Ram Pal vs State of Haryana

M.L. Singhal, J.

Prosecution case in brief is that Ram Pal accused was conductor in Haryana Roadway Depot, Faridabad. On 12.6.1939 he was entrusted with bus tickets the denominational value of which was Rs. 5082/. He was to account for those tickets on 13.6.1989 i.e. he was to deposit the amount representing the sale of those tickets. He was to deposit those tickets which remained unsold during the course of journey. He failed to deposit tickets of the denominational value of Rs. 1770/ or the cash equivalent thereof out of the denominational value of the tickets which was Rs. 5082/. Failure to deposit the denominational value of tickets worth Rs. 1770/ or cash equivalent thereof gave rise to the registration of case FIR No. 297 dated 29.8.1989 under Section 409 of the Indian Penal Code against him at Police Station City, Ballabgarh.

Raj Singh, booking incharge vide application dated 1.8.1989 reported the matter and General Manager Haryana Roadways, Faridabad vide application dated 8.8.1989 Ex.PA reported the matter to the police which culminated into the registration of the said case against the accused. After investigation, accused was challaned under Section 409 of the Indian Penal Code.

Accused was charged under Section 409 of the Indian Penal Code by the Judicial Magistrate 1st class, Faridabad. Accused pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, Judicial Magistrate 1st Class, Faridabad vide order dated 29.5.1997 found the charge under Section 409 of the Indian Penal Code against him. He convicted him thereunder and sentenced him to undergo simple imprisonment for a period of six months and to pay fine of Rs. 800/ or in default of payment of fine to undergo further simple imprisonment for a period of one month.

Accused went in appeal to the court of Session. Learned Additional Sessions Judge dismissed the appeal and upheld the conviction and sentence as recorded by the learned Magistrate against him.

Feeling that he has been unjustly convicted and sentenced and has been given a raw deal by the Courts below he has knocked the door of this Court through this criminal revision.

I have heard the learned counsel for the petitioner and have gone through the record.

Accused deposited tickets of the denominational value of Rs. 3312/ cash equivalent thereof on 13.6.1989. On 13.6.1989, he did not account for the tickets of the denominational value of Rs. 1770/. He did not account for whether he had sold the tickets and raised cash equivalent thereof or he had sold some of the tickets and raised cash equivalent thereof and the remaining tickets could not be sold. He went on leave on account of his daughter''s marriage on 13.6.1989. On 23.8.1989, he deposited Rs. 438/ and the remaining unsold tickets. He was required to deposit cash/tickets on 13.6.1989 in their entirety. Case was registered on 29.8.1989 i.e prior to the registration of the case there was nothing against him.

Section 405 of the Indian Penal Code deals with criminal breach of trust. It says 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." The word "dishonestly" has been defined in Section 24 of the Indian Penal Code. It says that, "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". Wrongful gain and wrongful loss have been defined in Section 23 of the Indian Penal Code. Wrongful gain is gain by unlawful means of property which the person gaining is not entitled. Wrong loss is the loss by unlawful means of property to which the person losing it is legally entitled.

In this case there is no evidence that the accused dishonestly retained the amount of Rs. 438/ and the remaining unsold tickets of denominational value of Rs. 1332/. If there had been dishonest intention present in his mind on 12.6.1989 or 13.6.1989, he would have not deposited the remaining Rs. 3312/. In his statement recorded under Section 313 of the Code of Criminal Procedure, accused stated that he was innocent. Due to marriage of his daughter, he was on leave. He deposited the tickets equivalent to the value of Rs. 1770/ including cash with the concerned booking clerk, who assured to deposit the same in the office on 13.6.1989. When accused faithfully deposited Rs. 3312/ where there was dishonesty on his part. If there was any dishonesty on his part, he would have not deposited at all on 13.6.1989. On finding that the booking clerk who had assured to deposit the remaining unsold tickets and the cash of Rs. 438/ totalling Rs. 1770/ did not do so, accused deposited the same on 23.8.1989. Section 409 of the Indian Penal Code punishes the intent and not the act. It is true that at best the unsold tickets and cash totalling Rs. 1770/ remained with the accused for about two months but it was, when the booking clerk had failed to discharge the faith which he had reposed on him. In this case prosecution has failed to prove that accused had brought to his own use the unsold tickets and the cash raised by the sale of some tickets.

For the reasons given above, I am of the opinion that the learned Courts below were not justified in finding the charge of criminal breach of trust proved against the accused and convicting and sentencing him therefor. So, this criminal revision is accepted and the conviction and sentence passed upon him by the two Courts below are set aside and he is acquitted of the charge levelled against him. Fine, if paid, shall be refunded to him.