Dismissed

Puran Lal v. State

Himachal Pradesh HC7 Mar 2024CR.R/15/2013

Case brief

AI extract

What is this about?

Revision against conviction and sentence for criminal breach of trust (IPC 409) and cheating (IPC 420) for misappropriating money intended for Kisan Vikas Patras. acquittal plea rejected; sanction objection overruled. Held: prosecution need not prove exact misappropriation mode if entrustment proved; misappropriation of funds not part of public servant's duty, so sanction not needed. Revision dism

What did the court decide?

Revision petition dismissed; no interference with concurrent convictions and sentences; records to be sent back to lower courts.

Puran Lal Vs State — Cheating and Forgery | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Revision No. 15 of 2013 Reserved on 27.02.2024 Date of Decision: 07^th March, 2024

Puran Lal

....Petitioner

Versus

State of Himachal Pradesh

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....Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes

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For the Petitioners : Mr. B.S. Chauhan, Senior Advocate with Vaibhav Thakur, Advocate. For the Respondent : Mr. R.P.Singh, Deputy Advocate General for respondent-State.

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Rakesh Kainthla,Judge

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The present revision is directed against the judgment

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dated 26.12.2012, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, vide which the appeal filed by the present petitioner (accused before the learned Trial Court) was partly dismissed and the judgment and order dated 14.05.2007, convicting the accused for the commission of an offence punishable under Section 409 of IPC and sentencing him

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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to undergo rigorous imprisonment for three years and to pay a fine of ₹ 5000/- and in default of payment of fine to further undergo simple imprisonment for about 3 months was upheld ( Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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2. Briefly stated, the facts giving rise to the present revision are that the police filed a charge sheet against the accused before the learned Trial Court for the commission of offences punishable under Sections 409 and 420 of IPC. It was asserted that an amount of ₹1,78,000/- was awarded by the Motor Accident Claims Tribunal (MACT) in M.A.C case No. 22 of 1996, decided on 12.01.1998, in favour of Jitwar Singh Negi, Domla Devi and Chander Kant. Respondent No.2, National Insurance Company deposited an amount of ₹1,66,814/- with the Tribunal. ₹25,000/were ordered to be released to Dolma and ₹8,363/- each was ordered to be released to Jitwar Singh Negi and Chander Kant. The remaining amount of ₹1,25,000/- was ordered to be invested in Kisan Vikas Patras in the name of the petitioners. Accused Puran Raj was posted as a Daftari in MACT Rampur. He was temporarily discharging his duties as Naib Nazir on the date of the incident.

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He withdrew ₹1,25,000/- from the State Bank of India, Rampur on 22.5.1998. The learned Tribunal had asked the Postmaster, Rampur Bushahr to issue Kisan Vikas Patras in the sum of ₹1,25,000/-. The accused being Naib Nazir was asked to get the Kisan Vikas Patras issued. The claimants applied for a refund of the amount of ₹2,50,000/- on 22.12.2003. The Kisan Vikas Patras, could not be traced. The accused was asked to explain his position. He filed a reply asserting that he had handed over the amount of ₹1,25,000/- to the concerned official in the Post Office for the issuance of the Kisan Vikas Patras. He had also directed the claimants to fill in the requisite form and nomination papers. The Kisan Vikas Patras could not be traced and it appeared that the accused had misappropriated the money.

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Sh. Shamsher Singh (PW-17) was posted as District & Sessions Judge Kinnuar, Sessions Division at Rampur Bushahr. He made a written complaint (Ext. PW16/A) to Dy. S.P Rampur. F.I.R. (Ext.PW16/B) was registered at the Police Station.

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ASI Bhupinder Pal (PW-16), conducted the investigation. He obtained an authority letter (Ext.PW5/B) and the photocopies of the register containing the details of the

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withdrawn amount (Ext.PW5/A and Ext.PW-4/A)from SBI, Rampur. He also obtained an authority letter (Ex. PW-1/4) issued in the name of the accused for preparing Kishan Vikas Patras in the name of Vidya Chand, Jyoti Prakash and Satish Kumar. He also obtained the photocopy of the record of preparing Kisan Vikas Patras(Ext.PW-9/1 to Ext.PW-9/14) and the appointment order (Ext.PW-3/C), Office Order (Ext.PW-3/E), an application (Ext. PW-3/F) for withdrawal of the amount filed by the claimants, a copy of the Peon Book and the record of the MACT pertaining to the case. He recorded the statements of the witnesses as per their version. After completion of the investigation, the challan was prepared and presented before the Court.

