State of Haryana vs Prem Singh

A.S.Nehra, J.

This appeal is directed against the judgment dated 18.9.1984 passed by the Judicial Magistrate Ist Class, Hansi, vide which the respondents have been acquitted of the charges under Sections 409, 465, 471, 420 and 120B IPC.

The brief facts of the prosecution case are as follows:

In the year 197172 Prem Singh accused was posted as Superintendent of Rural Artisan Training Centre, Hansi, Surender Kumar accused was supervisor, Sham Lal accused was Cashier and Naresh Chander accused was storekeeper. The broad allegations of the prosecution are that some anonymous application was made against the accused alleging that they had misappropriated large amount of Government money by falsification and manipulation of various documents and accounts. The matter was initially enquired into by the departmental accounts officer on whose report the matter was referred and entrusted to the vigilance department for necessary action and enquiry. Consequently, Inspector Chander Bhan investigated the case and submitted his report Ex.PW 19/A to the Senior Superintendent of Police, Hissar. The report of the Vigilance Inspector revealed that a total sum of Rs. 2,36,619.50 paise was embezzled by the accused. According to the report of Chander Bhan, Inspector, Ex. PW 19/A, the above mentioned amount was misappropriated and embezzled by the accused persons. It was further revealed during the course of enquiry that the accused used to purchase certain textile goods from private sources and supplied them to different departments as a product of Rural Artisan Training Centre on false bills and receipts in the name of rural Artisan Training Centre, Hansi.

For the just appreciation of the facts of the case letter Ex. PW 4/1 is material to be mentioned here and in view of the said letter Rural Artisan Training Centre, Hansi was to supply the textile and other goods which were manufactured at the various production wings in Rural Artisan Training Centre situated at Sohna, Hansi, Kaithal and Mohindergarh. The wing at Hansi used to manufacture the following goods :

(i) Textile goods such as bed cover, long cloth, table covers, dusters, curtain cloth, towels, tukish towels etc.

(ii) Leather goods,

(iii) Agriculture implements such as kassies and khurpas etc.

In view of directions in the said letter the Superintendent was asked to comply with the orders received from various departments and in case they were not in a position to supply the same, the noncompliance certificate was to be issued to the indenting officers within 7 days of the receipt of the indents.

According to the prosecution accused Prem Singh, Superintendent in the wing Rural Artisan Training Centre at Hansi supplied various goods to various departments in contravention with the above said directions contained in letter Ex. PW 4/1 and supplied the goods to the department after procuring them from the private sources. Therefore, according to the prosecution, his act was illegal and unwarranted. The other accused persons had also allegedly participated is falsification of accounts, therefore, they were also joined in the investigation.

Originally F.I.R. No. 42 dated 23.2.1974 under Sections 420/409/467/468/471 IPC and Section 5(1) of Prevention of Corruption Act was registered on the letter Ex. PW 19/B.No. 1052 dated 5.2.1974. The case was then investigated by the investigating Agency and on completion of the investigation a report under section 173 Cr.P.C. was prepared and 15 separate challans were prepared against the accused persons under Sections 409/465/471/420/168 and 120B of the Indian Penal Code and 5(ii) Prevention of Corruption Act and the same were forwarded to the Court for trial of the accused persons.

After supplying the necessary copies of documents under Section 207 Cr.P.C. the accused persons were charge sheeted under Sections 409/465/471/420 and 120B of the Indian Penal Code. The accused persons pleaded not guilty and claimed trial.

The prosecution in support of its case examined as many as 33 witnesses and also tendered various documents into prosecution evidence.

Statements of the accused persons under Section 313 Cr.P.C. were recorded, wherein, they refuted the allegations made against them. However, they did not produce any evidence in their defence.

In challan No. 1 it is the charge against accusedPrem Singh that on 12.4.1971 as Superintendent of Rural Artisan Training Centre, Hansi, he received a sum of Rs. 12,931/ which amount was entrusted to him in the capacity of a public servant from the office of the District Education Officer, Hissar, out of which he only accounted for a sum of Rs. 2,931/ in the Cash Book and thereby embezzled and misappropriated the remaining amount of Rs. 10,000/ hence he has committed a criminal breach of trust. The second allegation against him is that in the month of April, 1971 to November 1971, he being a public servant in the employment of Govt. of Haryana, Department of Industrial Training, supplied on different dates textile goods on behalf of rural Artisan Training Centre, Hansi and in lieu of which he received a sum of Rs. 9,665/ on 14.4.71 from District Education Officer, Hissar, out of which Prem Singhaccused embezzled and misappropraited a sum of Rs. 9,000/ by only depositing Rs. 665/ in the cask book.

