State of H.P. vs Ramesh Chand And Anr

Rakesh Kainthla, J

The present appeals are directed against the Judgment dated 17.11.2008 passed by learned Sessions Judge, Hamirpur (learned Appellate Court) vide which the appeals filed by the respondents (accused before learned Trial Court) were allowed and they were acquitted of the charges framed against them. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeals are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Section 406, 420, 411, 120-B of IPC. It was asserted that Inspector SHO Rajesh Kumar (PW23) had gone on patrolling duty with Constable Chaman Lal, Constable Vinod Kumar, Head Constable Sunil Dutt, HHC Julfi Ram, HHG-Babu Ram in a vehicle bearing registration No. HP-22-0100 being driven by HHC Duni Chand. Entry No.5 (Ex.PW23/A) was recorded in the Police Station regarding their departure. The police party was present at Dabrera at 02:40 pm when a secret information was received that Jagan Nath had stacked government cement in his cowshed. The information was credible and any delay in obtaining the search warrant could have led to the destruction of the case property; hence, a rukka (Ext.PW23/B) was sent to the Police Station through Constable-Vinod Kumar where FIR (Ex.PW23/C) was registered. Witnesses Suresh Kumar (PW16A) and Lachman Dass were associated with the investigation. The police reached the cowshed of Jagan Nath and searched it in the presence of the Police Officials and the independent witnesses. 18 cement bags were found in the cowshed. These were seized vide memo (Ex.PW23/D). A site plan (Ex.PW23/E) showing the place of recovery was prepared. The police also recovered 30 cement bags from the house of Sarv Dayal which were seized vide memo (Ex.PW1/C). 10 cement bags were recovered from the cowshed of Ramesh Chand which were seized vide memo (Ex.PW1/B). 40 cement bags were found in the house of Dharam Chand which were seized vide memo (Ex.PW1/A). The site plans of the recovery (Ex.PW23/F to Ex.PW23/H) were prepared. Tilak Raj (J.E.) produced the record, which was seized vide memo (Ex.PW4/A). The police also seized the truck bearing registration No. HIH-792 and the receipt (Ex.PW2/B) vide memo (Ex.PW2/A). The photocopy of the measurement book (Ex.PW22/E) and the store indent (Ex.PW14/A) were seized vide memo (Ex.PW16/E). The police searched the store located at Bhalwani and found 98 cement bags in it. Police seized them vide memo (Ex.PW3/A) and handed them over to Pardhan-Sunita (PW4) on Saturday. Subsequently, they were handed over to Ramesh Garg, SDO, PWD after retaining the sample. The vehicle bearing registration No. HP-22-5242 was seized along with the documents vide memo (Ex.PW18/A). The vehicle bearing registration No. HP-22-1783 was seized along with the documents vide memo (Ex.PW18/B). The agreement of the vehicle was seized vide memo (Ex.PW17/A). The scooter bearing registration No. HP-22-3350 was seized along with the documents and the key vide memo (Ex.PW22/D). Vehicle bearing registration No. HP-22-2934 was seized vide memo (Ex.PW19/A). The photographs (Ex.PW22/1 to Ex.PW22/6 whose negatives are Ex.PW22/7 to Ex.PW22/12) of the spot where Ashok Kumar Contractor was executing the work were taken. The police found after investigation that Ashok Kumar Contractor was handed over the construction work of the retaining wall. 180 cement bags were issued to him for carrying out the construction. These were transported in the vehicle bearing registration No.HIH-792. However, he misappropriated some of the bags in connivance with the other co-accused. Hence, the police prepared the challan and presented it before the Court.

The learned Trial Court found sufficient reasons to frame the charges against the accused for the commission of offences punishable under Sections 411, 406, 420 and 120-B of Indian Penal Code (IPC). The accused pleaded not guilty and claimed to be tried.