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The learned Trial Court framed the charges against the accused for the commission of an offence punishable under Section 409 of IPC. The accused pleaded not guilty and claimed to be tried.

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The prosecution examined 17 witnesses to prove its case. Khem Chand (PW-1) was posted as Naib Nazir in the office of MACT andproduced the record. Negi Ram (PW-2) was posted as

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an English Clerk, who produced a copy of the judgment of MACT. Sukh Ram Sharma (PW-3), was also posted as an English Clerk in the office of the District and Sessions Judge and produced the record. Shankutla Devi (PW-4) was posted as Special Assistant in SBI, Rampur. She proved that the accused had withdrawn an amount of ₹1,25,000/- on 22.05.1998. R.S Negi (PW-5) was posted as Accountant and produced the record regarding the disbursal of the amount. Deepak Kumar (PW-6) was posted as an Assistant in SBI Rampur and he had handed over the amount to the accused. Surender Kumar Bajaj (PW-7), was posted as Chief Manager in SBI Rampur and he produced an authority letter issued in favour of the accused, Jitwar Singh (PW-8) was one of the claimants. Ram Krishan (PW-9) was posted as Post Master in Rampur Post Office and proved that no Kisan Vikas Patras were issued in the name of the claimants. Ramesh Chand (PW-10) was posted as Manager in the State Co-Operative Bank and proved the record regarding the withdrawal of the amount by the accused. N.C. Chauhan (PW-11) was the Advocate of the claimant who had filed the application for withdrawing the amount on behalf of the claimants. Sukh Ram (PW-12) was posted as Assistant Post Master in the Post Office Rampur and proved that the other Kisan

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Vikas Patras were issued on the date of the incident but no Kisan Vikas Patras were issued in the name of the claimants. Budhi Singh (PW-13), was posted as Post Master Inspector in Post Office Rampur and proved the procedure for issuing the Kisan Vikas Patra. Om Prakash Chauhan (PW-14) was posted as a Ledger Clerk in the Post Office and proved the entries in the ledger. Sanjay Verma (PW-15) proved the Dispatch Register. ASI Bhupiner Pal (PW-16) investigated the case. Shamsher Singh was posted as Sessions Judge Kinnuar, Sessions Division, at Rampur Bushahr, H.P., who filed the complaint against the accused.

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The accused in his statement under Section 313 of Cr. P.C. denied the prosecution case in its entirety. He claimed that he had handed over ₹1,25,000/- at the Post Office in the presence of the parties. He examined Vidya Chand to prove this fact.

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Learned Trial Court framed an additional Charge against the accused for the commission of an offence punishable under Section 420 of IPC. No evidence was led by the prosecution or by the accused after the addition of the charge.

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The learned Trial Court held that the withdrawal of

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₹ 1,25,000/- was not disputed. The plea taken by the accused that

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he had handed over the amount at the post office and he was called to the office due to which he could not get Kisan Vikas Patra was rejected. It was held that once the money was entrusted to the accused to get the Kisan Vikas Patras issued, the accused would be liable if he had failed to get the Kisan Vikas Patras issued. The prosecution is not required to prove the exact manner of misappropriation and proof of dominion over the money was sufficient. There was no requirement for the sanction; therefore, the accused was convicted of the commission of the offences punishable under Sections 409 and 420 of IPC and he was sentenced to undergo rigorous imprisonment for three years and pay a fine of ₹5000/- each and in case of default of payment of fine to further undergo simple imprisonment for three months each for the commission of aforesaid offences.

