G. Dasappa Vs. State by Police Inspector - Court Judgment

Excerpt:
(prayer: this crl.a. is filed under s.374(2) cr.p.c., praying to set aside the judgment of conviction and sentence imposed upon the appellant vide order dated 12.4.2010 passed by the prl. sessions judge, chitradurga, in spl.c.(p.c.a.) no.1/2007 convicting the appellant/accused for the offence p/u/s.409 of ipc r/w 13(1)(c) and 13(2) of prevention of corruption act, 1988.) 1. this appeal is directed against the judgment of conviction dated 12.04.2010 passed by the learned principal session judge, chitradurga in special case (p.c.a.) no.1/2007 convicting the accused under s.409 ipc r/w ss.13 (1)(c) and 13(2) of prevention of corruption act, 1988 (for short ‘the act’) and sentencing him to undergo simple imprisonment for a period of 3 years and 2 months and pay fine amount of rs. 50,000/-, in default, to undergo simple imprisonment for a further period of 9 months, by giving setoff to the period of detention already undergone. 2. the case of the prosecution in brief is that, during the financial year 2004-05, i.e., for the period from 6.1.2004 to 5.7.2004, the accused was working as a secretary, nannivala grama panchayat (for short ‘panchayat’), in chellakere taluk and thus, a public servant, within the meaning of s.2(c) of the act. as per rule 38 of karnataka panchayat raj (grama panchayat accounts andy budget) rules, 1995, accused was entrusted the work of maintenance of accounts of the panchayat and in between 1.4.2004 to 30.6.2004, accused collected the revenue from the public to the tune of rs. 49,352/-, but, except remitting a paltry sum of rs. 500/- to the account of grama panchayat on 30.4.2004, he did not remit the remaining huge revenue collection of rs. 48,852/- to the grama panchayat account and used the said amount for himself and thus committed misappropriation of the said amount, which fact came to light during the course of audit of the books of accounts of the said panchayat, conducted by pws.5 to 7 for the financial year 2004-05 and when pw-7 gave the report to his higher up pw-6. 3. pw.11/m.n. karibasavangowda, police inspector, lok ayuktha police, chitradurga, having received credible information, on 28.7.2006, that the accused being a public servant has misappropriated a sum of rs. 48,852/- from the panchayat revenue collection, registered a case in crime no.12/2006 for the offences punishable under s.409 ipc and s.13(1)(c) r/w 13(2) of the act and lodged fir/ex.p14, pw-11, undertook and conducted the investigation, which was taken over by pw.12/g. gurudutt, who filed the charge sheet. 4. the accused appeared and the charge under s.409 ipc and s.13(1) (c) r/w s.13(2) of the act was framed and was put to him. he pleaded not guilty and claimed to be tried. to prove the charge, the prosecution examined pws.1 to 12 and marked exs.p1 to p17. accused was examined under s.313 cr.p.c. and it is a case of denial. no defence evidence was adduced. upon conclusion of the trial and after hearing the arguments, learned sessions judge convicted the appellant and imposed the sentence, as above. the said judgment of conviction and order of sentence has been questioned in this appeal. for convenience, the parties would be referred to with reference to their ranks in the trial court. 5. sri nithin r., learned advocate, firstly, contended that, pw-11, who registered the case and lodged the fir/ex.p14, ought not two have investigated the case and the said act has caused prejudice to the accused. he contended that the investigation conducted by pw-11 is opposed to the ratio of the decisions in the cases of (1) bhagwan singh vs. the state of rajasthan, air 1976 sc 985, (2) megha singh vs. state of haryana, air 1985 sc 2339 and (3) state by upparpet police station vs. sampangi and others, 2004 (2) kccr 920. secondly, the necessary ingredients of s.409 ipc and s.13(1)(c) of the act has not been established and there is no credible evidence showing the entrustment of the money to the accused and also the act of misappropriation. he contended that the prosecution has failed to establish the core elements and its case beyond all reasonable doubts and hence, the trial court has committed error and illegality in finding the accused guilty. reliance was placed on the decisions in the cases of rabindra kumar dey vs. state of orissa, air 1977 sc 170 and ajodhya prasad misra and etc., vs. state of orissa, 1985 crl. l.j. 1401. thirdly, pw-8 and the accused were placed in identical situation and that, mere fact that there may be short remittance does not amount to dishonest misappropriation and the procedure as followed in the case of pw-8 was not extended to the accused, which shows the non-establishing of the allegation of dishonest intention. reliance was placed on the decision in kailash kumar sanwatia vs. state of bihar and another, air 2003 sc 3714. he contended that in the circumstances of the case and in the interest of justice, reversal of impugned judgment is warranted. alternatively, he submitted that the sentence imposed is harish. 