Gian Singh Vs State of Hp

dated 19.05.2014, passed by learned Sessions Judge (Forest), Shimla, H.P. ( learned Appellate Court ) vide which the judgment of conviction dated 16.03.2009 and order of sentence dated

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

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20.03.2009, passed by learned Judicial Magistrate First Class, Court No. IV, Shimla, H.P. ( learned trial Court ) were partly 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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Briefly stated, the facts giving rise to the present revision are that the police presented a challan before the learned trial Court against the accused for the commission of an offence punishable under Section 409 of the Indian Penal Code (IPC). It was asserted that Gian Singh was posted as a Conductor in Himachal Road Transport Corporation (HRTC). Shimla–Shilaru bus developed a defect on 20.10.1993. It was taken to Shilaru after repair. The driver Ramesh Chand (PW-12) was directed to ply the bus from Manan to Shimla. The accused was directed to render services as a conductor on the bus. However, he did not reach Shilaru, and the driver Ramesh Chand (PW-12) brought the bus from Shilaru to Shimla without any passengers. Kedar Chand (PW1) filed an application (Ext.PW-1/A) to this effect before the Regional Manager, HRTC, Tara Devi. Shyam Singh (PW-4) had issued a denomination box to the accused on 19.10.1993. The details of which were mentioned in way bill (Ext.PW-3/A). The tickets worth ₹7826.50 were not deposited by the accused till 17.08.1994.

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Hence, an application (Ext.PW-6/B) was filed before the Police regarding the misappropriation of ₹7826.50. The Police registered the F.I.R (Ext.PA). Baldev Singh (PW-14) investigated the matter. He seized the tickets and currency notes from the accused vide memo (Ext.PW-9/A). He also seized the way bills vide memos (Ext.PW13/A, Ext.PW-14/A and Ext. PW-14/B). He put the currency notes and tickets in a cloth parcel and sealed the parcel with a seal impression ‘M’. He obtained a sample seal (Ext.PW-14/C) on a separate piece of cloth. He seized the duty abstract (Ext.PZ) and recorded the statements of witnesses as per their version. The Challan was prepared and presented before the Court after completion of the investigation.

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The learned trial Court found sufficient reasons to summon the accused. When the accused appeared, he was charged with the commission of an offence under Section 409 of the IPC, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined fourteen witnesses to prove its case. Kedar Chand (PW-1) deputed Gian Singh on duty on the bus coming from Manan to Shimla. Roop Lal (PW-3) proved the waybills. Shyam Singh (PW-4) had issued the tickets to the accused. Ram Saran (PW-2), Inspector Bhajan Dev Negi (PW-5),

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and Sanjeev Kumar (PW-11) partly investigated the matter. Tilak Raj Gupta (PW-6) produced the waybills. Gopal Singh (PW-7) checked the register and verified that tickets worth ₹7826.50 were issued to the accused. Deep Ram (PW-8) proved that the bus coming from Manan to Shimla had no conductor. Kali Ram (PW-9) witnessed the recovery. Ravinder Sharma (PW-10) prepared the challan. Ramesh Chand (PW-12) was driving the bus coming from Manan. Gian Chand (PW-13) proved that the tickets were issued to the accused. Baldev Singh (PW-14) investigated the matter.

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The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that he was posted as a conductor in HRTC, and that he was deputed to bring the bus bearing registration No. HPS-6929 on 20.10.1993. He admitted that the bus was taken without a passenger and explained that the bus had developed a defect. He denied the rest of the prosecution's case and claimed that he was innocent and was falsely implicated. He did not produce any evidence in his defence.

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The learned trial Court held that the statements of the prosecution witnesses corroborated each other. The oral testimonies were supported by the documents, in which it was mentioned that the tickets worth ₹7826.50 were handed over to the

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2026:HHC:15685 accused. He absented himself from the duty and failed to deposit the unused tickets and the money realised by the sale of the tickets. He produced the tickets worth ₹6,807/- and currency notes worth ₹1,019/- along with the Waybill during the investigation, which showed that he had temporarily misappropriated the amount. He was a public servant and was liable for the commission of an offence punishable under section 409 of the IPC. Hence, the learned trial Court convicted the accused of the commission of an offence punishable under section 409 of IPC and sentenced him to undergo simple imprisonment for one year, pay a fine of ₹3000/- and in default of payment of fine to undergo simple imprisonment for seven days.