The prosecution examined 24 witnesses to prove its case. Piar Chand (PW1) is the witness to the recovery of the cement bags from the houses of Dharam Chand, Ramesh Chand, Sukhdev and Sarv Dayal. Virender Dhiman (PW2) was employed as a driver in the vehicle in which 180 cement bags were transported to the store. Manoj Kumar (PW3) is the driver of the vehicle bearing registration No. HP-22-4955. Sunita Kumari (PW4) is the witness to the opening of the store of Ashok Kumar and the recovery of 98 cement bags. Ramesh Chand Garg (PW5) was posted as SDO in HPPWD and witnessed the recovery of the cement bags from the store of Ashok Kumar. Parma Nand (PW6) is the witness to the recovery of the slip. Ramesh Chand (PW7) and Prakash Chand (PW8) are the witnesses to the recovery of the challan. Ved Parkash (PW9) is the witness to the recovery of the indent. Madan Lal (PW10) is the witness to the recovery of the receipt book. Narinder Kumar (PW11) is the driver of the vehicle bearing registration No. HP-22-2934 but he did not support the prosecution case. Jagdish Chand (PW12) was posted as Supervisor who was directed to count the bags lying in the store of Ashok Kumar. Julfi Ram (PW13) was a Contractor who supplied the cement bag to Ashok Kumar when Ashok Kumar was left with no cement bag. Tilak Raj (PW14) proved that Ashok Kumar was given the construction work of the retaining wall. Constable Santosh Kumar (PW15) is the witness to the recovery of the measurement book. HHC-Bishan Dass (PW16) is the witness to the recovery of the truck bearing registration No. HIH-792. Suresh Sharma (PW16-A) and Kuldeep Chand (PW17) have not supported the prosecution case. Prem Chand (PW18) and Sunil Kumar (PW21) witnessed the recovery of the vehicle bearing registration No. HP-22-5242. SI-Dharam Chand (PW19) is the witness to the recovery of the documents of the vehicle bearing registration No. HP-22-2934. Sushil Kumar (PW20) is the owner of the vehicle bearing registration No. HP-22-5242. Ramesh Chand (PW22) conducted the investigation partly. Inspector Rajesh Kumar (PW23) conducted the initial investigation.

The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that witnesses were inimical towards them and a false case was made against them. No defence was sought to be adduced by the accused.

The learned Trial Court held that the testimonies of the witnesses corroborated each other. It was proved that accused Ramesh had received the cement bags from HPPWD Barsar on 26.07.2003. He was found in possession of 98 cement bags in his store. It corroborates the prosecution's version that he had not transported all the bags received by him to his store but had sold the cement to various persons. Dharam Chand, Sarv Dayal, Ramesh Chand and Jagan Nath had purchased the cement bags from accused Ashok Kumar. The accused misappropriated the Government property and cheated the HPPWD after entering into a conspiracy. No evidence was found against Vijay, Rajinder and Kuldeep. Therefore, the learned Trial Court convicted the accused Ashok Kumar, Sarv Dayal, Dharam Chand, Ramesh Chand and Jagan Nath of the commission of offences punishable under Sections 406, 420 read with Section 120-B of IPC and acquitted them of the commission of offences punishable under Section 411 read with Section 420-B of IPC. Learned Trial Court also acquitted Rajinder Kumar, Vijay Kumar and Kuldeep Kumar of the commission of offences punishable under Sections 411, 406, 420 read with Section 120-B of IPC. Each of the accused was sentenced to undergo simple imprisonment for 06 months for the commission of an offence punishable under Section 406 of IPC and to pay a fine of ₹ 1,000/- each. Each of the accused was also sentenced to undergo simple imprisonment for 01 year for the commission of an offence punishable under Section 420 of IPC and sentenced to pay a fine of ₹1,000/- each. Each of the accused was sentenced to undergo simple imprisonment for 06 months and pay a fine of ₹1,000/- each and in default of payment of the fine to further undergo simple imprisonment for three months for the commission of an offence punishable under Section 120-B of IPC.

Being aggrieved from the judgment and order passed by the learned Trial Court, the accused preferred separate appeals, which were decided together by learned Sessions Judge Hamirpur (learned Appellate Court). Learned Appellate Court held that Manoj Kumar (PW3) stated that Ashok Kumar had taken 180 cement bags. These were transported through a vehicle bearing registration No.HIH-792. Madan Lal stated that the cement bags were unloaded in an authorized store of Ashok Kumar at Sulghan. Therefore, the prosecution's version that the bags were not transported to the store, but were sold on the way was not proved on record. It was an admitted version that the cement bags were supplied by the PWD authorities to various contractors and mere recovery of the bags was not sufficient to connect Ashok Kumar with the commission of the crime. The recovery was not proved beyond reasonable doubt as the testimony of Piar Chand (PW1) was not satisfactory. Learned Trial Court erred in convicting and sentencing the accused; hence the judgment and order passed by the learned Trial Court were ordered to be set aside and the accused were acquitted of the commission of offences charged against them.