It is further alleged against all the accused namely, Prem Singh, Superintendent, Surender Kumar, Sham Lal and Naresh Chander that during the period from March 1971 to March 1972, they being public servants cheated the office of District Education Officer, Hissar by dishonestly inducing them to believe that the textile goods supplied by the accused persons were manufactured at Rural Artisan Training Centre, Hansi, whereby, they induced them to make payment for the goods which were not manufactured in the centre and thereby they have been jointly charge sheeted under Section 420 of the Indian Penal Code.

According to the prosecution all the accused persons being public servants fraudulently used as genuine the bills and receipts of different amounts which they knew or had reasons to believe at that time, to the forged documents, therefore, they were chargesheeted under Sections 465/471 of the Indian Penal Code.

A close scrutiny of the prosecution case reveals that accused Prem Singh the then Superintendent of Rural Artisan Training Centre, Hansi was chargesheeted under Section 409 of the Indian Penal Code. Therefore, first of all we propose to discuss and decide the ingredients of Section 409 of the Indian Penal Code.

In order to prove the charge under section 409 of the Indian Penal Code, prosecution needs to prove the following ingredients :

Entrusting any person with property or with any dominion over property.

The persons entrusted (1) dishonesty misappropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or wilfully suffering any other persons so to do.

Further it is to be proved beyond doubt:

That the accused was either a public servant or a banker or a merchant or a factor, or a broker or an attorney, or an agent.

That he was in such capacity entrusted with the property in question or with dominion over it.

That he committed criminal breach of trust in respect of it.

The word ''entrusted'' conveys and includes that the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. In its most general significance all it imports is handing over the possession for some purpose which may not imply the conferring of any proprietary right at all. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and latter must hold it on account of some person or in some way for his benefit.

Keeping in view the above mentioned ingredients of the offence, the evidence brought on record by the prosecution needs to be scrutinised with utmost care and caution to hold the conviction of the accused under Section 409 of the Indian Penal Code.

As it has been already mentioned that prosecution has examined as many as 33 witnesses all of whom are not relevant for the purpose of determination of the proposition of law and facts under this challan. The material PWs whose testimony needs a careful study are as under (challan No. 1).

PW3 Ajit Singh, Clerk and Storekeeper, Rural Artisan Training Centre, Hansi, PW 4 Khan Chand, PW 5 Charan Dass, PW 13 and PW 16 Kapur Singh, Caretaker, Administrative Branch, Chandigarh, PW 15 ASI, Upkar Singh, PW 17 Bal Gobind, PW 19 Chander Bhan, Inspector, PW 24 Sunder Dass, PW 27 Balkar Singh, PW 28 Jaswant Singh, PW 31 Pawan Kumar and PW 32 Sada Nand and PW 33 Ram Chander.

According to the case of the prosecution on 8.3.1971 in compliance with the orders placed District Education Officer, Hissar, vide Px.P 13/E & F the accused supplied the goods worth Rs. 2931/ from the stock of Rural Artisan Training Centre and the goods amounting to Rs. 10,000/ were supplied by him from elsewhere i.e from private sources. The following items were supplied to District Education Officer, Hissar on his indent :

(a) Curtains 50

(b) Table Cloth 100

(c) Towels 30

These items were costing Rs. 2,931/ which were supplied by the accused persons from the balance in the stock register of Rural Artisan Training Centre Ex.P.A. Therefore, there is no dispute regarding these items and the accounting procedure of the same. Accused supplied 500 dari patties, valuing Rs. 10,000/ from out side sources, which were not available on the date of supply in the stock register of Rural Artisan Training Centre, Hansi. It is not disclosed by the prosecution as to from which sources these articles were supplies by the accused to the office of District Education Officer, Hansi i.e 500 dari patties. The bill submitted to the District Education Officer is Ex. P 10 in Bill Book Ex. PH. The counterfoil of this bill contains the figure of Rs. 2,931/ whereas the original bill submitted to the office concerned contains the figure of Rs. 12,931/. On 23.3.1971 a total sum of Rs. 12,931/ was received by accused Prem Singh through RTR Ex. PW 13/A and Ex. PW 13/B and the said amount was allegedly received by him on 12.4.1971 vide Ex. P. 15 but in the cash book Ex. PK vide Ex. P 16 only a sum of Rs. 2,931/ has been accounted for and the remaining amount of Rs. 10,000/ allegedly received by accused Prem Singh vide Ex. P 15 and Ex. Pw 3/A was mis appropriated and embezzled. However, after receipt of the said amount dated 12.4.71 he has accounted for the remaining sum of Rs. 2,931/ in the cash book and it was deposited in the Bank vide entry Ex. P 17 in the cash book Ex. PN on 11.10.1971. According to the prosecution the accused having retained this sum of Rs. 2,931/ from 12.4.71 to 11.10.71 committed embezzlement.