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Being aggrieved by the judgment and order passed by the learned trial Court, the accused filed an appeal which was decided by the learned Sessions Judge (Forest) Shimla, H.P. (learned Appellate Court). Learned Appellant Court concurred with the findings recorded by the learned trial Court that the tickets worth ₹7,826.50/- were entrusted to the accused on 19.10.1993. The accused absented himself from his duties and did not deposit the cash amount or the unsold tickets. He produced unsold tickets worth ₹ 6,807.50 and cash worth ₹1,019 to the police on 18.01.1994.

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The non-production of the case property before the Court was not fatal because once the entrustment was proved, the burden shifts upon the person to whom the articles are entrusted to explain as to what happened to the entrusted articles. The accused had not provided any explanation, and he was rightly held guilty of the commission of an offence punishable under Section 409 of the IPC. Learned Trial Court had imposed a harsh sentence. Hence, the learned Appellate Court reduced the substantive sentence of imprisonment till the rising of the Court but maintained the fine.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused has filed the present revision asserting that the learned Courts below erred in appreciating the material on record. The testimonies of the witnesses were not satisfactory. They contradicted each other on material particulars. The accused had not reported for duty as per the prosecution’s case, and he could not have sold the ticket to any person. Kedar Chand (PW-1) stated that the accused was deputed on 20.10.1993, whereas Ramesh Chand (PW-12) stated that he proceeded with the bus on 19.10.1993 and returned from Shilaru to Theog without any passengers. This was a major contradiction, which made the prosecution’s case doubtful. The case property was not produced

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before the Court, and an adverse inference should have been drawn against the prosecution. Therefore, it was prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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I have heard Mr Naresh Sharma, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State.

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Mr Naresh Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. The prosecution had not produced the case property before the Court, which made the prosecution's case highly suspect. The accused could not have sold any tickets when he had not reported for duty. The statements of prosecution witnesses contradicted each other on material aspects, and these contradictions were ignored by the learned Courts below. Hence, he prayed that the present revision be allowed and the judgments and order passed by the learned Courts below be set aside.

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Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State, submitted that both the Courts have concurrently held that the tickets were entrusted to the accused and he had failed to deposit the unsold tickets, and the money realised

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after the sale of the tickets. This Court should not re-appreciate the evidence while exercising the revisional jurisdiction. The Learned Appellate Court has already taken a lenient view, and no further leniency is required in the matter. Hence, he prayed that the present revision be dismissed.

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

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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 a revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at 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 the jurisdiction like 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 to satisfy 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 that is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional

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Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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14. This position was reiterated in State of Gujarat v.

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Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695:

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“14. The power and jurisdiction of the Higher Court under Section 397 CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.

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15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986 , where the scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13)

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not

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exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

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13 . Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even the framing of the charge is a much-advanced stage in the proceedings under CrPC.”

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It was held in Kishan Rao v. Shankargouda , (2018) 8 SCC

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165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC OnLine SC 651 that it is impermissible for the High Court to re-appreciate the evidence and come to its conclusions in the absence of any perversity. It was observed at page 169:

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“12. This Court has time and again examined the scope of Sections 397/401 CrPC and the grounds for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452: 1999 SCC (Cri) 275] , while considering the scope of the revisional jurisdiction of the High Court, this Court has laid down the following: (SCC pp. 454-55, para 5)

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5 . … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting a miscarriage of

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justice. But the said revisional power cannot be equated with the power of an appellate court, nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise amount to a gross miscarriage of justice. On scrutinising the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation in concluding that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. …”

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13. Another judgment which has also been referred to and relied on by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke, (2015) 3 SCC 123: (2015) 2 SCC (Cri) 19] . This Court held that the High Court, in the exercise of revisional jurisdiction, shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is nonconsideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. The following has been laid down in para 14: (SCC p. 135)

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“ 14 . … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse

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or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction.”