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Being aggrieved from the judgment and sentence awarded by the learned Trial Court, the accused preferred an appeal, which was decided by the learned Sessions Judge, Rampur. Learned First Appellate Court concurred with the findings recorded by the learned Trial Court and held that the accused was entrusted with ₹1,25,000/-. His plea that he had handed over the

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money to the official of the post office was rejected. It was duly proved that Kisan Vikas Patras were not issued in favour of the claimants; hence, the accused was rightly convicted for the commission of an offence punishable under Section 409 of IPC. No case of cheating was made because the money was entrusted to the accused and was not obtained dishonestly by misrepresentation. Hence, the conviction of the accused for the commission of an offence punishable under Section 420 of IPC and the consequent sentence were set aside, whereas, the conviction and sentence for the commission of an offence punishable under Section 409 of IPC were upheld.

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Being aggrieved from the judgments delivered by the learned Courts below, the present revision has been filed, asserting that the learned Courts below erred in convicting and sentencing the accused. The defence witness categorically supported the version of the accused that he (the accused) had handed over the money at the counter of the post office. The original documents were not produced and the prosecution relied upon the photocopies of the documents. The learned Courts below erred in relying upon the photocopies of the documents;

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therefore, the judgments and order passed by the learned Courts below are not sustainable. It was prayed that the present revision be allowed and judgments and order passed by the learned Courts below be set aside.

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I have heard Mr B.S.Chauhan, learned Senior Counsel assisted by Mr Vaibhav Thakur, learned Counsel for the petitioner and Mr R.P.Singh, learned Deputy Advocate General for the respondent-State.

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Mr. B.S. Chauhan, learned Senior Counsel submitted that the learned Courts below erred in convicting and sentencing the accused. The plea taken by the accused that he had handed over the money at the counter of the post office was duly proved by the defence witness. The learned Court below did not appreciate the testimony of the defence witness in proper perspective. There was no sanction for prosecuting the accused. He submitted in the alternative that the sentence imposed by the learned Trial Court was harsh. The accused is an old person and his family members are dependent upon him. His family members will adversely suffer in case of his imprisonment. He prayed that

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the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr. R.P.Singh, learned Deputy Advocate General supported the judgments and order passed by the learned Courts below and submitted that no interference is required with the same.

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

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The present revision has been filed against the concurrent findings of the fact recorded by the learned Trial Court and the learned Appellate Court. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional Court is not an appellate Court and it can only rectify the latent defect, errors of jurisdiction or the law. It was observed on page 207:-

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise

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the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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11. This Court in Manju Ram Kalita v. State of Assam [ Manju Ram Kalita v. State of Assam , (2009) 13 SCC 330 : (2010) 1 SCC (Cri) 1015] , while dealing with the scope of reappreciation of evidence by higher Court in criminal revision, observed in paras 9, 10 and 11 of the judgment as under : (SCC pp. 333-34)

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“ 9 . So far as Issue 1 is concerned i.e. as to whether the appellant got married toSmtRanjuSarma, is a pure question of fact. All three courts below have given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon the fruitless task of

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determining the issues by reappreciating the evidence.

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10 . This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from normal practice.

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‘ 9 . … The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by a violation of any rule of law or procedure.’ (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136 ] , SCC p. 139, para 9)

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11 . Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with.”

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The ingredients of Section 409 of IPC were explained

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by the Hon’ble Supreme in Sadhupati Nageswara Rao v. State of

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A.P. , (2012) 8 SCC 547 . It was observed:-

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14. In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409 IPC, two ingredients are to be proved, namely,

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( i ) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty-bound to account for; and

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( ii ) the accused has committed a criminal breach of trust. What amounts to a criminal breach of trust is provided under Section 405 IPC.

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The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly ( i ) entrustment, and ( ii ) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his use to the detriment of the persons who entrusted it.

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A similar view was taken by the Hon’ble Supreme

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Court in N. Raghavender v. State of A.P., (2021) 18 SCC 70 , wherein it

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was held:-

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45. Section 409IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the

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property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust.(See Sadhupati Nageswara Raov.State of A.P.[Sadhupati Nageswara Raov.State of A.P., (2012) 8 SCC 547 : (2012) 3 SCC (Cri) 979 : (2012) 2 SCC (L&S) 638 ] )

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46. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 is a sine qua non for making an offence punishable under Section 409IPC. The expression “criminal breach of trust” is defined under Section 405IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405IPC, the following ingredients must be satisfied:

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

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46.2. That person has dishonestly misappropriated or converted that property to his use.

