Shri Ganesh Chandra Dihingia vs D.S.P.E. (CBI)

M. Sharma, J.—This Appeal has been preferred by the Appellant against the judgment and order passed by the Special Judge, Assam, Guwahati on the 13.7.83 in Special Case No. 11 of 1978.

The prosecution case in brief is that the accused Appellant was posted as Senior Cashier in pay beat No. 10 of Dibrugarh Pay Office of N.E. Railway. The Appellant received a total sum of Rs. 1,20,711.91 paise against 20 bills from Railway for payment of various employees in the month of October and November in 1977. He made payment of Rs. 81,620.36 out of the total amount against 3 bills, by 26.11.77, and remaining balance of Rs. 39,091.55 along with Rs. 37.60 being the value of 188 Revenue stamps of 20 paise each, total leftover amount being Rs. 39,129.15 which supposed to be with him.

The Appellant was imputed with allegation of misappropriation of said remaining amount of Rs. 38,151.94 as during physical verification of his cash balance on 23.5.88 a sum of Rs. 977.21 found as against Rs. 39,129.15 paise and charge was framed against him u/s 409 I.P.C. and Section 5(2) read with Section 5(1)(c) of the Prevention of Corruption Act, 1947.

In this appeal Appellant has challenged the sanction order as not valid sanction order under the law. Further grounds of challenge are that - (a) Appellant was not entrusted with the property in question in capacity of being a Public servant; (b) that Appellant dishonestly or fraudulently misappropriated or otherwise for his own, used the said property.

On the point of sanction, I reappreciated the materials on record. PW. 2, 54 and 55 and the document Ext. P/59. The prosecution obtained sanction from the Principal Adviser and Chief Accounts Officer (P.W. 54), N.F. Railway u/s 6(1)(c) of the Act, Admitted position was that the P.W; 54 was competent to give sanction order. Evidence of P.W. 2 and P.W. 55 are categorical and corroborated each other. It was disclosed that the sanctioning authority examined the case discussed the matter, that all the documents of the case were produced before P.W. 54 and the same were examined personally, that P.W. 54 himself dictated the sanction order, that facts mentioned therein are correct as per the record examined by him. I found the sanction order was a speaking order containing all facts pertaining to the alleged offence. The submission of Mr. Agarwalla, learned Counsel for the Appellant, that the sanctioning authority did not apply its mind and did not give any ground of his satisfaction before granting the purported sanction, is not sustainable as I, as discussed above, hold that evidence of the witnesses are clear and categorical. I find no material to lake a different view taken by the trial court. There is no dispute that sanction is not an idle formality or an acrimonious exercise but a solemn and sacrogant act which affords protection to Government servant against the frivolous prosecution. On the materials on record, the concerned authority after careful examination granted sanction to prosecute the Appellant. Moreover the submission of the learned Counsel for the Appellant that as offence under I.P.C. and P.C. Act are on different footings the sanction u/s 6 of P.C. Act cannot suffice the purpose of a sanction required to be given for prosecuting the accused u/s 409 I.P.C, is misconceived and devoid of any force or substance. Perusal of Ext. P/59 clearly shows that both the offence under I.P.C. and P.C. have been covered and separate sanction for separate offences under separate Act are not required when the offence u/s 409 I.P.C. have been read with the said sections of the Act. For all practical purposes the offence u/s 5(1)(c) of P.C. Act and Section 409 of IPC are one and the same, under the provision of Section 26 of General Clauses Act, it becomes incumbent on the prosecution Agency to prosecute the Public Servant under the General Law or the Special Law, joint trial u/s 409 I.P.C. and Section 5(1)(c) is legal. If prosecution decides to do so, it will be proper to do so. In the same light separate sanction for prosecution on two heads of the sections of two different states are not the intention of the legislature. In that view of the matter I uphold the finding of the trial court.