6. smt. t.m. gayathri, learned advocate, on the other hand, after taking me through the entire materials placed on record by the prosecution, made submissions in support of the findings and conclusion of the trial court and pleaded for confirmation of the conviction and for upholding of the sentence imposed on the accused. she placed reliance on the decision in the case of n. bhargavan pilai (dead) by l.rs. and another vs. state of keraa, 2005 scc (cri) 135. 7. perused the record, keeping in view the rival contentions, the point for determination is: whether the judgment of conviction and order of sentence, passed by the learned trial judge, impugned herein, is justified? 8. pws.1 and 2 are the panch witnesses to exs.p3 and p9, seizure mahazars. pw-4 was a secretary of panchayat, who worked up to 9th october 2009. pws-5, 6 and 7 are the members of the audit team. they audited the books of accounts of panchayat for the financial year 2004-05 and pointed out the short remittance of the revenue collected to the extent of rs. 48,852/-. ex.p13 is the draft/manuscript of the audit report. ex.p.12 is the final audit report. pw-8 is another secretary of panchayat, who took charge from one divakara murthy, who had served the panchayat between 1.7.2004 to 11.8.2004. pw-9 is the bill collector of village panchayat for the relevant period and has spoken about ex.p2, day book and exs.p4 to p7, receipt books pertaining to the period during which the accused was the secretary of the panchayat. pw-11, upon receipt of credible information, registered the case, sent the fir to the court and conducted the investigation. pw-12 took charge of the investigation from pw-11, received the sanction letter/ex.p16, recorded the statement pw-11 and further statements of pws.6, 9 and 11 and filed the charge sheet. ex.p1 is the cash book. ex.p.8 is the remittance book. ex.p10 is the letter of pragathi grameena bank. ex.p.11 is the copy of the pass book. ex.p15 shows the service particulars of the accused. ex.p17 is a notice sent to pw-8. material records exhibited in this case are not under challenge and the prosecution case mainly depends on these documents. 9. the first contention urged by sri nithin r., by placing reliance on the three decisions, noticed supra, has no merit. the ratio of the first two decisions of the apex court, was noticed and applied in the third decision, i.e., in the case of state by upparpet police station vs. sampangi and others, 2004 (2) kccr 920. the ratio of decisions of the apex court, reported in air 1976 sc 985 and air 1985 sc 2339, when relied upon by the defence, in the case of state represented by inspector of police, vigilance and anti-corruption, tiruchirapalli, t.n., vs. v. jayapaul, (2004) 5 scc 223, after noticing the distinguishing factors, apex court has held as follows: “5. in fact, neither the high court found not was any argument addressed to the effect that there is a statutory bar against the police officer who registered the fir on the basis of the information received taking up the investigation. 6. though there is no such statutory bar, the premise on which the high court quashed the proceedings was that the investigation by the same officer who “lodged” the fir would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. we find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an fir incorporating his name as the informant, he forfeits his right to investigate. if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. the question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the high court, that whenever a police officer proceeds to investigate after registering the fir on his own, the investigation would necessarily be unfair or biased. in the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. the formality of preparing the fir in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. if the reason which weighed with the high court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. what is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.” (italicized by me for emphasis) 10. in the case of bhaskar ramappa madar and others vs. state of karnataka, (2009) 11 scc 690, with regard to the ratio of the decisions reported in (1) air 1976 sc 985, (2) air 1985 sc 2339, it has been held as follows: “8. so far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. the decisions of this court in bhagwan singh vs. state of rajasthan, (1976) 1 scc 15, (scc at para 18) and megha singh vs. state of haryana, (1996) 11 scc 709, (scc) at part 4) have to be confined to the facts of the said cases. merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. the matter has to be decided on a case-to-case basis without