Pausu Ram vs State

D.B. Lal, J.—This rule in revision has been obtained by Pausu Ram against his conviction u/s 409 of the Indian Penal Code by the Chief Judl. Magistrate, Kulu, and his order of conviction has been confirmed in appeal by the Sessions Judge, Mandi. The prosecution case was, that Pausu Ram was appointed Tehsil Welfare Officer for Kulu district during the year 1964-65. The then Punjab Government sponsored a scheme of subsidised purchase of land for the harijans and backward sections of the society under its Welfare Deptt. According to the scheme, part of the price for land was to be paid as a subsidy by the Government. The balance of price was to be paid by the Land Mortgage Bank and they were to extend it as a loan repayable on easy installments. The particular individual to whom this facility was to be granted had to deposit either Rs. 200/- or Rs. 205/- as share money with the Land Mortgage Bank. Upon such deposit only, the Bank was to advance payment. In that connection the Tehsil Welfare Officers were required to go to villages and collect amounts from deserving persons. Accordingly this work, was entrusted to Pausu Ram who was Tehsil Welfare Officer and he collected various amounts of Rs. 200/-or Rs. 205/- from several persons including Sangatu, Man Dass, Mohan Lal, Gurdwaru, Tulsu, Maghu, Karmu, Chanduand Nupu. Instead of depositing the amount with the Land Mortgage Bank, Pausu Ram kept it for himself and also misappropriated the same. These persons naturally made a complaint to the District Social Welfare Officer. After retention of the money with him for about two years Pausu Ram returned the amounts to first five of the above named persons. As regards the remaining four he did not return any amount, rather gave them pronotes in lieu of that money. All this gave rise to the prosecution of Pausu Ram u/s 409 of the Indian Penal Code.

The prosecution produced all the nine persons named above besides Shri Avtar Singh Sandhu (P.W. 13). Director, Social Welfare.

The accused produced Bhagwant Singh (D.W.I) scribe of the receipt written by Maghu, and Tek Ram (DW. 2) Lamberdar who is a marginal witness of the said receipt. It was submitted by the accused that the amount was actually returned to Maghu and was no longer due from him.

The learned Magistrate, however, believed the prosecution evidence and convicted Pausu Ram u/s 409 of the Indian Penal Code and awarded him six months rigorous imprisonment with a fine of Rs. 500/-. The accused came in appeal before the learned Sessions Judge and his conviction was maintained but the sentence of imprisonment was reduced to three months and the fine was enhanced to Rs. 1,000/-. Pasu Ram has felt aggrieved of that decision and has obtained the present rule in revision.

The learned Counsel contended strenuously that although entrustment of money was proved, yet misappropriation or conversion by the accused to his own use was not proved. To constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. Thereafter it has to establish that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do. Regarding entrustment there may be a case where the public servant himself creates a trust and it is not necessary that the trust must be created in a legal manner or that it should be so accepted. In the grounds of revision (c) and (e) of paragraph 1 it has been stated that under the scheme it was the duty of the District Welfare Officer to collect share money and further to deposit the same in the Land Mortgage Bank. In Clause (e) it is stated that the District Welfare Officer passed on the written orders to the Tehsil Welfare Officers working under him to collect the share amount. In the very same grounds of revision a proforma of the receipts issued by Pausu Ram is given under Clause (1) of paragraph 1. This proforma indicates that the accused gave out in writing that the amount was to be deposited with the Primary Land Mortgage Bank, Hoshiarpur. Therefore, it is evident that entrustment of money took place and the trust was that the accused was to deposit the amount in the Land Mortgage Bank and in case the loan was not to be advanced for any reason, the said amount was to be returned back to the person making deposit. The accused did neither in the present case. In the cases of Sangatu, Man Dass, Mohan Lal, Gurdwaru and Tulsu no doubt the amount was paid back but it was done after two years and that was only when these persons complained against the accused to the District Welfare Officer. The misappropriation did take place for a temporary period of time. As regards Maghu, Karmu, Chandu and Nupu the amounts were not even paid by the accused. This was a clear case of misappropriation or conversion committed by the accused.

The two Courts below have found as a matter of fact that Maghu was not paid although a receipt Ex. D.l was obtained from him. The reasoning was that pronote Ex. P.W. 1/C in favour of Maghu was executed by the accused. If the amount was paid, what for the pronote was executed. As regards Karmu, Chandu and Nupu, the case in defence was that these persons never paid the amount. Again the accused executed the pronotes Ex. P.W. 2/A., P.W. 3/A and Ex. P.W. 4/A, dated 23-6-1965 in favour of these three persons. If the amounts were not paid by them to the accused what for these pronotes were executed. This Court while sitting in revision will not make a fresh appraisement of evidence unless that is required to prove any miscarriage of justice. There was evidence in proof of the fact that the amounts were paid by these three persons and the said amounts were not returned when they submitted the complaints, the accused approached them and gave them the pronotes. All these facts accepted upon evidence by the two courts below cannot be disbelieved merely as a result of fresh appraisement of evidence. Therefore, in respect of these four persons the accused did commit criminal misappropriation. He was obviously a public servant and as such the offence u/s 409 of the Indian Penal Code was made out.

The learned Counsel then contended that by the execution of the pronotes a new relationship of creditor and debtor cropped up between the accused and these persons. That may or may not be the case but the fact remains that the amount was entrusted to the accused in the capacity of public servant and the said amount he misappropriated or converted to his own use. It was only subsequently that the pronotes were written so that the payments could be facilitated to these depositors. That will not efface out the offence of criminal misappropriation u/s 409 of the Indian Penal Code. It is different matter that a civil liability was created to safeguard the payment.

In this view of the matter I do not find any substance in the arguments of the learned Counsel. The offence u/s 409 of the Indian Penal Code was clearly made out. The petition is dismissed and the conviction and sentence of Pausu Ram u/s 409 I. P.C. is maintained.