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16. This position was reiterated in Bir Singh v. Mukesh

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Kumar , (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

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309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

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“16. It is well settled that in the exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

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17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is, therefore, in the negative.”

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A similar view was taken in Sanjabij Tari v. Kishore S.

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Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

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“27. It is well settled that in exercise of revisional jurisdiction, the High Court does not, in the absence of perversity, upset concurrent factual findings [See: Bir Singh (supra)]. This Court is of the view that it is not for the Revisional Court to re-analyse and re-interpret the evidence on record. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GMBH, (2008) 14 SCC 457 , it is a well-established principle of law that the Revisional Court will not interfere, even if a wrong order is passed by a Court having jurisdiction, in the absence of a jurisdictional error.

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28. Consequently, this Court is of the view that in the absence of perversity, it was not open to the High Court in the present case, in revisional jurisdiction, to upset the concurrent findings of the Trial Court and the Sessions Court.

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The present revision has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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The ingredients of Section 409 of IPC were explained by

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the Hon’ble Supreme Court 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 a 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, a banker or an 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 is the requirement 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 Court

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in N. Raghavender v. State of A.P., (2021) 18 SCC 70 , wherein it 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 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 Rao v. State of A.P. [Sadhupati Nageswara Rao v. 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 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

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

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The accused admitted in his statement recorded under

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Section 313 of the Cr.P.C. that he was working as a conductor in HRTC in the year 1993-94 and that he was deputed for bringing the

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bus bearing registration No. HPS-6929 on 20.10.1993. Thus, the major part of the prosecution’s case has not been disputed by the accused.

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Ramesh Chand (PW-12) was the driver in the bus bearing registration No.HPS-6929. He stated that he had driven the bus to Kashaini on 19.10.1993. The bus developed a defect at Bagi, and this fact was reported to HRTC. The mechanic repaired the bus and directed him to drive the bus from Manan to Shimla. The mechanic also told Ramesh Chand (PW-12) that the conductor would meet him at Shilaru. He waited for the conductor at Shilaru, but no conductor came. He informed the in-charge Bus Stand Theog, H.P., that no conductor had reported for duty. The incharge directed him to drive the empty bus to Shimla. He drove the bus to Shimla.

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The statement of Ramesh Chand (PW-12) that the bus was taken without the passengers was admitted by the accused in his statement recorded under section 313 of Cr.P.C. The accused stated that the bus was taken without passengers as it had developed a snag. This fact is not correct. The bus had developed a defect on 19.10.1993 and was repaired on the same day. The driver was directed to drive the bus from Manan to Shimla on 20.10.1993.

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There was no defect in the bus on 20.10.1993, and had it been so, it would not have been possible for the driver to drive it from Manan to Shimla. Thus, the explanation provided by the accused cannot be accepted, and the statement of Ramesh Chand (PW-12) that the conductor had not reported for duty has to be accepted as correct.

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Kedar Chand (PW-1) stated that conductor Shiv Lal had reported on 20.10.1993 that the bus had a defect. He directed the accused Gian Chand to accompany the bus from Manan to Shimla; however, Gian Singh did not report for duty.

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It was submitted that the testimony of this witness is not correct because there is a contradiction between his testimony and the statement of Ramesh Chand. This submission is only stated to be rejected. Both the witnesses have consistently stated that the bus was to be driven from Manan to Shimla on 20.10.1993. The bus had developed a defect on 19.10.1993 when it was deputed to Kashaini. Thus, there is no real contradiction between the testimonies of Kedar Chand (PW-1) and Ramesh Chand (PW-12).

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The statement of this witness is duly corroborated by the application (Ext.PW-1/A) made to the Regional Manager, Tara Devi, in which it was stated that Gian Singh was deputed on the Manan-Shimla route, but he had not reported for his duties. This

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was a contemporaneous document and corroborated his statement that the accused had not reported for his duties.