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46.3. Or that person is dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract.

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47. It ought to be noted that the crucial word used in Section 405IPC is “dishonestly” and therefore, it

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presupposes the existence of mens rea . In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for one's use and to the exclusion of the owner.

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48. No sooner are the two fundamental ingredients of “criminal breach of trust” within the meaning of Section 405IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409IPC, for which it is essential to prove that:

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( i ) The accused must be a public servant or a banker, merchant or agent;

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( ii ) He/She must have been entrusted, in such capacity, with property; and

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( iii ) He/She must have committed a breach of trust in respect of such property.

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49. Accordingly, unless it is proved that the accused, a public servant or a banker, etc. was “entrusted” with the property which he is duty-bound to account for and that such a person has committed criminal breach of trust, Section 409IPC may not be attracted. “Entrustment of property” is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was “entrusted” to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the “entrustment” is admitted by the accused or has

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been established by the prosecution, the burden then shifts on the accused to prove that the obligation visà-vis the entrusted property was carried out in a legally and contractually acceptable manner.

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In the present case, the entrustment of the amount

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was not disputed. The accused specifically stated in his statement recorded under Section 313 of Cr. P.C. that he had handed over ₹1,25,000/- to the official at the Post Office.

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Vidya Chand (DW-1) also stated that the accused had withdrawn the money from the State Bank of India and H.P. State Co-Operative Bank. The accused filled in the documents and handed over the money to the official at the Post Office. He (the accused) was called in the meantime and he left thereafter.

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Deepak Kumar (PW-6) stated that the accused came to him on 22.05.1998. The accused produced a refund voucher and an authority letter. He (Deepak Kumar) passed the same and made an entry in the scroll. He was not cross-examined at all, which means that his testimony regarding this fact was not disputed.

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Shakuntla Devi (PW-4) handed over ₹1,25,000/- to the accused on 22.05.1998 vide Token No. 40 and made an entry in the Cash Payment Register. She proved the Authority Letter and the copy of the Cash Payment Register (Ext.PW-4/A). She stated

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in her cross-examination that the payment was made in favour ofJitwar Singh. One person accompanied Puran Lal, at the time of payment but she did not know the name of that person.

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It is apparent from the cross-examination of this witness that she had handed over ₹ 1,25,000/- to the accused vide Token No. 40. This point of her testimony was not challenged in the cross-examination. Her statement is also corroborated by the statement of the accused under Section 313 of Cr.P.C. and the testimony of Vidya Chand (DW-1). Thus, it was duly proved by the oral evidence that an amount of ₹1,25,000/- was disbursed to the accused.

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Sukh Ram (PW-3) stated that the explanation of the accused Puran Chand (Ext.PW3/A) was called. The accused submitted a reply (Ext.PW3/B) to the explanation on 12.05.2014. This part of the testimony was not challenged in the crossexamination. The reply (Ext.PW-3/B) reads that the accused had withdrawn an amount of ₹ 1,25,000/- for getting Kisan Vikas Patras issued. He claimed that he had handed over the money to the employee of the Post Office at the counter in the presence of the claimants and Sh. N.C. Chauhan their Advocate. No receipt was

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issued in his favour. It was possible that an entry of the deposit was made in the record and the Kisan Vikas Patras might not have been prepared due to the negligence of the official. This reply also establishes the fact that money was withdrawn by the accused to get the Kisan Vikas Patra.

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Thus,the essential ingredient of the commission of the offence punishable under Section 409 of IPC that money should have been entrusted to the accused was duly proved.

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It is not disputed that money was withdrawnfor preparing the Kisan Vikas Patra. It is also not disputed that Kisan Vikas Patras were not prepared. The accused has taken a plea that the money was given to the official at the Counter of Post Office and he was called to the Office. He examined Vidya Chand (DW-1) to establish this fact. Reliance was also placedupon the statement of Sanjay Verma (PW-15), who stated in his cross-examination that he was directed to call the accused to the office. Even if this plea is accepted to be correct, the same will not help the accused.