any universal generalisation.” (emphasis supplied by me) 11. in the instant case, pw-11 received credible information, registered the case and conducted the investigation, pw-12, took over further investigation and filed the charge sheet. sri nithin.r., is unable to point out any material circumstance by which the investigation conducted by pw-11 having caused prejudice to the accused, pw-11, in his official capacity, having received the credible information, registered the case and as a part of his official duty, investigated the matter. pw-11, was not in any way personally interested in the case. even otherwise, pw-12 conducted further investigation and filed the charge sheet. in these circumstances, the first contention urged for the appellant fails. 12. with regard to the second contention, the question which needs to be decided is, whether having regard to the facts and circumstances of the case, the prosecution has been able to prove that the accused, a public servant, working as secretary of the grama panchayat, misappropriated the revenue collected from the members of the public? to answer the question, it is useful to refer to the definition and punishment of criminal breach of trust and related provisions under ss.405, 406 and 409 ipc, which read as under: “s.405. criminal breach of trust.- whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”. s.406. punishment for criminal breach of trust.- whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. s.409. criminal breach of trust by public servant, or by banker, merchant or agent.- whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 13. illustration (e) appended to s.405 ipc, being material, reads thus: “(e) a, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the government, to pay into a certain treasury all the public money which he holds. a dishonestly appropriates the money. a has committed criminal breach of trust”. 14. ss.407 to 409 ipc contain provisions for various cases in which the property is entrusted to the enumerated categories of persons who commit the offence. criminal breach of trust by a public servant appears in s.409 ipc. the section encompasses public servants, bankers, merchants, factors, brokers, attorneys or agents. a public servant must be honest with moral values. he holds an office of trust. a public servant who has entrustment of the property or dominion over the property has high degree of responsibility. he should act as guardian of the public property. 15. the essential ingredients of the offence under s.409 ipc is: (1) the accused must be a public servant; (2) he must have been entrusted, in such capacity with the property; (3) he must have committed breach of trust in respect of such property. 16. in raghunath anant goklkar vs. state of maharashtra and others, 2008 air scw 1375, apex court has held that, s.406 which provides the punishment for criminal breach of trust simpliciter and s.409 ipc are cognate offences in which the common component is criminal breach of trust. when an offence punishable under s.406 is committed by a public servant, the offence would escalate to s.409 ipc. 17. the accused was the secretary of the panchayat. he was holding an office of public trust from 6.1.2004 to 5.7.2004. the receipt books/ exs.p5 and p7 show, that the petitioner himself i.e., under his signatures had collected the revenue from the public. the moment, revenue was collected by the accused in the capacity as secretary of the panchayat, it became public property. the revenue collected was required to be remitted without any delay to the account of the panchayat. ex.p2 is the day book. ex.p8 is the remittance book. pws.5, 6 and 7 have audited the books of accounts of the panchayat. ex.p13 is the draft audit report and ex.p12 is the final audit report. there is no record showing that the revenue of rs. 48,852/- collected from the public by the petitioner under the receipt books exs.p5 and p7 was remitted in either of the bank accounts or at the treasury, i.e., to the credit of the village panchayat. evidence of pw-9 shows that, revenue was collected under receipt books exs.p4 to p7 and also the maintenance of cash book and the day book of the village panchayat. from exs.p4 to p7, the entrustment of money to an extent of rs. 49,352/- to the accused has been proved. the public revenue collected under exs.p4 to p7 or at least under exs.p5 and p7, under the signatures of the accused has not been remitted by the accused, in either of the bank accounts or in the treasury, i.e., to the credit of the panchayat. in view of the undisputed fact that the collection of the revenue of the panchayat under exs.p5 and p7 was by the accused himself, it is for the accused to prove that the entire amount collected was remitted to the account of the panchayat, in either of the banks or the treasury account. once the entrustment ie., collection of revenue from the public is proved, it is for the accused to prove as to how the property/revenue collected, impliedly entrusted to him was dealt with, in view of s.405 ipc and the illustration (e), noticed supra. the accused was bound to pay into the treasury or the bank accounts of the panchayat, which he held. by not remitting the revenue collection of rs. 48,852/-, out of rs. 49,352/-, the accused has committed criminal breach of trust. 