S. Durai vs State by S.H.O.C.C.I.W. Cuddalore-I

Swamidurai, J.—The accused, who is a salesman in the South Arcot Saravanabhava Consumers Co-operative Wholesale Stores,

Cuddalore is the Petitioner. He was convicted for an offence punishable u/s 409, I.P.C. for having allegedly misappropriated a sum of Rs.

10,606.48. When he was questioned by the trial court, he pleaded guilty and so, learned Chief Judicial Magistrate, Cuddalore accepted his guilt,

convicted and sentenced him u/s 409 IPC to suffer rigorous imprisonment for a period of six years and also to pay a fine of Rs. 1,000/- in default

to undergo rigorous imprisonment for three months.

He filed an appeal before learned Sessions Judge, Cuddalore in C.A. No. 107 of 1988 and the same was dismissed. Aggrieved by the

judgment of the lower courts, this revision is filed.

In this revision, learned Counsel for the Petitioner contended that the accused has not committed any offence u/s 409 I.P.C. and if at all he could

be punished u/s 408, IPC. Learned Counsel for the revision Petitioner further contended that simply because the accused has nodded his head

admitting the offence, the trial Court still has got a duty to find out from the facts of the case under what section of IPC the accused has committed

an offence.

Sections 408 and 409, IPC read as follows:

Criminal Breach of trust by clerk or Servant: Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner

entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of the property shall be

punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Criminal breach of trust by Public servant, or by banker, merchant or agent.

Whoever, being ""in any manner entrusted with property, or any dominion over property in his capacity of a public servant or in the way of his

business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished

with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The accused is not a public servant, nor is he a banker, merchant, factor, broker, attorney or agent, as defined u/s 409 I.P.C.

Learned Additional Public Prosecutor has contended that the accused can be brought under the definition of the ''agent'' u/s 409 IPC and the

conviction and sentence imposed by the lower Courts can be upheld. The word ''agent'' has got a different connotation in law under the Indian

Contract Act. The accused was only selling articles in the Co-operative Society and he cannot be brought under the definition of ''agent'' u/s 409,

IPC. At the same time, there is no material to hold that the accused is a public servant also as per Section 409, I.P.C. from the nature of work for

which he was employed the accused can be said to be a servant working in the said Co-operative Society, as defined u/s 408, IPC. Therefore, the

trial Court, on the admission of guilt of the accused, could have convicted him u/s 408, IPC and should not have convicted him u/s 409 I.P.C. The

charge itself is not accordingly based on the facts of this case.

Learned Additional Public Prosecutor pointed out that S. 464 Code of Criminal Procedure will come to the rescue for the prosecution, S. 464

Crl. P.C. reads as follows:

Effect of omission to frame, or absence of or error, in charge:- (1) No finding, sentence or order by a court of competent jurisdiction shall be

deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any

misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of Appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after

the framing of the charge:

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of

the facts proved, it shall quash the conviction.

In support of his contention, learned Additional Public Prosecutor points out the judgment reported in Tarachand v. Superintendent of Central

Excise, Bangalore. 1971 M.L.J. (Crl.) 534 The Supreme Court had an occasion to consider the scope of the powers of the High Court u/s 537(b)

of (Old) Code of Criminal Procedure In paragraph 14, the Supreme Court has observed as follows:

The Appellant never complained that + this charge was vague or outside the complaint. Indeed in his statement in Court the Appellant has admitted

all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the Appellant''s case within the mischief of rules 126(H)

(2)(d) and 126(P)(2). Rule 126-H(2)(d) has already been reproduced earlier. Under Rule 126-P (2)(ii) whoever has in his possession or under his

control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months

and not more than two years and also with fine. All the relevant salient facts alleged by the Prosecution having been admitted by the Appellant

there can hardly be any question or prejudice having been caused to him by the wide language of the complaint and the charge, assuming the

language to be wide. This argument is accordingly repelled.

So, based on this judgment, learned Additional Public Prosecutor contended that the conviction and sentence need not be set aside, since the

accused himself has pleased guilty before the trial Court and that the only course open to this Court u/s 464, Code of Criminal Procedure is to

order retrial from the point immediately after the framing of the charge or a new trial to be commenced upon a charge framed in whatever manner it

thinks fit, provided that if the Court is of opinion that the facts of the case are that no valid charge could be preferred against the accused in respect

of the fact proved, it shall quash the conviction.

The judgment of the Supreme Court quoted above was passed in a case where there was a full trial and the accused in that case never

complained that the charge was vague or outside the complaint. In this case, there was not trial at all and therefore, there was no opportunity for

the accused to complain that the charge was vague or outside the complaint. In such circumstances, I do not think that S. 464, Code of Criminal

Procedure is attracted to the facts of the present case. The Supreme Court had no occasion to consider the situation where the accused pleased

guilty at the first instance itself without any trial. Here, the accused had complained immediately that the charge is vague and outside the complaint.

In such circumstances, the conviction and sentence imposed by the trial Court, even though the accused had pleaded guilty u/s 409 I.P.C. cannot

be upheld.

In addition to that, the accused had also paid the entire amount alleged to have been misappropriated by him. The offence had also taken place

in the year 1984. The prosecution will not have any prejudice, since the amount has been paid.

In the circumstances, the revision is allowed; the conviction and sentence are set aside and the accused is acquitted. The fine amount, if any,

paid, is directed to be refunded to the accused.