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It was laid down by the Hon'ble Supreme Court in State of H.P. versus Karanvir (2006) 5 SCC 381 that where the entrustment is admitted by the accused, it is for him to discharge

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the burden that entrustment has been carried out as accepted and

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the obligation has been discharged. It was observed: -

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Mrs K. Sarada Devi learned counsel appearing on behalf of the respondent would submit that no material was brought on record by the prosecution to show as to how the respondent had utilized the amount. In our opinion, the same was not necessary. In view of the admitted fact, we think that it was for the respondent himself to prove the defence raised by him that the entire amount had not been paid to him by the complainant. The learned Judge had rejected the said defence.

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The actual manner of misappropriation, which is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the respondent had failed to produce any material for this purpose, the prosecution should not suffer therefor.

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This position was reiterated in the Mustafikhan Versus

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State of Maharashtra (2007) 1 SCC 623, wherein it was observed:-

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To sustain a conviction under Section 409 IPC, the prosecution is required to prove that (a) the accused, a public servant was entrusted with the property for which he has duty bound to account, (b) the accused had misappropriated the property.

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Where the entrustment is admitted by the accused, it is for him to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged.

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The above position was reiterated in Jagat Narayan Jha v. State of Bihar (1995 (Supp) 4 SCC 518) .

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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 the 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.

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In the present case, the money was withdrawn for

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preparing the Kisan Vikas Patras and the obligation would have been discharged after the Kisan Vikas Patras were prepared and

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handed over in the office. The plea that the money was handed over to the official at the counter of the Post Office is not sufficient to discharge the obligation. Even if the accused was called to the office, it was for him to collect the Kisan Vikas Patras and if the Kisan Vikas Patras were not handed over to him, to

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make a complaint to District & Sessions Judge to this effect but the accused had failed to do so. Therefore, the plea taken by the accused that he is not responsible for misappropriation and the

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money was misappropriated by the official of the Post Office cannot be accepted.

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Otherwise on merits, this plea has not been proved. Jitwar Singh (PW-8) stated that the money was not paid to him till the date of deposition. He denied that the money was handed over to the official in the Post Office in his presence.

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N.C. Chauhan, (PW-11), denied that he and Jitwar Singh had visited the bank. He was not aware that Vidya Chand etc. had also visited the Post Office. He denied that there was any negligence on the part of the Post Master regarding the issuance of the Kisan Vikas Patras.

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Sukh Ram (PW-12), specifically stated that as per the record no money was handed over to him except in the cases in which Kisan Vikas Patras were issued. He denied in his crossexamination that ₹1,25,000/- was deposited by Puran Lal with the Accountant. He stated that the official of the Court remains in the Post Office till the issuance of the Kisan Vikas Patra. He denied that he had handed over Kisan Vikas Patrasto the party instead of handing it over to the Court.

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Ram Krishan (PW-9), stated that as per the record maintained in the office, no Kisan Vikas Patras were issued in the name of the claimants and he had handed over the record to the police to this effect. His statement is corroborated by the detail of the Kisan Vikas Patras, issued on 22.05.1998 till 27.05.1998, (Ext.PW-9/1 to Ext.PW-9/12), in which the names of the claimants have not been mentioned. Hence, his testimony that no Kisan Vikas Patras were issued in favour of the claimants on that day has to be accepted as correct.

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The contemporaneous conduct of the accused also does not establish his plea that he had handed over the money to the official at the counter of the Post Office and Kisan Vikas Patras were not handed over to him. Even if it is accepted to be correct that the money was handed over in good faith as claimed by the accused, the accused would not have remained silent for such a long time when no Kisan Vikas Patras were handed over to him. He would have made a complaint to the Post Master or the learned District & Sessions Judge, immediately to the effect that he had handed over the money to the official of the Post Office at the counter but no Kisan Vikas Patras were handed over to him.

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The fact that the accused remained silent can only lead to one inference that no such money was handed over by him any official and this plea was not correct.

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Therefore, the accused had failed to establish that the money was utilized for the purpose, for which it was entrusted to him, whereas, the prosecution succeeded in establishing that the money was entrusted to the accused for preparing the Kisan Vikas Patras, which were not prepared. Hence, the essential ingredients for the commission of an offence punishable under Section 409 of IPC were duly satisfied and the learned Trial Court had rightly convicted the accused.