18. it is useful to notice the ratio of the decision, in the case of, superintendent and remembrancer of legal affairs, w.b. vs. s.k.roy, (1974) 4 scc 230, wherein, the apex court has held as follows: “12. to constitute an offence under section 409 ipc, it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. the entrustment may arise in any manner whatsoever. that manner may or may not involve fraudulent conduct of the accused. section 409 ipc, covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. all that is required is what may be described as entrustment or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or, at least honestly.” (emphasis supplied by me). 19. the decision in the case of rabindra kumar pande vs. state of orissa, air 1977 sc 170, on which, sri nithin r., placed reliance, is of no assistance to the appellant, since, in that case, there was no material to show any mens rea apart from the fact that the entrustment was not fully established and the accusations were not brought to the notice of the accused and his explanation as offered was not examined at all. 20. the factual scenario, as is evident from the record of the case herein being different, the ratio of the decision in the case of rabindra kumar pande and ajodhya prasad misra (supra) has no application. in the instant case, the accusation has been established by the prosecution from the marked documents. the evidence of pws.4, 7, 8, 9 and 11, to which a detailed reference has been made by the trial court in its judgment, is credible and conclusively establishes that the accused was in charge of the public revenue and that, he has not remitted the collection made, more particularly, under the receipts in the receipt books ex.p5 and p7, which bear his signatures. the accused has not offered any explanation, when examined under s.313 cr.p.c. there is no defence evidence, accounting for the revenue collected to an extent of rs. 48,852/-, from the villagers, for the period commencing from 6.1.2004 to 5.7.2004, when the accused was working as secretary of the panchayat. 21. in mustafikhan vs state of maharashtra, (2007) 1 scc 623, apex court has held as follows: “12. it is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. in a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. in the instant case, there is no dispute about the entrustment.” (italicized by me for emphasis) 22. in the case of n. bhargavan pillai, (supra), apex court, with regard to the nature and burden of proof in cases relating to misappropriation of entrusted property, has held as follows: “13. it is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. in jiwan dass case the factual position was entirely different. it was held that the undertaking given in that case could not be held to be confession or admission. in the present case, the factual scenario as noticed by the trial court and the high court is different. it was not only on the basis of the undertaking on record also unerringly proved entrustment. therefore, it was for the accused to prove as to how the property entrusted with him was dealt with. no material was placed in that regard. therefore, the courts below correctly held entrustment to have been proved. the concurrent findings of fact recorded by the courts below relating to entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.” (emphasis supplied by me) in view of the ratio of the above decision, the decision in the case of kailash kumar sanwatia, (supra), being confined to the facts therein, does not enure to the benefit of the appellant. 23. all the aspects have been rightly considered by the trial court to find the accused guilty of the offence punishable under s.409 ipc and s.13(1)(c) r/w s.13(2) of the act. the second contention being devoid of merit, fails. 24. the third contention urged, in view of the above findings with regard to the guilt of the accused, is wholly untenable and is rejected. 25. the prosecution has proved its case beyond all reasonable doubts and hence, the trial court is justified in passing the judgment of conviction and sentence against the accused. the sentence imposed is not harsh. the findings recorded by the trial court is neither perverse nor illegal, warranting interference in appeal. in the result, the appeal is dismissed. the bail bond and surety bond are cancelled and the accused is directed to surrender before the trial court to serve the sentence.

