Suresh Chandra Tripathi Vs. State of Madhya Pradesh - Court Judgment

Excerpt:
criminal - misappropriation of property - section 409 of indian penal code, 1860(ipc) - petitioner was serving as bill collector of electricity board - he was accused of misappropriating bill deposited by customers - trial court convicted him under section 409 of ipc - petitioner filed appeal - appellate court confirmed order of trial court - hence, present revision petition - held, for conviction under section 409 of ipc entrustment of property and its further misappropriation has to be proved - in instant case no independent witness approved prosecution case regarding entrustment of property to petitioner - there was no direct evidence - petitioner was on counter on date of offence had also been proved - hence, in absence of proving of entrustment of property conviction of petitioner under section 409 of ipc liable to be set aside - petition allowed - motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. similarly, rule 123 of the rules mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part of the pillion rider or composite negligence on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider. if the damage in the accident has not been caused partly on account of violation of section 128 of the act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of section 128 of the act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. in other words, if breach of section 128 of the act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle. therefore, violation of section 128 of the act, per se, by a motor cyclist does not rise a presumption of contributory negligence on his part. similarly, violation of section 128 of the act per se does not amount to contributory negligence on the part of the pillion riders. a pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates section 128 of the act. [national insurance co. ltd., v smt uma tiwari 2007(1) manisa 204 (m.p.) (d.b) & kanti devi sikarwar & ors v om prakash & ors. 2007 (1) mpwn 88 (d.b) overruled.] - the only inference which could be taken note of from the evidence of these witnesses is that there are certain entries in the relevant books indicating that the amount of bill was not endorsed properly. , and it would be highly unsafe to base a conviction solely on the basis of csc book.a.k. shrivastava, j.1. this revision petition has been filed by the accused against the judgment of his conviction passed by the additional chief judicial magistrate, jabalpur and affirmed in appeal by the appellate court.2. in brief the case of the prosecution is that the accused/applicant at the relevant point of time was serving on the post of l.d.c. in the office of m.p. electricity board. it is said that in between the period of 31-7-1980 to 26-12-1980 he did not deposit the amount of the bill which was collected by him from different customers, though, he issued receipts to them. he neither deposited the amount of those bills in the bank which was collected from the customers nor made relevant entry in the relevant collection book. on 12-9-1980, the scandal was first taken note of by the divisional manager p.r. suryavanshi, as a result of which he reported the matter to the concerning police station and thereafter the police investigated the matter and filed a charge-sheet under section 409 of the ipc against the applicant.3. the accused was charged under section 409 of the ipc which he abjured. according to him, he has been falsely implicated.4. in order to prove the charges, the prosecution examined as many as 7 witnesses and placed several documents on record. the trial court after appreciating the evidence came to hold that the amount of the bill was entrusted to the applicant, but he did not deposit either in the department or in the bank, as a result of which convicted the applicant to suffer rigorous imprisonment of two years and fine of rs. 15,000/-, in default, further imprisonment of one year r.i.5. feeling aggrieved by the judgment of conviction and order of sentence, an appeal was preferred by the applicant/accused before the appellate court who by the impugned judgment though affirmed the judgment of conviction but modified the order of sentence. the appellate court in place of two years' r.i. passed a sentence to suffer one year r.i. and by this modification the appeal was disposed of.6. in this revision, none appeared on behalf of the applicant to press the revision petition despite having sent the spc to the petitioner and hence no option was left to me except to follow the verdict of the apex court in the case of bani singh and ors. v. state of u.p. air 1996 sc 2439.7. perused the record and heard the counsel for the state.8. while deciding the case under section 409 of the indian penal code, the most essential ingredient is the entrustment of the property to the accused. apart from the entrustment of the property, it should also be proved that the property was dishonestly misappropriated. thus, if the prosecutionfails to prove the entrustment of the property then the entire case of the prosecution goes.9. in the present case, there is no direct evidence of the entrustment of the amount of the bill to the accused/applicant. for the entrustment of the amount of bill to the accused, the prosecution examined gurupal singh (p.w. 5) and kshirsagar (p.w. 7). these are two customers from whom it is said the accused/applicant received the amount of the bill, and did not deposit the same. the other customers who had paid the amount of bill have not been examined by the prosecution. on going through the evidence of gurupal singh (p.w. 5) and kshirsagar (p.w. 7), it is gathered that nowhere they have stated that they entrusted the amount of bill to the applicant. on the contrary, it has been stated by them that on that day the applicant/accused was not sitting on the counter. so far as the evidence of kshirsagar (p.w. 7) is concerned, he is unable to stale that who was sitting on the counter on the relevant day. he has also stated that in the identification parade, he could not identify the accused. moreover, no credence could be given to the test identification parade because according to this witness the station officer inchargc told him that the person wearing the 'maflar' is the impugned person.10. the other witnesses, namely, p.r. suryavanshi (p.w. 1), k.m. dixit (p.w. 2), and shambhulal shrivastava (p.w. 6) are the departmental witnesses. from the evidence of these witnesses, it can not be gathered that the amount of bill was entrusted to the accused/applicant. the only inference which could be taken note of from the evidence of these witnesses is that there are certain entries in the relevant books indicating that the amount of bill was not endorsed properly. before any reliance could be placed on the said books of the department, it should come in the evidence that they were being kept in the regular course of business. unless and until there is positive evidence to the effect that the books were regularly kept in the course of business whatever the documentary evidence has been produced can not be said to be relevant piece of evidence. the departmental witnesses at any point of time had not said in their evidence that the entries which were made in the books of account were regularly kept in the course of business. this is the requirement of law and should be proved in its slricto sensu. hence in absence of any evidence to that effect, no credence could be given to the csc book etc., and it would be highly unsafe to base a conviction solely on the basis of csc book.11. the direct evidence relating to the entrustment of the money to the applicant so as to constitute the most important part of section 409 of the ipc is lacking from the present case. i have already discussed hereinabove that from the evidence of gurupal singh and kshirsagar, it can not be gathered that the amount of bill was entrusted to the applicant. on the contrary, gurupal singh (p.w. 5) has said that the accused/applicant is known to him and on that day he did not see him sitting on the counter. kshirsagar (p.w. 7)has also stated that to whom he had paid the amount of bill, he could not say. from the evidence of these two witnesses, it is not clear that of which month they deposited the amount of the bill. moreover, the prosecution did not care to confront the concerning bills to these witnesses. the departmental witness k.m. dixit (p.w. 2) has stated that he has not seen the accused/applicant receiving the amount of bill during the relevant period from the customers.12. the supreme court in the case of dadarao v. the state of maharashtra, air 1974 sc 388, has held that if there is no evidence of entrustment, no evidence in regard to the mode and manner of keeping the accounts and not even a suggestion that the cash on hand was at any time tallied or checked, a person can not be convicted under section 409 of the ipc. the apex court has further held that merely in the statement of the accused if he has admitted his signature in the accounts books would in itself not be sufficient to hold him to be guilty under section 409 of the ipc.13. in a later decision in the case of roshan lal raina v. state of jammu and kashmir, air 1983 sc 631, the principle has been enumerated that without proof of entrustment, there can be no question of the accused being found guilty of the offence under section 409 of the ipc.14. as i have discussed hereinabove, there is no evidence regarding the entrustment of the payment of amount of the bill to the applicant, hence no offence against the present applicant is made out.15. this court in the case of state of madhya pradesh v. thakuri prasad, 1989 (i) mpwn 205, has held that not only the entrustment of the property but also misappropriation or conversion to the use of accused has to be proved in order to make out the offence under section 409 of the ipc. the same principle has been enumerated in another decision of this court in the case of badrilal v. state of m.p., 1987 (ii) mpwn 6.16. the appellate court in para 15 of its judgment has held the applicant to be guilty under section 409 of the ipc because the prosecution has examined all those witnesses from whom the amount of bill has been obtained by the applicant and issued receipts to them. this finding is perverse because the prosecution examined only two witnesses, namely, gurupal singh and kshirsagar, the evidence of which is not at all relevant in regard to the entrustment of the bill amount. much reliance has been placed by the courts below that rs. 13,000/- was deposited by the applicant's wife, hence it would be presumed that the accused/applicant has committed the offence. to me, merely because the said amount has been deposited by the wife of the accused would in itself is no ground to fasten the liability on the applicant as envisaged under section 409 of the ipc. the accused examined his wife pushpalata tripathi as d.w. 1 in his defence. according to her, at the instance of shambhulal shrivastava, who is a co-employee, she gave rs. 13,000/- to him and on account of his insistence she put her signature on sonic papers. under these circumstances, even if the amount of rs. 13,(xx)a has been deposited on behalf of the applicant, it can not he legally said that he has committed the offence under section 409 of the ipc.17. on the basis of aforesaid premised reasons as the entrustment of the amount of the bill to the applicant has not at all been proved, the conviction of the applicant can not be sustained and accordingly it is set-aside.18. in the result, the revision succeeds and is hereby allowed. the conviction of the applicant under section 409 of the ipc is hereby set aside. the applicant is on bail, his bail bonds arc discharged. the amount of fine, if deposited, be refunded to him.