Being aggrieved from the judgment passed by the learned Sessions Judge, the State has filed the present appeals asserting that the learned Appellate Court erred in acquitting the accused. The learned Appellate Court failed to appreciate the prosecution evidence in its proper perspective. Unrealistic standards were set to evaluate the prosecution evidence. The testimony of the prosecution witnesses was wrongly discarded without any justification. The learned Trial Court had passed a well-reasoned judgment and cogent reasons were not assigned to upset the judgment. Ashok Kumar was assigned the work of the construction of the road and retaining wall from Jahu to Hamirpur. 180 cement bags were delivered to him vide indents (Ex. PX and Ex.PY). These bags were marked as ACC Gaggal Parbat, not for sale in HP Government supply. The accused was found short of 82 cement bags in his store. Police recovered 18 bags from Jagan Nath, 13 bags from Sarv Dayal, 10 bags from Ramesh Chand and 40 bags from Dharam Chand. It was wrongly held that these bags could have been purchased from the other contractors also. The accused was supposed to explain the shortage of the bags, but no such explanation was provided. The learned Appellate Court erred in acquitting the accused, therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.

I have heard Mr Prashant Sen, learned Deputy Advocate General for the appellant-State, Mr Neeraj Sharma learned counsel for the respondent/accused Ramesh Chand, Ms Sheetal Vyas, learned counsel for the respondent/accused Ashok Kumar and Mr Ajay Sharma learned counsel for respondent/accused-Dharam Chand.

Mr Prashant Sen, learned Deputy Advocate General for the appellant-State submitted that the learned Appellate Court erred in setting aside the well-reasoned judgment and order passed by the learned Trial Court. It was duly proved on record that 180 cement bags were supplied to accused Ashok Kumar. He was found short of 82 bags on the next day without executing any work. The cement bags were recovered from the co-accused. No explanation was provided by the co-accused regarding the possession of the cement bags. Learned Trial Court erred in discarding the statements of prosecution witnesses without any justifiable reason; hence, he prayed that the present appeal be allowed, the judgment passed by the Appellate Court be set aside and the judgment and order passed by the learned Trial Court be restored.

Mr. Neeraj Sharma learned counsel for accused Ramesh Chand submitted that the identity of the bags was not established. Learned Appellate Court had taken a reasonable view which could have been taken based on the material placed before it and no interference is required with it while deciding the appeal against acquittal. He prayed that the present appeal be dismissed.

Ms. Sheetal Vyas learned counsel for respondent/accused Ashok Kumar submitted that the learned Trial Court had wrongly held that no work was executed by the accused Ashok Kumar. It was duly proved on record by the statement of Jagdish Chand (PW12) that the accused was carrying on the work w.e.f. 27.07.2003 till 31.07.2003. A reasonable inference can be drawn that the bags were consumed in the construction work. The prosecution is required to prove its case beyond reasonable doubt and it was not proved that the accused had sold the bags. The prosecution's version that the accused Ashok Kumar had not transported 180 bags to the store was also not established. Learned Trial Court had ignored all these circumstances and learned Appellate Court had rightly set aside the judgment of the learned Trial Court. She prayed that the present appeal be dismissed and the judgment passed by the learned Appellate Court be upheld.

Mr. Ajay Sharma learned counsel for accused Dharam Chand adopted the submissions of Mr. Neeraj Sharma and submitted that no interference is required with the judgment passed by the learned Appellate Court.

I have given considerable thought to the submissions made at the bar and have gone through the record carefully.

The present appeals have been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that while deciding an appeal against acquittal, the High Court should see whether the evidence was properly appreciated on record or not; second whether the finding of the Court is illegal or affected by the error of law or fact and thirdly; whether the view taken by the Trial Court was a possible view, which could have been taken based on the material on record. The Court will not lightly interfere with the judgment of acquittal. It was observed:

“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “two-views theory” has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

In Selvaraj v. State of Karnataka [Selvaraj v. State of Karnataka, (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19]: (SCC pp. 236-37, para 13)

“13. Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: (SCC p. 643, para 9)

‘9. … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’”

In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522], the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

“7. It is well settled that:

7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 :(2019) 2 SCC (Cri) 586] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).

7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807]).

7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320]).”

The present appeals have to be decided as per the parameters laid down by the Hon’ble Supreme Court.

