penal Code. Counsel for the parties were heard.

It was mainly contended on behalf of the petitioner that the petitioner was falsely involved in this case by the local Police, who was under the influence of Dilbhajan Singh, partner of the said firm; that the case was reinvestigated by Shri S.K. Sharma, Superintendent of Police (Detective), Bathinda, who, in his detailed report mentioned that there was no evidence to implicate the petitioner, but the case against him was not withdrawn.

It is settled law that the first information report and proceedings initiated against the petitioner, on the basis of the impugned report, including chargesheet, can be quashed only if there is no evidence, or material on record against the petitioner for commission of offences under Sections 409 and 182 of the Indian Penal Code. Thus, report of the Superintendent of Police (Detective) after reinvestigation alone, would not be sufficient to exonerate the petitioner in respect of commission of aforesaid offences.

Faced with this situation, it was mainly contended that from the material collected against the petitioner, or even according to the allegations made against the petitioner, no offence either concerning commission of criminal breach of trust, or under Section 182 of Indian Penal Code, has been made out against him.

Admittedly, all the security documents, relating to the credit facilities extended to the aforesaid firm were kept in the filing cabinet of the strong room of the Bank. During the investigation it had come to light that the keys of the filing cabinet, in which the title deeds and other security documents had been kept, remained with the accused. Thus, he alone had access to the documents. Mere contention of the defence counsel that the two keys of the strong room remained in the possession of the second Manager and Cashier of the Bank, would not be sufficient at this stage to hold that no prima facie case has been made out against the petitioner.

It was next contended on behalf of the petitioner that the title deeds or other security documents creating equitable mortgage, or pledged or hypothecated with the Bank, were not capable of conversion by the petitioner for his own use. Nor, mere loss of such documents, without any further material to connect the accused with the commission, of criminal breach of trust, would make out a prima facie case against the petitioner under Section 409 of the Indian Penal Code. It is true that there is no direct material to prove that the petitioner had dishonestly misappropriated, or converted to his own use the title deeds, and other security documents, referred to above.

As far as entrustment of the title deeds and other security documents referred to above, with the petitioner, in his capacity as Manager of the Bank, is concerned, there is no dispute. Thus, prima facie the first ingredient of entrustment in order to make out a prima facie case for commission of criminal breach of trust, as defined in Section 405, Indian Penal Code, is made out. The next important ingredient, according to the respondents, is the dishonest use, or disposal of valuable title deeds and other security documents in violation of duty cast on the petitioner as Manager of the Bank, to keep those documents in his safe custody. Since the petitioner himself is solely responsible for the loss of aforesaid valuable title deeds and security documents from the filing almirah, over which he exercised complete control, a prima facie case in respect of second important ingredient under Section 409, Indian Penal Code, is also made against the petitioner. I am supported on this point by authority in Surendra Prasad Verma v. The State of Bihar, AIR 1973 Supreme Court 488, where the cashier was in possession of the Iron safe with all its three keys, two of the outer door and one of the inner drawer, and all the duplicate keys were inside the safe at all the relevant times. The cashier must be held under a duty to account for the contents of the safe including the cash, and if the cash was embezzled, he must be held either as a party or privy to the extraction of cash from the safe. In the absence of any evidence to show that he had parted with the keys of the outer door, he must be held guilty under Section 409.

Even otherwise, as held in Jai Krishnadas Manohardas Desai and another v. State of Bombay, AIR 1960 Supreme Court 889, to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the 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.

Counsel for the petitioner relied upon the authority in case Sarda Singh v. State of Haryana, AIR 1977 Supreme Court 1766 where the accused, a Patwari, was admittedly entrusted with the receipt book, or in any event with dominion over it, but there was no evidence to establish that he dishonestly misappropriated the receiptbook, or converted it to his own use, or dishonestly used, or disposed of the receipt book. It was observed that it was quite possible that the accused 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 required was something much more than mere failure, or omission to return the receipt book. The prosecution had to go further and show that the accused dishonestly misappropriated, or converted the receiptbook to his own use, or dishonestly used, or disposed of it.

The facts of the aforesaid authority in Sardar Singh''s case (supra) are entirely different as compared with the facts of the case in hand, in which the Bank Manager is said to have committed criminal breach of trust in respect of valuable title deeds and other security documents relating to pleading/hypothecation, or creation of equitable mortgage in respect of substantial, and valuable properties in favour of the Bank on behalf of the aforesaid firm, which enjoyed credit facilities to the extent of Rs. 80 lacs. The authority in Sardar Singh''s case (supra) is not applicable to the facts of the case in hand, and is clearly distinguishable.

Since no complaint has been made in writing by a public servant no cognizance of the offence under Section 182, Indian Penal Code can be taken against the petitioner by the trial Court on the basis of report of the Police under Section 173 of the Code alone. Thus, in the instant case the trial Court had no jurisdiction either to take cognizance of commission of offence under Section 182 Indian Penal Code, or to frame any such charge against the petitioner, in view of the authority in case Daulat Ram v. State of Punjab, AIR 1962 Supreme Court 1206. The charge under Section 182, Indian Penal Code, framed against the petitioner, is illegal and without any jurisdiction, and the same is ordered to be quashed.

For the foregoing reasons the trial against the Petitioner under Section 409 Indian Penal Code, would proceed according to law. It is, however, clarified that nothing observed herein for the disposal of this petition would, in any manner, affect the merits of this case.

This petition is partly allowed to the extent indicated above.

Copy of this order be sent to the trial Court forthwith.