Judgment:
(Prayer: This Crl.A. is filed under S.374(2) Cr.P.C., praying to set aside the judgment of conviction and sentence imposed upon the appellant vide order dated 12.4.2010 passed by the Prl. Sessions Judge, Chitradurga, in Spl.C.(P.C.A.) No.1/2007 convicting the appellant/accused for the offence p/u/S.409 of IPC r/w 13(1)(c) and 13(2) of Prevention of Corruption Act, 1988.)

1. This appeal is directed against the Judgment of conviction dated 12.04.2010 passed by the learned Principal Session Judge, Chitradurga in Special Case (P.C.A.) No.1/2007 convicting the accused under S.409 IPC r/w Ss.13 (1)(c) and 13(2) of Prevention of Corruption Act, 1988 (for short ‘the Act’) and sentencing him to undergo simple imprisonment for a period of 3 years and 2 months and pay fine amount of Rs. 50,000/-, in default, to undergo simple imprisonment for a further period of 9 months, by giving setoff to the period of detention already undergone.

2. The case of the prosecution in brief is that, during the financial year 2004-05, i.e., for the period from 6.1.2004 to 5.7.2004, the accused was working as a Secretary, Nannivala Grama Panchayat (for short ‘Panchayat’), in Chellakere Taluk and thus, a public servant, within the meaning of S.2(c) of the Act. As per Rule 38 of Karnataka Panchayat Raj (Grama Panchayat Accounts andY Budget) Rules, 1995, accused was entrusted the work of maintenance of accounts of the Panchayat and in between 1.4.2004 to 30.6.2004, accused collected the revenue from the public to the tune of Rs. 49,352/-, but, except remitting a paltry sum of Rs. 500/- to the account of Grama Panchayat on 30.4.2004, he did not remit the remaining huge revenue collection of Rs. 48,852/- to the Grama Panchayat account and used the said amount for himself and thus committed misappropriation of the said amount, which fact came to light during the course of audit of the books of accounts of the said Panchayat, conducted by PWs.5 to 7 for the financial year 2004-05 and when PW-7 gave the report to his higher up PW-6.

3. pw.11/M.N. Karibasavangowda, Police Inspector, Lok Ayuktha Police, Chitradurga, having received credible information, on 28.7.2006, that the accused being a public servant has misappropriated a sum of Rs. 48,852/- from the Panchayat revenue collection, registered a case in Crime No.12/2006 for the offences punishable under S.409 IPC and S.13(1)(c) r/w 13(2) of the Act and lodged FIR/Ex.P14, PW-11, undertook and conducted the investigation, which was taken over by PW.12/G. Gurudutt, who filed the charge sheet.

4. The accused appeared and the charge under S.409 IPC and S.13(1) (c) r/w S.13(2) of the Act was framed and was put to him. He pleaded not guilty and claimed to be tried. To prove the charge, the prosecution examined PWs.1 to 12 and marked Exs.P1 to P17. Accused was examined under S.313 Cr.P.C. and it is a case of denial. No defence evidence was adduced. Upon conclusion of the trial and after hearing the arguments, learned Sessions Judge convicted the appellant and imposed the sentence, as above. The said Judgment of conviction and order of sentence has been questioned in this appeal. For convenience, the parties would be referred to with reference to their ranks in the Trial Court.

5. Sri Nithin R., learned advocate, firstly, contended that, PW-11, who registered the case and lodged the FIR/Ex.P14, ought not two have investigated the case and the said act has caused prejudice to the accused. He contended that the investigation conducted by PW-11 is opposed to the ratio of the decisions in the cases of (1) Bhagwan Singh Vs. The State of Rajasthan, AIR 1976 SC 985, (2) Megha Singh Vs. State of Haryana, AIR 1985 SC 2339 and (3) State by Upparpet Police Station Vs. Sampangi and others, 2004 (2) KCCR 920. Secondly, the necessary ingredients of S.409 IPC and S.13(1)(c) of the Act has not been established and there is no credible evidence showing the entrustment of the money to the accused and also the act of misappropriation. He contended that the prosecution has failed to establish the core elements and its case beyond all reasonable doubts and hence, the Trial Court has committed error and illegality in finding the accused guilty. Reliance was placed on the decisions in the cases of Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170 and Ajodhya Prasad Misra and etc., Vs. State of Orissa, 1985 Crl. L.J. 1401. Thirdly, PW-8 and the accused were placed in identical situation and that, mere fact that there may be short remittance does not amount to dishonest misappropriation and the procedure as followed in the case of PW-8 was not extended to the accused, which shows the non-establishing of the allegation of dishonest intention. Reliance was placed on the decision in Kailash Kumar Sanwatia Vs. State of Bihar and another, AIR 2003 SC 3714. He contended that in the circumstances of the case and in the interest of justice, reversal of impugned Judgment is warranted. Alternatively, he submitted that the sentence imposed is harish.