The case of the prosecution was that 180 cement bags were supplied to Ashok Kumar for carrying out the construction work. He misappropriated some of the cement bags and sold them to his co-accused. The co-accused were charged with the commission of offences punishable under Sections 411 and 120-B of IPC. It was specifically stated in the charge sheet that offences punishable under Sections 406, 420-B read with Sections 411, 120-B were made out against accused Ashok Kumar, whereas, the offences punishable under Sections 411, 120-B IPC read with Sections 406, 420 of IPC were made out against accused Rajinder, Vijay, Sarv Dayal, Kuldeep, Dharam Chand, Ramesh Chand and Jagan Nath. The learned Trial Court acquitted accused Ashok Kumar, Sarv Dayal, Dharam Chand, Ramesh Chand and Jagan Nath of the commission of offences punishable under Sections 411 and 120-B of IPC. The State has not preferred any appeal against the acquittal of the accused for the commission of offences punishable under Section 411 read with Section 120B of IPC and this judgment has attained finality.

Section 410 of IPC defines stolen property as the property, the possession of which has been transferred by theft, extortion, robbery and property, which have been criminally misappropriated and in respect of which criminal breach of trust has been committed. Thus, any person receiving the property which is the subject matter of criminal breach of trust receives a stolen property. Section 411 of IPC punishes a person, who dishonestly receives or retains any stolen property knowing or having the reason to believe the same to be the stolen property. Therefore, the prosecution had rightly filed the charge sheet against the accused for the commission of an offence punishable under Section 411 of IPC. Once the learned Trial Court had acquitted the accused of the commission of an offence punishable under Section 411 of IPC, it meant that the accused Sarv Dayal, Dharam Chand, Ramesh Chand and Jagan Nath had not received any stolen property. If they had not received the stolen property, Ashok Kumar could not have sold the stolen property to them and the very basis of the prosecution case that accused Ashok Kumar had misappropriated the cement bags belonging to the State and had sold them to his co-accused who had received them as stolen property is knocked out. It is impermissible for the State to say after accepting the acquittal of the accused of the commission of the offence punishable under Section 411 of IPC that the cement bags were sold by Ashok Kumar after misappropriation and purchased by the co-accused.

Learned Trial Court had convicted the accused of the commission of offences punishable under Sections 420 and 406 read with Section 120B of IPC. Sections 406 and 420 of IPC require different mens rea and cannot exist together. It was laid down by Madras High Court in Vadivel vs. Packialakshmi 1996 Crl. L.J 300 that dishonest intention is the sine qua non to attract cheating and voluntary entrustment is necessary to constitute the breach of trust. Both these states of mind are mutually exclusive. It was observed:-

“8. Thus, it is seen that for identifying the concept of criminal cheating, as provided under Section 416 of the Indian Penal Code, the ingredients of fraudulent, dishonest intention have become the basic sine quo non and if it is there or, identified, then it is to be further ascertained that as a result of which the person so represent must be made to deliver any property to the other and that the inducement must be inherent with the intention to keep the same or to utilise the said property for the use and utilisation of the person, who made such an inducement within such intention. Whereas in the concept of the criminal breach of trust, as defined under Section 405 of the Indian Penal Code, voluntary entrustment following dominion over such property by one to the other person has become necessary to be identified and that the property has become necessarily disentitled, misappropriated or converted in such a way as provided by the Section. If the ingredients set out in the above sections of the law are identified, upon the materials placed by the prosecution, then, Sections 406 and 420 of the Indian Penal Code respectively being the punishment sections come into operation. However, while doing such legal exercises, it has become imperative for the Court to see that the criminal breach of trust and cheating, though, generally involves dishonest intention, but, both are mutually exclusive and different in the basic concept, in the context that criminal breach of trust is voluntary and cheating, is purely on the basis of inducement with dishonest intention. In this regard, I have to say my view that both the concepts of law for the respective offences are totally distinct, different and accordingly, mutually exclusive from each other. Unless and until these are adequate materials available and made before the Court of law, both offences can be dealt with together.”