The next point regarding entrustment, the materials on record are the evidences of P.W. (1) Shri D.K. Chaterjee; P.W. 2 Shri G.P. Verma; P.W. 52 Shri K.R. Kundu and the documentary evidence are Ext. P/5, 6, 7, 8, 9, 10, 12 to 33. The three prosecution witnesses in their depositions stated that the cashiers are the custodians of the cash received by them and it is their duty to make the disbursement I as per the bills and return the bills, both paid or unpaid, alongwith the unpaid cash, If any, to the Divisional Cashier or the Assistant Divisional Cashier. That they are also required to submit a statement of asset and liabilities to the above authorities showing their position of payments etc., These witnesses stated that the accused-Appellant Dihingia received Rs. 1,20,711,9, paise concerning 20 bills from P.W. 1 Assistant Divisional Cashier during the period between 3.10.77 to 17.12.77. All the amounts were duly entered by (he accused Appellant in his own hand in his cash book (Ext, P/9, F/l 2, P/l 3). The receipt of the aforesaid bills and amounts have not been disputed by the accused, but the facts has been clearly admitted by him in his: statement u/s 313 Code of Criminal Procedure. The entrustment of Rs. 1,20,711,91 paise to the accused was establishment by those documents. The entrustment of the amount to the accused Appellant has been proved beyond reasonable doubt in his capacity as a Public Servant. Mr. Agarwala, learned Counsel for the Appellant has made an attempt to show that from the evidence it was clear that either the Divisional Cashier or the Assistant Divisional Cashier is the drawing and disbursing officer and therefore the Appellant can not be said to have been entrusted with the money in question: that Appellant was simply a pay clerk, whose duty was to pay the amounts to the persons concerned as directed by the Assistant Divisional Cashier. This argument does hold good as in his statement recorded u/s 313 Code of Criminal Procedure. in question No. he admitted this entrustment. Evidence of P.W. 1 is categorical and each of his statement was proved and corroborated with documentary evidence which were exhibited in the trial. From the stand of defence in the trial, it is evident that, Appellant was entrusted with the money, but as he had to take leave due to his indisposition he left the remaining amount in the Ironsafe alloted for that purpose in his room, namely beat No. 10 Chamber, and when he joined after recovery money was not found there and the Ironsafe was in a broken condition, purpose of which was to prove that money has been taken away by breaking the Iron safe. On the above reason I hold that the amount of Rs. 1,20,711.91 was entrusted to the Appellant as Public Servant for payment to the concerned persons.

The main point for consideration is whether the allegation of misappropriation of remaining Rs. 38,151.94 has been established beyond reasonable doubt.

The finding of the trial court was that prosecution had been able to establish the non payment of Rs. 24,117.88. But on the order hand trial court found that prosecution had not led any specific evidence to establish the individual non payment of the bills and as the defence did not dispute the non-payment of the bills and therefore non payment become apparent from the bills themselves. I find: sufficient force in the submission of Mr. Agarwal that prosecution can not bring: home the offence merely on the non submission at the point in the trial. Prosecution has to establish its own case beyond reasonable doubt on the basis of the material on record; that trial court''s view mat this lacuna on me part of me prosecution can not dislodged the foundation of me prosecution case. The trial court apparently relied on the evidence of P.Ws 1, 2, 3, 9, 14, 41 and 55 the on the documentary evidence namely Ext. P/13, 11(4), 13(8), 14,15, 15(1)(2), 25, 29(1X2), 47,48 49(2), 50, 50(4)(5)(6)(7), (8)(9), 51, 51(8)(9)(10)(11)(12)(13)(14), 52,58 Those materials as seen whether sufficient to prove the shortage and non disbursement of Rs. 38,151.94 alleged by the persons which were alleged to have not been paid their dues were not examined. Other infirmity of the prosecution as alleged in this regard was that, as to who were the persons, who were not paid their dues out of the aforesaid bills, namely, Ext. 14 to 33. Moreover prosecution''s stand seemed to be wicked as it failed to pin point which were the bills out of those 20 bills, in respect of which the shortage of Rs. 38,151.94 took place.