6. Smt. T.M. Gayathri, learned advocate, on the other hand, after taking me through the entire materials placed on record by the prosecution, made submissions in support of the findings and conclusion of the Trial Court and pleaded for confirmation of the conviction and for upholding of the sentence imposed on the accused. She placed reliance on the decision in the case of N. Bhargavan Pilai (Dead) by L.Rs. and another Vs. State of Keraa, 2005 SCC (Cri) 135.

7. Perused the record, keeping in view the rival contentions, the point for determination is:

Whether the Judgment of conviction and order of sentence, passed by the learned Trial Judge, impugned herein, is justified?

8. PWs.1 and 2 are the panch witnesses to Exs.P3 and P9, seizure mahazars. PW-4 was a Secretary of Panchayat, who worked up to 9^th October 2009. PWs-5, 6 and 7 are the members of the audit team. They audited the books of accounts of Panchayat for the financial year 2004-05 and pointed out the short remittance of the revenue collected to the extent of Rs. 48,852/-. Ex.P13 is the draft/manuscript of the audit report. Ex.P.12 is the final audit report. PW-8 is another Secretary of Panchayat, who took charge from one Divakara Murthy, who had served the Panchayat between 1.7.2004 to 11.8.2004. PW-9 is the Bill Collector of Village Panchayat for the relevant period and has spoken about Ex.P2, day book and Exs.P4 to P7, receipt books pertaining to the period during which the accused was the Secretary of the Panchayat. PW-11, upon receipt of credible information, registered the case, sent the FIR to the Court and conducted the investigation. PW-12 took charge of the investigation from PW-11, received the sanction letter/Ex.P16, recorded the statement PW-11 and further statements of PWs.6, 9 and 11 and filed the charge sheet. Ex.P1 is the cash book. Ex.P.8 is the remittance book. Ex.P10 is the letter of Pragathi Grameena Bank. Ex.P.11 is the copy of the pass book. Ex.P15 shows the service particulars of the accused. Ex.P17 is a notice sent to PW-8. Material records exhibited in this case are not under challenge and the prosecution case mainly depends on these documents.

9. The first contention urged by Sri Nithin R., by placing reliance on the three decisions, noticed supra, has no merit. The ratio of the first two decisions of the Apex Court, was noticed and applied in the third decision, i.e., in the case of State by Upparpet Police Station Vs. Sampangi and others, 2004 (2) KCCR 920. The ratio of decisions of the Apex Court, reported in AIR 1976 SC 985 and AIR 1985 SC 2339, when relied upon by the defence, in the case of State represented by Inspector of Police, Vigilance and Anti-corruption, Tiruchirapalli, T.N., Vs. V. Jayapaul, (2004) 5 SCC 223, after noticing the distinguishing factors, Apex Court has held as follows:

“5. In fact, neither the High Court found not was any argument addressed to the effect that there is a statutory bar against the police officer who registered the FIR on the basis of the information received taking up the investigation.

6. Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who “lodged” the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.”

(Italicized by me for emphasis)

10. In the case of Bhaskar Ramappa Madar and others Vs. State of Karnataka, (2009) 11 SCC 690, with regard to the ratio of the decisions reported in (1) AIR 1976 SC 985, (2) AIR 1985 SC 2339, it has been held as follows:

“8. So far as the desirability of the complainant undertaking investigation is concerned there is no legal bar. The decisions of this Court in Bhagwan Singh Vs. State of Rajasthan, (1976) 1 SCC 15, (SCC at para 18) and Megha Singh Vs. State of Haryana, (1996) 11 SCC 709, (SCC) at part 4) have to be confined to the facts of the said cases. Merely because the complainant conducted the investigation, that would not be sufficient to cast doubt on the prosecution version to hold that the same makes the prosecution version vulnerable. The matter has to be decided on a case-to-case basis without any universal generalisation.”