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It was submitted that there was no prosecution sanction against the accused and the proceedings are not maintainable. This submission cannot be accepted. It was laid down by the Bombay High Court in Rajkumar Anandilal v. State of Maharashtra, 2005 SCC OnLine Bom 1597: 2005 Cri LJ 4665 : (2006) 1 Bom CR (Cri) 72 that the sanction is required in cases of those public servants who are removable from their office only with the sanction of the Government. It was observed:

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7. With this preliminary discussion relating to the nature of the act committed by the accused we now come to the legal objection based upon Section 197(2) of the Criminal Procedure Code, 1973. It is an admitted fact that no sanction was taken under Section 197(2) of the Criminal Procedure Code, 1973. There was also no dispute raised before us and it was the admitted position that the Railway Protection Force would be an armed force of the Union of India within the meaning of Section 197(2) of the Code of Criminal Procedure. It was contended that whereas under Section 197(1) sanction was required to be taken from the Government only in respect of “public servant not removable from his office save by or with the sanction of the Government”. There was no such requirement in Section 197(2). Section 197(2) applied to any member of the Armed Forces of the Union. The limitation contained in Section 197(1) was not restated in Section 197(2) of the said Act and could not be read into the said sub-section. We have heard both sides exhaustively on this aspect of the matter. We find that the matter is not res-integra and is covered by three judgments of the Apex Court. In the case of K. Ch. Prasad v. Smt. J. Vanalatha Devi reported in (1987) 2 SCC 52: AIR 1987 SC 722 , the question before the Apex Court was whether the sanction was required for prosecuting an employee of a nationalized bank who held a post which did not require the sanction of the Government for removal. In paragraph 5 of the said judgment the Apex Court reproduced the text of the entire Section 197 of the Criminal Procedure Code (inclusive of subsection-2) and thereafter, observed in paragraph 6 as under:

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“It is very clear from this provision that this Section is attracted only in cases where the public servant is

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such Who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that the appellant is a public servant still provisions of Section 197 are not attracted at all.”

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8. A subsequent judgment of the Apex Court in the case of DrLakshmansinghHimatsingh Vaghela v. Naresh Kumar Chandrashankar Jha reported in (1990) 4 SCC 169: AIR 1990 SC 1976 , the question before the Apex Court was as to whether an employee of the Municipal Corporation of Ahmadabad holding the post of Public Analyst under the Food Adulteration Act, can be prosecuted without sanction under Section 197 of the Criminal Procedure Code, 1973. The Apex Court came to a finding that the appellant before the Apex Court was an employee of the Municipal Corporation of Ahmadabad and the fact that he was appointed as a Public Analyst did not confer on him the status of an Officer of the Government or Public Servant. In paragraph 5 of the said judgment, the Apex Court observed as under:—

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“Section 197, Cr. PC clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Government to their prosecution be necessary.”

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9. In the case of Director of Inspection and Audit v. C.L. Subramaniam reported in 1994 Supp (3) SCC 615 : (AIR 1995 SC 866) the accused were customs officers and the question was whether they could be prosecuted without sanction under Section 197 of the Criminal Procedure Code. In paragraph 6 of the said judgment the Apex Court analyzed Section 197 of the Criminal

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Procedure Code and the object of the said section and observed as under:—

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“6) If the provisions of Section 197 Cri. P.C. are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the section is to provide guard against vexatious proceedings against judges, magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution.”

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10. It was sought to be argued before us by relying upon the several authorities that under the doctrine of precedents, the ratio laid down in the judgments could not be read dehors the facts of the case. The argument was that in the aforesaid three cases, the persons who were prosecuted were either not public servants or were public servants not working in the Armed Forces of the Union. Though several judgments were cited in this regard, we intend, to cite only one as there is no dispute about the proposition, which is being propounded. The latest judgment which comprehensively covers the issue raised is the judgment of the Apex Court in the case of Zee Tele Films Ltd. v. Union of India reported in 2005 AIR SCW 2985 : ((2005) 4 SCC 649: AIR 2005 SC 2677) . In para Nos. 275, 276, 277, 278, 279, Apex Court laid down as under:

¶143

275. Are we bound hands and feet by Pradeep Kumar Biswas (Reported in (2002) 5 SCC 111) (supra). The

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answer to the question must be found in the law of precedent. A decision; if is trite, should not be read as a statute. A decision is an authority for the question of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known; must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it. (See Punjab National Bank v. R.L. Vaid, (2004) 7 SCC 698 : (2004 Cri LJ 4246 ).