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Deep Ram (PW-8) stated that the bus bearing registration HPS-6929 was coming from Manan to Shimla on 20.10.1993. The accused was deputed as a conductor, but when the bus stopped at the Theog Bus-Stop, the conductor was missing. He reported this fact to HRTC, Shimla. His testimony corroborates the statements of Ramesh Chand (PW-12) and Kedar Chand (PW-1) that the accused was found missing on 20.10.1993.

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Thus, it was duly proved on record that the accused had not reported for his duties on 20.10.1993.

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Shyam Singh (PW-4) stated that a denomination box (Ext.PW-3/A) was issued to accused 19.10.1993. Tickets worth ₹7,826.50 were issued to the accused, but the accused did not deposit the unsold tickets and the money. His testimony is duly corroborated by Gian Chand (PW-13), who stated that he had issued denomination No. 199 for ₹ 7826.50 and the Waybill (Ext.PW-13/A). His testimony is corroborated by the duplicate bill (Ext.PW13/A), which bears the signatures of the accused regarding the receipt. His testimony that the Way bill was issued to the accused was not challenged in the cross-examination and is deemed to be accepted.

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Therefore, the statements of Shayam Singh (PW-4) and Gian Chand (PW-13) and the Way bills (Ext.PW-3/A and Ext.PW13/A) clearly proved that the tickets worth ₹7,826.50 were issued in the name of the accused.

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Tilak Raj (PW-6) stated that the accused did not report for duty and was found missing. Hence, a complaint was made to the police.

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Baldev Singh (PW-14) investigated the matter. The accused produced the currency notes worth ₹1,019/- and the unsold tickets worth ₹6,807.50, which were seized vide memo (Ext.PW9/A). This memo was signed by Hari Nand and Kali Ram (PW-9). Kal Ram (PW-9) stated that the accused had produced the tickets worth ₹6807.50 and currency notes worth ₹ 1,019/-, which were seized by the police in his presence. These were put in a cloth parcel, and the parcel was sealed with seal ‘M’. He and Hari Nand had signed the parcel. He stated in his cross-examination that the case property was not shown to him.

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His testimony that the accused had produced the currency notes, tickets and waybills was not challenged in the cross-examination and is to be accepted as correct. Therefore, it

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was proved on record that the accused had not returned the unsold tickets worth ₹6,807.50 and currency notes worth ₹ 1019/.

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In the present case, it was duly proved that the tickets worth ₹7,826.50 were entrusted to the accused in discharge of his official duties, and he had failed to return the tickets or the money.

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Therefore, that the original tickets were not shown to him, and his testimony cannot be relied upon. This submission will not help the accused. Learned Appellate Court had rightly pointed out that once the entrustment was proved, the burden shifted upon the accused to explain as to what was done by him to the tickets entrusted to him. 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 the burden that entrustment has been carried out as accepted and 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 utilised 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 is 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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36. 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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In order 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 a duty bound to account, and (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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It was submitted that the tickets were issued to the accused on 19.10.1993, and he could not have sold the tickets because he was found missing on 20.10.1993 as per the prosecution's case. This submission will not help the accused because the accused was on duty on 19.10.1993, and the sale of the tickets by him cannot be ruled out. Therefore, this submission cannot be used to reject the prosecution's case.

¶154

Therefore, both the learned Courts below had rightly held that the tickets worth ₹ 7826.50 were entrusted to the accused and he failed to deposit the unsold tickets or the money realised by the sale; therefore, he had misappropriated the property entrusted to him. The accused was posted as a conductor in the HRTC and was a public servant and was rightly held guilty of the commission of an offence punishable under section 409 of the IPC.

¶155

The learned appellate court has already reduced the sentence to till the rising of the Court. The offence under Section 409 of the IPC can be punished with imprisonment for life or with imprisonment which may extend to 10 years because the offence is serious and meant to deter public servants from misappropriating public money. Learned Appellate Court had already taken a lenient view, and no further leniency is required

¶156

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2026:HHC:15685

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