(emphasis supplied by me)

11. In the instant case, PW-11 received credible information, registered the case and conducted the investigation, PW-12, took over further investigation and filed the charge sheet. Sri Nithin.R., is unable to point out any material circumstance by which the investigation conducted by PW-11 having caused prejudice to the accused, PW-11, in his official capacity, having received the credible information, registered the case and as a part of his official duty, investigated the matter. PW-11, was not in any way personally interested in the case. Even otherwise, PW-12 conducted further investigation and filed the charge sheet. In these circumstances, the first contention urged for the appellant fails.

12. With regard to the second contention, the question which needs to be decided is, whether having regard to the facts and circumstances of the case, the prosecution has been able to prove that the accused, a public servant, working as Secretary of the Grama Panchayat, misappropriated the revenue collected from the members of the public? To answer the question, it is useful to refer to the definition and punishment of criminal breach of trust and related provisions under Ss.405, 406 and 409 IPC, which read as under:

“S.405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”.

S.406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

S.409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

13. Illustration (e) appended to S.405 IPC, being material, reads thus:

“(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust”.

14. Ss.407 to 409 IPC contain provisions for various cases in which the property is entrusted to the enumerated categories of persons who commit the offence. Criminal breach of trust by a public servant appears in S.409 IPC. The section encompasses public servants, bankers, merchants, factors, brokers, attorneys or agents. A public servant must be honest with moral values. He holds an office of trust. A public servant who has entrustment of the property or dominion over the property has high degree of responsibility. He should act as guardian of the public property.

15. The essential ingredients of the offence under S.409 IPC is: (1) the accused must be a public servant; (2) he must have been entrusted, in such capacity with the property; (3) he must have committed breach of trust in respect of such property.

16. In Raghunath Anant Goklkar Vs. State of Maharashtra and others, 2008 AIR SCW 1375, Apex Court has held that, S.406 which provides the punishment for criminal breach of trust simpliciter and S.409 IPC are cognate offences in which the common component is criminal breach of trust. When an offence punishable under S.406 is committed by a public servant, the offence would escalate to S.409 IPC.

17. The accused was the Secretary of the Panchayat. He was holding an office of public trust from 6.1.2004 to 5.7.2004. The receipt books/ Exs.P5 and P7 show, that the petitioner himself i.e., under his signatures had collected the revenue from the public. The moment, revenue was collected by the accused in the capacity as Secretary of the Panchayat, it became public property. The revenue collected was required to be remitted without any delay to the account of the Panchayat. Ex.P2 is the day book. Ex.P8 is the remittance book. PWs.5, 6 and 7 have audited the books of accounts of the Panchayat. Ex.P13 is the draft audit report and Ex.P12 is the final audit report. There is no record showing that the revenue of Rs. 48,852/- collected from the public by the petitioner under the receipt books Exs.P5 and P7 was remitted in either of the bank accounts or at the Treasury, i.e., to the credit of the Village Panchayat. Evidence of PW-9 shows that, revenue was collected under receipt books Exs.P4 to P7 and also the maintenance of cash book and the day book of the Village Panchayat. From Exs.P4 to P7, the entrustment of money to an extent of Rs. 49,352/- to the accused has been proved. The public revenue collected under Exs.P4 to P7 or at least under Exs.P5 and P7, under the signatures of the accused has not been remitted by the accused, in either of the bank accounts or in the Treasury, i.e., to the credit of the Panchayat. In view of the undisputed fact that the collection of the revenue of the Panchayat under Exs.P5 and P7 was by the accused himself, it is for the accused to prove that the entire amount collected was remitted to the account of the Panchayat, in either of the banks or the Treasury account. Once the entrustment ie., collection of revenue from the public is proved, it is for the accused to prove as to how the property/revenue collected, impliedly entrusted to him was dealt with, in view of S.405 IPC and the illustration (e), noticed supra. The accused was bound to pay into the treasury or the bank accounts of the Panchayat, which he held. By not remitting the revenue collection of Rs. 48,852/-, out of Rs. 49,352/-, the accused has committed criminal breach of trust.