A similar view was taken by the Punjab and Haryana High Court in Jalpa Parshad Aggarwal v. State of Haryana, 1987 SCC OnLine P&H 580 wherein it was observed:

“3. At the very outset, it may be mentioned that this Court held in Iqbal Singh Randhawa v. Doctor Satpaul Goyal, 1977 C.L.R. (Pb. & Har.) 134, that an offence under section 406, Penal Code, 1860, is, an antithesis of an offence under section 420, Penal Code, 1860. In a case of criminal misappropriation, the property is voluntarily kept in the custody of an accused whereas in a case of cheating, the accused, by adopting deceitful means, induces the complainant to part with the property. Thus, an accused cannot be tried for these two offences simultaneously. Either he has committed an offence under Section 406, Penal Code, 1860 or under Section 420, Penal Code, 1860.”

Gujarat High Court also took a similar view in Rajendrakumar Chakravarti v. Co-operative Bank of Baroda, 1997 SCC OnLine Guj 87: (1997) 2 GLH 394: 1998 Cri LJ 216: (1997) 4 GCD 520 wherein it was observed:

“A person can alternatively be charged under Sections 406 to 409 or Section 420, I.P.C. It is true that the ingredients of Sections 406 to 409 and the ingredients of Section 420 are required to be considered. The offence under Section 406, 408 or 409 and the offence under Section 420 could not go together. But if the alternative charge is framed, it could not be said that an alternative charge is illegal and invalid.”

Rajasthan High Court also held in Rana Ram vs. State of Rajasthan S.B. Criminal Misc(Pet.) No. 4893/2024 decided on 06/08/2024:2024:RJ-JD:33404 that the offences punishable under Sections 406 and 420 of IPC are antithetical. It was observed:

“22. There is yet another aspect of the case. The offences under Section 405 IPC and Section 420 IPC are mutually antithetical and cannot stand together. In the case of Section 405 IPC, the property is delivered by the owner in trust to the accused and there is no element of dishonesty on the part of the accused at the inception i.e. before or time of entrustment of the property to him, but the element of dishonesty of the accused develops/arises subsequent to the entrustment of the property to him. As against this, for applicability of section 420, it is necessary to show that the element of dishonesty of the accused existed prior to and/or at the time of the delivery of the property to him i.e., at the inception itself.

22.1. Both Sections 405 and 420 of the IPC operate in distinctly different domains i.e. entrustment versus inducement. Section 405 deals with entrustment, where the victim places trust in the accused by entrusting property, and any breach of this trust by the accused directly hurts the victim. In contrast, Section 420 pertains to inducement, where the accused actively approaches the victim, often through misrepresentation or deception, leading the victim to mistakenly believe in his honesty and part with their property under false pretences/inducement. Therefore, entrustment centres on a breach of existing trust, while inducement involves deceit from the outset.”

It was laid down by the Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. v. State of U.P., 2024 SCC OnLine SC 2248 that the offences punishable under Sections 406 and 420 of IPC are distinct and cannot stand together. It was observed:

“41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Penal Code, 1860 (IPC) was the official Criminal Code in the Republic of India inherited from British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita (“BNS”) in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from an FIR, this responsibility is of the police - to thoroughly ascertain whether the allegations levelled by the informant indeed fall under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins and they cannot survive without each other.”

Thus, the learned Trial Court erred in convicting the accused of the commission of offences punishable under Sections 406 and 420 of IPC.

Even otherwise the prosecution case was not proved beyond reasonable doubt. The prosecution evidence does not show the date of handing over the cement bags to the accused Ashok Kumar and the date of recovery of 98 bags from his store. The police seized the indents (Ex.PW22/A and Ex.PW22/B) which mentioned the date of issuing the cement as 26.07.2003. Virender Dhiman (PW2) stated that the cement bags were transported on 27.07.2003. Manoj Kumar (PW3) stated that the police came to his house on 26.07.2003 and demanded the key to the store. He had the key with him. The police opened the store on 26.07.2003 and found 98 bags in the store.

This witness was put forward as a witness of the truth by the prosecution. He was not cross-examined at all which means that as per him, 98 bags were found in the store of Ashok Kumar on 26.07.2003.

The person who had delivered the cement bags to the accused was not examined by the prosecution. He was the best person to depose about the date when the cement bags were handed over to accused-Ashok Kumar. In the absence of his examination, if the version is believed that the cement bags were handed over on 27.07.2003 and the store was checked on 26.07.2003, it is not established that there was misappropriation after handing over the bags.