Regarding the misappropriation of Rs. 38,151.91 the material witness was Shri N.K. Barua P.W. 41. His evidence on record was that Appellant on 18.11.77 handed over him two bills-Ext. P/15 and P/29 for Rs. 13,014.83 and Rs. 11.103/- respcctively and he made payment of those bills on the same day. The practice followed in this respect has been disclosed in accused''s answer to his question No. 15 recorded u/s 313 Code of Criminal Procedure.

As emerges from the materials on record, it is to be considered whether allegation of misappropriation against the accused Appellant has been based on suspicion only. In a criminal case prosecution has to bring home the prosecution case beyond reasonable doubt and mere suspicion and inferences can not be drawn by court to the prejudice of the accused. Mr. Agarwala, learned Counsel for the Appellant has submitted that as the prosecution failed to establish the misappropriation of Rs. 38,151.94 by not producing any specific evidence the trial court only on suspicion convicted and sentenced the accused without evidence.

Records shows that after entrustment of the amount for payment as discussed above, the Petitioner paid some amount to the persons and took leave on 21.11.77, leaving an amount of Rs. 38,151.94 as non disbursed. It is also evidence on record that the Appellant when took sick leave he did not hand over the cash to P.W. 41 N.K. Barua. In his statement recorded u/s 313 Code of Criminal Procedure. (Answer to question No. 44) Appellant admitted that his safe and strong room was kept locked by him. The stand of the accused has been taken in the answer to question No. 77 of the statement u/s 313 Code of Criminal Procedure wherein his case was that on his joining date on 16.1.78, Assistant Divisional Cashier asked him to hand over charge to K.K. Das P.W. 10 when he came to Dibrugarh on the same day and prepared papers ready for charge report, he went to open the lock of his strong room and found the lock defective, opened the embodded safe inside the strong room and the same was found defective and keys could not be fitted properly; that when could open after sometime Rs. 40,000/- kept by him therein found missing. The correctness of this explanation of the accused has to be examined from the materials on record, The accused informed K.K. Das (P.W. 10) this fact and immediately rushed to Tinsukia and met P.W. 1 and reported the matter who advised him to go to Maligaon to report. P.W. 1 also accompanied the accused to Maligaon. On this point whether trial courts finding can be accepted as he disbelieved this statement holding that the matter was not reported to P.W. 10 nor this fact was disclosed in Ext. P/48. Trial court arrived to its finding further taking into consideration of the memorandum of Inspection prepared on the basis of the Dibrugarh Pay Office on 26.5.83.The said local Inspection report indicated that the trial court did not find any evidence of tampering with the locks during local Inspection on 20.5.83, which was apparently made after a long lapse of time of alleged occurrence of temparing with locks. Apparently prosecution did not contest this plea to prove beyond reasonable doubt that the defence explanation was false. This statement recorded u/s 313 Code of Criminal Procedure has been corroborated by the oral evidence of P.W. 1 and fact of informing the. aforesaid facts were not disputed or disapproved by prosecution ; rather evidence of P.W. 41 N.K. Borua supported the statement (Question No. 62) which categorically stated that present (at the time of giving evidence ) locks of the strong room of Beat No. 10 and the main door were changed as it was found out of order. Apparently on 26.5.83 when the Inspection was made was replaced by new lock. On persual of the Memorandum of local Inspection dated 26.5.83 it was seen that - "A gap of (22 cm. from top frame to wooden batten of the inner door and 16 cm from top frame to brick wall end) at the top of the outer door remains when door is kept looked. it may be possible for a small boy or a very slim man to enter through that gab with some difficulty.

(underline supplied).

further - "The only key of the sale is small in size in comparison to the bigger size of the safe" On this materials on record two views are possible regarding; misappropriation of the amount in question and benefit of it shall go in favour of the accused Appellant.