18. It is useful to notice the ratio of the decision, in the case of, Superintendent and Remembrancer of Legal Affairs, W.B. Vs. S.K.Roy, (1974) 4 SCC 230, wherein, the Apex Court has held as follows:

“12. To constitute an offence under Section 409 IPC, it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustment may arise in any manner whatsoever. That manner may or may not involve fraudulent conduct of the accused. Section 409 IPC, covers dishonest misappropriation in both types of cases; that is to say, those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as entrustment or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or, at least honestly.”

(Emphasis supplied by me).

19. The decision in the case of Rabindra Kumar Pande Vs. State of Orissa, AIR 1977 SC 170, on which, Sri Nithin R., placed reliance, is of no assistance to the appellant, since, in that case, there was no material to show any mens rea apart from the fact that the entrustment was not fully established and the accusations were not brought to the notice of the accused and his explanation as offered was not examined at all.

20. The factual scenario, as is evident from the record of the case herein being different, the ratio of the decision in the case of Rabindra Kumar Pande and Ajodhya Prasad Misra (supra) has no application. In the instant case, the accusation has been established by the prosecution from the marked documents. The evidence of PWs.4, 7, 8, 9 and 11, to which a detailed reference has been made by the Trial Court in its judgment, is credible and conclusively establishes that the accused was in charge of the public revenue and that, he has not remitted the collection made, more particularly, under the receipts in the receipt books Ex.P5 and P7, which bear his signatures. The accused has not offered any explanation, when examined under S.313 Cr.P.C. There is no defence evidence, accounting for the revenue collected to an extent of Rs. 48,852/-, from the villagers, for the period commencing from 6.1.2004 to 5.7.2004, when the accused was working as Secretary of the Panchayat.

21. In Mustafikhan Vs State of Maharashtra, (2007) 1 SCC 623, Apex Court has held as follows:

“12. It is not necessary or possible in every case to prove as to in what precise manner the accused had dealt with or appropriated the goods. In a case of criminal breach of trust, the failure to account for the money, proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. Although onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it would be difficult for the prosecution to prove the actual mode and manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or falsity of the explanation given by the accused. In the instant case, there is no dispute about the entrustment.”

(Italicized by me for emphasis)

22. In the case of N. Bhargavan Pillai, (supra), Apex Court, with regard to the nature and burden of proof in cases relating to misappropriation of entrusted property, has held as follows:

“13. It is fairly well-settled position in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property entrusted was dealt with. In Jiwan Dass case the factual position was entirely different. It was held that the undertaking given in that case could not be held to be confession or admission. In the present case, the factual scenario as noticed by the trial court and the High Court is different. It was not only on the basis of the undertaking on record also unerringly proved entrustment. Therefore, it was for the accused to prove as to how the property entrusted with him was dealt with. No material was placed in that regard. Therefore, the courts below correctly held entrustment to have been proved. The concurrent findings of fact recorded by the courts below relating to entrustment and misappropriation in our view are well merited and fully justified on the basis of evidence on record and do not suffer from any perversity or patent error of law to warrant interference.”

(Emphasis supplied by me)

In view of the ratio of the above decision, the decision in the case of Kailash Kumar Sanwatia, (supra), being confined to the facts therein, does not enure to the benefit of the appellant.

23. All the aspects have been rightly considered by the Trial Court to find the accused guilty of the offence punishable under S.409 IPC and S.13(1)(c) r/w S.13(2) of the Act. The second contention being devoid of merit, fails.

24. The third contention urged, in view of the above findings with regard to the guilt of the accused, is wholly untenable and is rejected.

25. The prosecution has proved its case beyond all reasonable doubts and hence, the Trial Court is justified in passing the judgment of conviction and sentence against the accused. The sentence imposed is not harsh. The findings recorded by the Trial Court is neither perverse nor illegal, warranting interference in appeal.

In the result, the appeal is dismissed. The bail bond and surety bond are cancelled and the accused is directed to surrender before the Trial Court to serve the sentence.