Jagdish Chand (PW12) stated that JE called him on 30.07.2003 and told him to count the bags. He counted the bags on the next day and found 98 bags in the store. He specifically stated that in his cross-examination J.E. had called him on 30.07.2003 and he was told to check the cement bags. His testimony is in accordance with the testimony of Tilak Raj, Assistant Engineer (PW14) who stated that the store was checked on 30.07.2003 and deficiency was reported on the first.

Jagdish Chand (PW12) stated in his cross-examination that Ashok Kumar was executing the work w.e.f. 27.07.2003 till 31.07.2003 under his supervision. It shows that if the cement bags were received on the 27th and were checked on the 31st, they could have been consumed while executing the work.

The prosecution also examined Sunita Kumari (PW4) who stated that the store of Ashok Kumar was opened. 98 bags were found in it. These were handed over to her on Saturday. She had not mentioned the date when the cement was recovered by the police. Since the date is material, therefore, her testimony does not prove the prosecution's case regarding the misappropriation.

Ramesh Chand Garg (PW5) stated that the police had recovered the cement bags from the store of Ashok Kumar. The police seized the bags and handed them over to Sunita Kumari. He stated in his cross-examination that police had visited the spot on 31.07.2003. He had accompanied the police to the spot on 31.07.2003. This also corroborates the version of other PWD officials that the recovery of the cement bags was effected on 31.07.2003. Since the work was continuing, therefore, the prosecution version that the bags could not have been utilized in the construction work is not established.

Therefore, the prosecution version that the cement bags were supplied on 26.07.2003 and they were found missing on 27.07.2003 has not been established; rather it appears that the cement bags were supplied on 27.07.2003 as per the indent and the store was checked on 31.07.2003 when the work was continuing and the accused could have consumed the cement; hence the prosecution case was not proved.

Ramesh Chand (PW5) stated in his cross-examination that no complaint was received by him that Ashok Kumar was not executing the work properly. This shows that the statement of Jagdish Chand Supervisor (PW12) that Ashok Kumar was carrying out the work w.e.f. 27.07.2003 till 31.07.2003 is to be accepted as correct which corroborates the version that the cement bags could have been utilized while carrying out the construction work.

It was the specific case of the prosecution that the cement bag bore the words ‘ACC Gaggal Parbat not for sale HP Government supply only’. Thus, the bags could have been identified by the words, ‘not for sale HP Government supply only’.

Piar Chand (PW1), the witness to recovery stated that 40 bags of cement were recovered from the house of Dharam Chand in which the words not for sale were mentioned. He has nowhere stated that the cement bags also bore the words HP Government supply.

Similarly, Rajesh Kumar (PW23) who effected the recovery has also not stated in his examination-in-chief that the bags bore the words "HP Government supply not for sale". Therefore, these bags were not connected to the bags, which are stated to have been supplied by HPPWD to Ashok Kumar.

The learned Appellate Court had rightly pointed out that the statement of Piar Chand (PW1) was not satisfactory in establishing the recovery from the possession of the other accused. He specifically stated in his cross-examination that when he reached the spot the doors were open, the police had removed the cement bags with the help of 4-5 labourers and the cement bags were being transported in the jeep in his presence. The cross-examination of this witness shows that actual recovery was not effected in his presence. He had only seen the cement bags being transported in the jeep and he could not have been a witness to the recovery of the cement bags from the houses of the co-accused.

Virender Dhiman (PW2) stated that 180 bags of cement were loaded in his vehicle. Ashok Kumar guided him towards Multhan and Lambloo. When he reached at Chambial his vehicle stopped while going uphill. Ashok Kumar had supplied a telephone number on which he made a call. Ashok Kumar brought one vehicle. 55 bags of cement were loaded in that vehicle. Thereafter, they traveled towards Lambloo where another vehicle TATA 407 was parked. 50 bags were loaded in that vehicle. ₹ 2600/- was paid to him. He stated in his cross-examination that the cement bags were loaded from the PWD.

The statement of this witness shows that his vehicle could not travel further because the road was uphill. He has nowhere stated that the bags were misappropriated on the way. He stated that he had taken the bags to Lambloo where they were loaded in another vehicle; hence his testimony does not prove the prosecution case regarding the misappropriation.

Thus, the learned Appellate Court took a reasonable view while acquitting the accused. This Court will not interfere with the reasonable view of the learned Appellate Court even if the other view is possible. Thus, no interference is required with the judgment passed by the learned Appellate Court.

In view of the above, the present appeals fail and the same are dismissed.

Registry is directed to send the records forthwith.