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Although decisions are galore on this point, we may refer to a recent one in State of Gujarat v. Akhil Gujarat Pravasi V. Mahamandal, ((2004) 11 SCC 223: AIR 2004 SC 3849 ) wherein this Court held:

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“It is trite that any observations made during the course of reasoning in a judgment should not be read divorced from the context in which they were used.”

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277. It is further well-settled that a decision is not an authority for the proposition which did not fall for its consideration.

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It is also a trite law that a point not raised before a court would not be an authority on the said question.

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In A-One Granites v. State of U.P., (2001) 3 SCC 537 : (AIR 2001 SC 1203) it is stated as follows:

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“11. This question was considered by the Court of Appeal; in Lancaser Motor Co. (London) Ltd. v. Bremth Ltd., (1941) 1 KB 675 , and it was laid down that when no consideration was given to the question, the decision cannot be said to be

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binding and precedents sub silentio and without arguments are of no moment.

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(See also State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, Arnit Dasv. State of Bihar, (2000) 5 SCC 488 : (2000 Cri LJ 2971) (Para 20), Bhavnagar University v. Palitana Sugar Mills (P) Ltd., (2003) 2 SCC 111 : (AIR 2003 SC 511) Cement Corporation of India Ltd. v. Purya, (2004) 8 SCC 270 : (AIR 2004 SC 4830) Bharat Forge Co. Ltd. v. Uttam Manohar Nakate, JT 2005 (1) SC 303 : ((2005) 2 SCC 489: AIR 2005 SC 947) and Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav, Para 42, (2005) 1 SCALE 385 : ((2005) 2 SCC 42: AIR 2005 SC 921).

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11. In the present case however, we find that in the case of K. Ch. Prasad, ((1987) 2 SCC 52: AIR 1987 SC 722) (supra) the Apex Court has interpreted Section 197 as a whole after reproducing the body of the Section. It was fairly admitted before us that the present appellant though a member of the Armed Forces of the Union would clearly be a public servant within the meaning of clauses 8 and 12 of Section 21 of the Penal Code, 1860. He would therefore, be a person who would fall squarely within the meaning of a public servant within the meaning of Section 197(1) of the Criminal Procedure Code and would be subject to the same restrictions under Section 197(1). It appears that Clauses 2 and 3 were of Section 197 introduced for, the first time when the new Criminal Procedure Code was promulgated in 1973. The changes to Section 197 were suggested by the 41^st Report of the Law Commission of India, published by the Government of India in September 1969. On reading this report, it appears that there was no specific recommendation for adding subsections (2) and (3) to Section 197 in the new Code. Since, it is admitted before us that a member of the

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Armed Forces of the Union would be a public servant within the meaning of Clauses 8 and 12 of Section 21 of the Penal Code, 1860, it appears to us that Clauses 2 and 3 were clarificatory in nature. Since only Commissioned Officers in the Military, Naval or Air Forces of India were specified as public servants, perhaps the need was felt to clarify that all members of the Armed Forces of the Union would also be public servants requiring sanction for prosecution. On the interpretation put by the Apex Court on Section 197 as a whole, it follows that the limitations regarding the classes of public servants covered by Section 197(1) would govern all categories of public servants including those covered by Sections 197(2) and 197(3). In our view, therefore, Section 197 of the Criminal Procedure Code was not attracted to the prosecution of the accused in the present case because the accused was not a person who was removable from his office “save by or with the sanction of the Government.” This contention on behalf of the accused must, therefore, fail.

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In the present case, it is not proved that the accused is not removable from his post exceptwith the sanction of the Government; therefore, the provisions of Section 197 of Cr.P.C. will not apply to him.