It is to be scrutinised in the present case whether the accused committed breach of trust in respect of the amount of Rs. 10,000/ as discussed above. Further more the transaction of same nature was effected by the accused on 15.3.1971, whereby he supplied towels valuing Rs. 665/ vide Ex. P 19 in bill book Ex. PH to the officer of District Education Officer, Hissar and on the same day vide Ex. P 18 in bill book Ex. PH, 450 dari patties valued at Rs. 9000/ were also supplied to the same office. Ex.P 18 was later on cancelled on 31.3.1971. A perusal of stock register Ex. PJ shows vide entry Ex. P 20 that towels were available in stock at the relevant time, whereas 450 dari patties were not available in the stock. Hence, they were resumbly supplied from out side sources. On 26.3.71 vide Ex.P 21 a sum of Rs. 9,665/ was received by accused Prem Singh, whereas the original receipt Ex. P 21 is for Rs. 9,665/, its carbon copy contains the figure of 665/ only and consequently, vide entry Ex. P 22 at page 72 of cash book Ex. PK on 14.4.71 a sum of Rs. 665/ was only shown in receipts. According to the prosecution a sum of Rs. 9000/ was embezzled by accused Prem Singh. This amount of Rs. 9,555/ was received through RTR No. 276058 dated 26.3.71 (Ex. PW 3/B). The amount of Rs. 665/ was consequently deposited in bank on 29.5.71. Thus according to the prosecution the accused retained this amount of Rs. 665/ from 14.4.71 to 29.5.71 whereby he has committed the offence of embezzlement of this amount and criminal breach of trust in respect of the amount of Rs. 9000/. Therefore, entrustment and misappropriation i.e. the ingredients required to be established and proved under Section 409 of the Indian Penal Code are to be ascertained in respect of the amount of Rs. 10,000/ and Rs. 9,000/ respectively.

Admittedly, the above said amount was handed over to accused Prem Singh by the office of District Education Officer, Hissar taking him as a representative of Rural Artisan Training Centre, Hansi and this sum was taken by the accused for the items which were allegedly procured by him from outside i.e. private sources and were supplied to District Education Officer''s office Hisar. The said amount was not accounted for in the cash book of Rural Artisan Training Centre, Hansi. It is also admitted that there is no evidence on behalf of the prosecution in respect of the source from where the accused purchased the said articles with a view to supply the same to the District Education Officer''s office and in this respect the prosecution case is completely silent.

Learned counsel for the appellant has drawn our attention towards documents Ex. PW 4/1 whereby the directions to be followed by officials are contained. In view of Ex PW 4/1 the goods were only to be supplied by the accused which were manufactured in the respective centres indicated therein, whereas, on the day of supply the items which were supplied by the accused for the amount of Rs. 10,000/ and Rs. 9,000/ were not available in the stock of the centre. In the letter, specific directions have been given to the effect that the Superintendent had been asked to comply with the orders and in case, they are not in a position to supply the same the noncompliance certificate may be issued to the indenting officers within 7 days of the receipt of the indent. It is urged by the learned counsel for the appellant that Prem Singh did not comply with the directions issued vide letter PW 4/1. Undoubtedly, there is a breach of instructions contained in the letter as the goods had a nil balance in the stock register on the day of supply and if accused Prem Singh was not in a position to supply the same he could have only issued a noncompliance certificate. Instead of issuing the said certificate within 7 days he has allegedly supplied the goods after procuring the same from outside sources.

It is further canvassed by the learned counsel for the State that the amounts received by the accused in respect of these articles which were not available in the stock of Rural Artisan Training Centre is definitely included in the definition of entrustment as he has received the said amount on behalf of Rural Artisan Training Centre. However, it is proved beyond doubt that the goods were not belonging to the department and there is no evidence on record as to from which source the accused procured these items to supply the same to the indenting officer.

Learned counsel for the accusedPrem Singh has contended that a mere transaction of sale cannot amount to an entrustment, specifically, under the present circumstances of the case, where District Education Officer, Hisar ceases to be owner of the property i.e. the disputed amount of Rs. 10,000/ and Rs. 9,000/ on the day when he handed over the property to the accused. Admittedly, the accused has not even received any money belonging to the department, as the articles supplied by the accused were not of Rural Artisan Training Centre, and it can only be presumed that it was an amount which was wrongly received in the name of the centre by accused. Thus, it is contended by the learned counsel for Prem Singh that it is not a case of mis appropriation or criminal breach of trust.

It is further contended by the learned counsel for the respondent that the prosecution has not been able to prove by any cogent evidence that the money allegedly received by the accused was received by them in trust for anybody. There is also no evidence on behalf of the prosecution which can lead to the conclusion that the money was used or disposed of dishonestly.