Regarding plea of sickness the finding of the court below was that accused took false plea of sickness to avoid handing over of charge to P.W. 10 K.K. Das as he had already mis-appropriated the amount by that time. This finding was vehemently challenged by the learned Counsel for the Appellant who has submitted that this finding was based not on evidence on record but based on suspicion and presumption only. In this regard evidence of P.W. 1, 2 and P.W. 10 and Ext. P/43 P/44 are relevant. P.W. 1 ''s evidence was that he received the letter for leave Ext, P/43 from P.W, 2 on 21.12.77 and letter Ext, P/44 from P.W. 2 at Maligaon. The admitted fact was that on 21.12.77, P.W. 1 was at Tinsukia and the letter was issued at Maligaon and there is no evidence on record that when the P.W. 1 received the letter dated 21.12.77 he directed the accused Appellant to hand over charge to P.W. 10. Letter Ext. P/44 is dated 23.12.77 and it was handed over to P.W. 1 at Maligaon. Further admitted fact was that accused was on leave from 23.12.77 to 15.1.78 which shows that no instruction was issued to the accused to hand over charge between 23.12.77 to 15.1.78 as he was on sick leave. Accused admitted that P.W. 1 asked him to hand over charge on 16.1.78, when he went to report his joining at Tinsukia. Therefore no fault can be imputed to the accused for not handing over charge from 17.12.77 to 22.12.77. This can not be strong circumstances to disbelieve the defence story. Further the strong suspicion about truthfulness of the accused lying sick from 21.11.77 and this can not be taken as a circumstance to show that plea of sickness was false. This suspicion was imputed to the accused on the basis that the accused disbursed payment of bills - Ext. P/28 and P/63 on 26.11.77 and 10.12.77 respectively i.e. during his sick leave. But materials on record shows that (Ext. P/28 exhibited by P.W. 1 established that) this exhibit along with receipt shows that there is an endorsement as "passed to Sadar Munsiff receipt No. 15/14 dt. 26.11.77." Apparently the endorsement does not show who has made the endorsement and no signature put below the endorsement. On of the hand receipt No. 34/15 dated 16.11.77 shows that Office of the Sadar Munsiff received the payment from workshop Account Officer. Accused was not the workshop Account Officer. This shows that the accused did not make the payment on the bill Ext. P/28 on 26.11.77. Hence no question of strong suspicion regarding sickness of the accused can be maintained. The relevant materials on record in this regard are evidence of P.Ws. 7, 8, 23 and 52, and Ext. P/58 and P/68. Evidence of P.W. 7 and 8 are belied by the evidence of P.Ws. 23 and 52 who corroborated the defence stand that on those dates accused was not present in Ledo and made no payment; this fact also finds corroboration in the statement of accused u/s 313 Code of Criminal Procedure. Accordingly this cirumstances cannot be taken into consideration against the accused/Appellant.

From the defence stand the fact of theft as emerged, can not be brushed aside as the Inspection Report dated 26.5.85 and the statement recorded u/s 313 Code of Criminal Procedure. has made can be taken out as a case for reasonable probability in favour of the defence than the prosecution evidence. Preponderance of evidence may not be determined by the number of witnesses but by the greater weight of all evidences which docs not necessarily mean the greater number of witnesses.

In the above discussion which was emerged from the facts that, the accused-Appellant was as a public servant was entrusted with-an account of money to make payment but after disbursing some amount, the Appellant took sick leave and was absent for some period. Some amount (according to the accused about Rs. 40,000/- and according to Prosecution Rs. 38,000/- and odd) left undisbursed which was left by the accused in the Safe of strong room of his Beat No. 10. He locked the Safe with the money. When he joined his duty after the sick leave he found the lock tampered and the amount he left was missing from the Safe, Inspection Report dated 26.5.83 gave detailed description of the condition of the Strong room which opined about the probability of entering a small boy or their person through the defective opening. Matter was immediately reported to P.W. 1 and P.W. 10. This evidence have a probability about the mission (sic, missing) of money which is of greater weight and convincing than the evidence which have been opened by the

prosecution.