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In any case, it was laid down by the Hon'ble Supreme Court in State of Kerala Versus V. Padmanabhan Nair AIR 1999 S.C. 2405 that it is no part of the job of the government servant to

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misappropriate the public money and no sanction is required to try a public servant for the commission of offences punishable

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under Sections 406, 409 and 120-B of IPC. It was observed:-

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That apart, the contention of the respondent that for offences under Ss. 406 and 409 read with S. 120-B of the IPC sanction under S. 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in ShreekantiahRamayyaMunnipalli v. State of Bombay, AIR 1955 SC 287: (1955 Cri LJ 857) and also Amrik Singh v. State of Pepsu, AIR 1955 SC 309 : (1955 Cri LJ 865) that it is not every offence committed by a public servant which requires sanction for prosecution under S. 197 of the Code, nor even every act done by him while he is engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (1972 Cri LJ 707) (supra) as follows:

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"As far as the offence of criminal conspiracy punishable under S. 120-B, read with S. 409, IPC is concerned and also S. 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in S. 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under S. 197 of the Code of Criminal Procedure is, therefore, no bar."

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Similarly, it was held by the Hon'ble Supreme Court in

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Shambhoo Nath Versus State of U. P. AIR 1997 S.C. 2102 that it is no

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part of the duty of the government servant to fabricate the record or misappropriate the public funds. Hence no sanction is required for prosecuting him for the commission of the offence. It was observed:

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“5. The question is: when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public funds etc. can be said to have acted in the discharge of his official duties? It is not the official duty of the public servant to fabricate a false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.

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The learned counsel for the respondent, Mr Dhingra, has contended that the Magistrate came to the conclusion that it was not a part of the duty of the respondent to deal with either the preparation of the record or payment thereof. It was the duty of the Cashier and, therefore, the learned Magistrate was right in his conclusion that the respondent had not committed any offence. We desist to go into that aspect. It is made clear that we have not expressed any opinion on the merits of the case. We have only dealt with the contention as to the need for sanction and as

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to where the sanction becomes necessary under Section 197(1) of Cr. P. C.”

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In State of H. P. Versus M. P. Gupta (2004) 2 SCC 349 the

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accused was charged with the commission of offences punishable under Sections 467, 468 & 471 of IPC. It was submitted that he could not have been prosecuted without obtaining the sanction. Repelling this contention, it was held:

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That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in ShreekantiahRamayyaMunnipalli's case (supra) and also Amrik Singh's case (supra) that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, etc. v. State of Bihar (1972(3) SCC 89) as follows:

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"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct.

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Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."

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The above views are reiterated in State of Kerala v. Padmanabhan Nair (1999(5) SC 690) . Both Amrik Singh (supra) and Shreekantiah (supra) were noted in that case. Sections 467, 468 and 471 IPC related to forgery of valuable security, Will etc; forgery for the purpose of cheating and using a genuine forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code, is, therefore, no bar.

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Thus, there was no requirement of prosecution

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sanction and prosecution case cannot be discarded for want of sanction.

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It was submitted that the prosecution has relied upon the photocopies of the documents and learned Trial Court erred in convicting the accused based on the photocopies. This submission is not acceptable. The witnesses had produced the original record before the larned Trial Court and the photocopies were exhibited after they were found to be correct copies of the record produced by the witnesses. Thus, there is no infirmity in the procedure adopted by the learned Trial Court.

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It was submitted that the learned Trial Court had

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imposed harsh sentence. This is not acceptable. The accused was a public servant, who was entrusted with the public money. He did not utilize the same for the purpose for which it was handed over to him. Such an offence cannot be viewed lightly, especially in the cases of judiciary where the public repose their faith to protect their rights. If the protector becomes a violator, it will lead to a collapse in the rule of law, therefore, the offences committed by the protector of rights have to be dealt with deterrently. In view of this consideration, a sentence cannot be said to be excessive.

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44. No other point was urged.

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Consequently, the present revision petition fails and

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the same is dismissed. Records of the learned Courts below be sent back forthwith.

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(Rakesh Kainthla) Judge

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07^th March, 2024 (ravinder)

Puran Lal v. State

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Puran Lal v. State

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