In order to prove the fact that the money was entrusted to the accused, prosecution has produced the account book and the entries contained therein. It is further contended by the counsel for the accused that mere production of entries contained in the documents are not sufficient in itself to charge any personal liability. The signatures on the documents relied upon by the prosecution were never admitted by the accused and to prove his signatures on the documents prosecution has failed to examine any expert witness which could have led to the conclusion that the signatures appearing on the record are that of accused Prem Singh. There is no evidence of entrustment. Prosecution has also led no evidence in regard to the mode and manner of keeping the account. Prosecution has also not led any evidence that the cash balance was at any time tallied or checked by the officer of the department.

In view of the above discussion, we hold that the prosecution has failed to prove the entrustment or dominion over the property. We are further of the opinion that it is merely a case of failure on the part of accused Prem Singh to perform his duty or to observe the rules of procedure laid down in the letter Ex. PW 4/1. It is clear cut case of breach of performance of duty, specifically, under the circumstances when there is no complaint from the agency from where the goods were purchased to the effect that they have not received the price of their articles, neither there is complaint from the consumer agency that the articles were not as per the specification. No complaint is claimed or alleged or proved on behalf of the indenting officer to whom the articles were supplied by the accused. Therefore, for the reasons, recorded above, we are of the considered opinion that entrustment is not at all proved in the present case, hence the charge under Section 409 of the Indian Penal Code does not stand proved against accused Prem Singh.

Now, we shall discuss the offence alleged to have been committed by the accused under Section 420 of the IPC. It is the case of the prosecution that during the period from March 1971 to March 1972 all the accused persons posted as public servants under the employment of Government of Haryana in the department of Central Training at Rural Artisan Training Centre, Hansi, cheated the office of the District Education Officer, Hisar by dishonestly, inducing them to believe that the textile goods supplied by the accused persons were manufactured by the centre and thereby induced District Education Officer to make the payment of the goods which were not the product of the centre. Section 420 of the IPC is to be read alongwith Section 425 of the IPC. Prosecution has to prove all the ingredients of Section 415 beyond doubt. Therefore, prosecution has to prove :

(1) That the person deceived delivered to someone, or consented that some person shall retain certain property,

(2) That the person deceived was induced by the accused to do as above.

(3) That such person acted upon such inducement in consequence of his having been received by the accused.

(4) That the accused acted fraudulently or dishonestly when so inducing that person

OR

(1) That the person deceived did or omitted to do something which he was not bound to do or omit to do so.

(2) As above,

(3) As above.

(4) That the accused so induced that person intentionally,

(5) That such act or commission caused, or was likely to cause, damage or harm to that person in body mind reputation or property.

In the light of the aforementioned ingredients in the present case prosecution has to show that the accused fraudulently and dishonestly, induced the District Education Officer, Hisar to make them the alleged payment or they intentionally induced him to do what he did and that such act of the accused caused or was likely to cause any damage or harm to the body, mind, reputation or property of the District Education Officer.

In the case in hand neither loss or gain is even alleged what to say of proof by the prosecution. No evidence whatsoever is existing on record regarding these ingredients that is wrongful gain or wrongful loss or either of these two or both. It is not alleged by the prosecution as to what loss in whatever capacity was sustained by the department or neither it is the case of the prosecution that the accused persons were in any way benefitted. Therefore, neither the department suffered any loss nor the accused persons gained any thing in view of the case of the prosecution. No evidence worth the name is available on record, which can lead to the conclusion that any of the person suffered gain or loss or both by the act of the accused persons.

There is no evidence of entrustment, no evidence on mode and manner of keeping the accounts and not even suggestion that the cash in hand was at any time tallied or checked. Further more, the mens reas discussed above required to be proved beyond doubt by the prosecution is missing from the prosecution case. In view of the above discussion, we find no substance in the arguments addressed by the State counsel and hold that no offence under Section 420 IPC is made out against the petitioners.

It is further charge against the accused persons that all of them being public servants fraudulently used as genuine the bills and receipt of the different amounts, which they knew and they had reason to believe at the time of its use to be forged documents and thereby the offence punishable under Sections 465 and 471 of the IPC is made out. Since no offence under Section 420 of the IPC has been made out against the respondents, therefore, the prosecution has failed to prove the ingredients required to be established by the prosecution to convict the accused persons under Section 465/471 IPC. A person cannot be convicted of fabricating a false document if his intention is simply to clear up the matters and is not fraudulent and no wrongful loss or gain is caused to any person thereby.

As it has been discussed above, wrongful loss and wrongful gain is not even alleged by the prosecution, therefore, respondents cannot be convicted on the basis of the evidence brought on record by the prosecution. No offence under section 409/420/465 and 471 is made out.

In view of the above discussion, there is no merit in this appeal and the same is dismissed.

We may mention that since this case relates to challan No. 1 and the findings herein will affect the findings in the cases relating to other challans arising out of the same FIR the judgment of this appeal will form part of our judgment in another 14 appeals against the accused persons (Crl. Appeal Nos. 209/DBA to 222 DBA of 1985.)