It is well settled principle of law that when the accused gives reasonable and probable explanation, it is for the prosecution to prove affirmatively, that the explanation is false. As stated above, it is not obligatory on the part of the accused to produce evidence to prove his defence; he can do so on the oral or documentary evidence relied by the prosecution. In that case court required to probe and consider the materials relied upon by the defence instead, of raising adverse against the accused. II is the court who requires to probe the standard of preponderance of possibilities in favour of the accused as prosecution can not make out its ease from the weakness of the defence case. As it is found presence of Petitioner on the dates alleged by prosecution was not sustainable from the evidence of P.Ws. 23 and 52 and Ext. P/28 and Ext. P/63. further, from, the evidence adduced by the prosecution whether from the conduct of the Appellant strong circumstances that accused was avoiding inspection because he did not have the requisite money can be drawn to prove his intention of misappropriation. In this regard except evidence of P.W. 14 Inspector Cashier Shri T.N. Biswas, prosecution attempted to prove that a strong circumstances was found against the accused as he was avoiding inspection of his cash from 18.11.77 to 20.11.77 by absenting himself, because he did not have requisite cash in his hand. Except oral evidence P.W. 14 no other evidence on record available which can be said to be led by the prosecution. This witness only came to verify the accounts. But evidence of P.W. 39 Shri R.K. Roy and documentary evidence, namely, Ext. 83 shows that the accused was present, in the office and made payment to P.W. 39 Shri R.K. Roy vide Ext. P/83. In my view from the evidence of P.W. 4 regarding strong circumstances imputing intention of misappropriation is not sustainable and can not be held that the explanation siren by the accused was false.

As discussed above, the accused had been able to prove that explanation given by him was both probable and reasonable judged by the standard of preponderance of probability, In Rabindra Kumar Dey v. State of Orissa 43 (1997) C.L.T.I. (SC), the Apex Court held that the Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a Criminal charge. It is sufficient if the accused is able to prove his case by the standard of preponderance of possibilities as envised u/s 5 of the Evidence Act, as a result of which he succeeds not because he proves his case to the point but because probability of the version given by him throws doubt on the prosecution case. Therefore prosecution can not be said to have established the case beyond reasonable doubt. That the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of I.P.C. which he seeks to rely. That it is sufficient for the defence to give a version which competes in probability with the prosecution version, for, that would be sufficient, to cast, suspicion on the prosecution case entailing its rejection by the court.

From the above discussion, the finding regarding the misappropriation of Govt. money has to be considered. In AIR 1992 SC 1490 Somnath v. State of Rajasthan the Apex Court held that-

There can be no doubt that before a public servant can be convicted of an offence u/s 5(1)(c) or u/s 409, The property which is said to have been misappropriated must be entrusted to him. The word'' in any manner,'' in the context are significant. The section does not provide that the entrustment of the property should be by some one or the amount received must be the properly of, the person on whose behalf it is received. As long as the accuse is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person, other than the accused, he can be said to be entrusted that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression entrusted in Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person, the property is handed over may be an agent of the person to whom it is entrusted, in which case, the agent comes into possession of it on behalf of his principal, fraudulently mis-appropriate the property. He is none the less guilty of crime to collect money on behalf of Anr. is entrusted with it. A person authorise to collect money when the amounts are paid to him, and through the person paying may no longer have the propriety interest none-the less the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person, so authorise to collect on his behalf.

The full definition of the same u/s 5(1)(c) contains expressly a proposition as to a state of mind. The definition states that the act, i.e. misappropriation, conversion, or allowing any other person to do must have been done dishonestly or fraudulently. Every ingredient of the offence is stated in the definition itself. If the mental element is proved, to have been absent in any given case, the crime, as defined above, is not committed, looked at from Anr. aspect, the offence having been fully defined, nothing amounts to that crime, which does not satisfy that definition. It would indeed be anamolous to hold that while in the case of misappropriation and conversion, the section requires that it must be done either dishonestly, or fraudulently a person ''morally innocent of blame could be held vicariously liable for an assistants crime without there being a dishonest or fraudulent mind.

L.M. Chatterjee Vs. The State of Bihar,

It is not necessary, in every case to prove in what precise manner the accused has dealt with/appropriated the goods of his manner. The question is one of intention and not a matter of direct proof, but giving a false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused. In the case of servant charged with misappropriation of goods of the master, the element of criminal offence of Mis-appropriation will be established if the Petitioner proves that the servant received the goods, that he was under the duty to account to his master and had not done so. If the failure to account due to an accidental loss, then the facts being within the servant''s knowledge, it is for him to explain the loss. If these facts are within his knowledge then he has to prove them. Of course Proprietor has to establish a prima-facie case in the first instance. It is not enough to establish facts which give rise to a suspicion, then by reason of Section 106 Evidence Act, to throw onus on him to prove his innocence. To establish criminal breach of trust, the Proprietor is not obliged to precise mode of mis-appropriation of the properly entrusted to the accused. The principal ingredients of the offence being dishonest misappropriate entrustment of the properly and failure in breach of obligation, to account for properly entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account, for the property entrusted to him, even when a duty is imposed on him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with disintent may readily be made. Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay,

Mr. D.K. Hazarika, learned Special Public Prosecutor has relied his submission pointing the statements of accused recorded u/s 313 Code of Criminal Procedure. supporting the impugned judgment. Mr. Hazarika has urged that the provisions in Section 313 Code of Criminal Procedure. intend to secure to the accused an opportunity to explain the evidence against him and therefore, to benefit the accused and not to operate as to his detriment. It is further submitted that the principle is that before the damaging points in the prosecution evidence are used against the accused for determining his guilt, his pointed attention should be drawn to them one by one in order to afford him opportunity of giving explanation, that from his statement recorded u/s 313 Code of Criminal Procedure. the allegation of misappropriation has been proved, that explanation regarding theft is afterthought which other materials on record accused the circumstances proved otherwise. That both oral and documentary evidence and the strong circumstances has established the prosecution case beyond reasonable doubt. From my discussions, I am constrained to hold that the explanation given u/s 313 Code of Criminal Procedure. are sufficient to raise doubt about the intention of misappropriation, as other related requirements also, such as, use of the money for his own use could not be established. Investigation also could not establish that the mis-appropriated amount was used in his construction of house or in any other way for his personal gain. The evidence appearing against him regarding misappropriation has been explained by the accused. The amount alleged to be misappropriated found missing and the lock was found tampered. The materials on record also corroborates the situations and position of the strong room where possibility of theft can hot be ruled out. In that view of the matter, the submission of Mr. Hazarika that owing to the admission of the guilt as disclosed in the statement u/s 313 Code of Criminal Procedure. the accused can be convicted on his own plea. Allegation of mis-appropriation has been denied by the accused in his statement with a cogent explanation. A case in this nature has to be seen in the totality and it is not safe to presume something and lead the consideration in that line without giving an eye to the other aspect of the total circumstances.

Considering the totality of the materials on record, I am constained to hold that prosecution failed to bring home the charge u/s 409 I.P.C. and Section 5(1)(c) read with Section 5(2) P.C. Act.

His omission to non deposit of remaining undisbursed amount to the authority concerned can not be imputed as intentional omission as an omission not only should be nonaction to be intentional, it should be illegal. As casual inadvertance of duty may lead to loss of property, for that, appropriate alternative action is available against a person to the authority. Money was entrusted to the accused, but his act has neither resulted in wrongful gain to him nor has he acted dishonestly, as from the evidence on record it is established that he can not be convicted for criminal breach of trust. Negligence on the part of accused cannot be ruled out, as he must have been cautious about keeping the remaining amount of money in the safe, when it was shown that the safe in the strong room was not safe for keeping money like that. But negligence on the part of a person in the performance of his duties would not warrant a conclusion of his guilty mind.

From the above discussion even the statement of some witnesses are taken at their face value, they do not satisfy the ingredients of Section 409 I.P.C. and Section 5(2) read with Section 5(1)(c). Prosecution could not bring home the offence of misappropriation beyond reasonable doubt. From the evidence on record it can not be concluded that the strong circumstances proves the offence of misappropriation as evidence only levelled allegations in general terms.

In view the reasons discussed above, I acquit the accused on benefit of doubt u/s 409 I.P.C. and Section 5(2) read with Section 5(1)(c), P.C. Act.

In the result the appeal is allowed.