Dismissed

Sachchidanand Mishra v. State of Jharkhand

Jharkhand HC17 Jan 2020Cr.Rev./974/2008

Case brief

AI extract

What is this about?

This High Court revision application challenged a conviction and sentence under Section 408 IPC for detaining college records. The Court held that withholding records for a time without authority constitutes criminal breach of trust despite lack of permanent conversion. Sentence was modified to include a fine and time served.

What did the court decide?

Sentence modified to period already undergone plus a fine of Rs. 25,000/- to be deposited within two months; bail bond to be cancelled on failure to pay.

Sachchidanand Mishra Vs State of Jharkhand — Property and Title | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 974 of 2008

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Sachchidanand Mishra son of late Rama Prasad Mishra, resident of village- Hamidganj, P.O. & P.S. – Daltonganj, District- Palamau. … … Petitioner

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Versus

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The State of Jharkhand … … Opp. Party ---

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Abhishek Kumar, Advocate For the State : Ms. Leena Mukherjee, Advocate ---

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06 /17.01.2020

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1. Heard Mr. Abhishek Kumar, learned counsel appearing on behalf of the petitioner.

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2. Heard Mr. Leena Mukherjee, learned counsel appearing on behalf of the State.

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3. This revision application has been filed against the judgment and order of sentence dated 26.09.2005 passed by the learned Judicial Magistrate, 1^st Class, Daltonganj in G.R. Case No. 622 of 1996 (T.R. No. 246/05), whereby the petitioner has been sentenced to undergo Simple Imprisonment for two years and to pay a fine of Rs. 1,000/- and in default of payment thereof to further undergo Simple Imprisonment for three months under Section 408 of Indian Penal Code, which has been affirmed by the learned Sessions Judge, Palamau at Daltonganj in Criminal Appeal No. 112/05 with a modification that the sentence is reduced to S.I. for a term of one year instead of two years vide order dated 31.07.2008.

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4. The learned counsel for the petitioner submits that upon perusal of the impugned judgment passed by the learned Lower Appellate Court, it appears that the learned Lower Appellate Court has clearly recorded in Para-11 of the impugned judgment that there is no defalcation of any money or misappropriation or conversion of any property to his own

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use by the appellant (petitioner herein) and while passing the impugned judgment instead of acquitting the petitioner for alleged offence under Section 408 of Indian Penal Code, he reduced the sentence of the petitioner. The learned counsel submits that considering the finding recorded by the learned Lower Appellate Court that there is no defalcation of any money or misappropriation or conversion of any property to his own use by the appellant, the basic ingredients of Section 408 of IPC is not satisfied. The learned counsel further submits that in this view of the matter, it is a fit case for exercising of revisional jurisdiction by this Court to prevent the miscarriage of justice.

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5. The learned counsel for the petitioner further submits that it has been further recorded by the learned Lower Appellate Court that during investigation, the entire records were handed over to the department. The learned counsel also submits that his representation in connection with his transfer was pending and therefore, the action of retaining the records was bonafide. He submits that considering the conduct of the petitioner about return of entire records, though during investigation and also the fact that the petitioner does not have any such criminal antecedent and the fact that at present, the petitioner is about 72 years of age, some lenient view may be taken, so far as the sentence is concerned. He also submits that the petitioner has faced the rigorous of the criminal case right from the year 1996, when the case was lodged. He further submits that the petitioner was also subjected to departmental proceeding, wherein certain punishment of penalty was imposed. The learned counsel submits that the petitioner has remained in custody for more than 1 month and 10 days in connection with this case.

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6. Learned counsel appearing on behalf of the State, on the other hand, submits that the present petitioner had retained the

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records for a period of about two years, but she does not dispute the fact that it has come in the impugned judgments that during investigation of the case, the records were handed over and it has also come that the petitioner had filed certain representation in connection with his transfer. She also does not dispute the fact that as per the statement of the accused which has been recorded under Section 313 of Cr.P.C., the age of the accused at that point of time was reflecting as 55 years and accordingly, the present age of the accused would be about 72 years. She further submits that if this Court is inclined to modify the sentence, then the fine amount may be enhanced because the petitioner was purposely and dishonestly holding the records for two years without authority of law.

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7. After hearing the counsel for the parties, this Court finds that so far as the ingredient of Section 408 of Indian Penal Code is concerned, the same clearly provides that whoever, being a clerk or servant or employed as a clerk or servant, and to whom in such capacity any property or dominion over property is entrusted in any manner, commits criminal breach of trust in respect to that property, shall be punished with imprisonment of either description which may be extended up to seven years and shall also be liable for fine.

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8. “Criminal Breach of Trust” has been defined under Section 405 of Indian Penal Code which clearly provides that a entrusted with if person any property, dishonestly misappropriates it, he is guilty of criminal breach of trust. 9. “Dishonest misappropriation of property” has been defined under Section 403 of Indian Penal Code which clearly provides that whoever dishonestly misappropriates or converts to his own use any movable property, is guilty of dishonest misappropriation of property and the explanation-1 thereof provides that a dishonest misappropriation for a time only is misappropriation within the meaning of the Section.

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10. Thus, this Court is of the considered view that an entrusted property, even if, dishonestly misappropriated for a time only, the same would amount to “criminal breach of trust”.

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11. This Court finds that the learned courts below have clearly recorded concurrent finding against the petitioner that he deliberately and intentionally did not hand over the records in question to the person authorized by the Principal of the College to take over the charge of the same for two years totally flouting direction of the superior and Administrative Authority and has thereby held the institution to a ransom causing great inconvenience and hardship in the function of the institution and held that the appellant clearly committed offence under Section 408 of Indian Penal Code . The learned lower appellate court upheld the conviction, but reduce the sentence of the petitioner on the ground that there is no defalcation of any money or misappropriation or conversion of property to his own use. Upon reading of the judgement of the learned lower appellate court as a whole, this Court finds that the learned lower appellate court has come to concurrent findings which was given by the learned trial court.

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12. Thus, this Court is of the considered view that even if a person dishonestly misappropriates the official record, even for a time being, he is guilty of committing “criminal breach of trust” under Section 408 of IPC. Accordingly, the contention of the petitioner that the basic ingredient for commission of offence under Section 408 of IPC is absent, as the records were ultimately handed over by the petitioner after two years and during investigation of the case, is hereby rejected.

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13. This Court further finds that the learned Lower Appellate Court although has mentioned in Para-11 of the impugned judgment that there is no defalcation of any money or misappropriation or conversion of any property to his own use

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by the appellant. But, at the same time, in Para-9 and 10 of the said judgment, the learned Lower Appellate Court also recorded that the appellant (petitioner herein) deliberately and intentionally withheld the impugned records of the college nearly two years and accordingly, held that the appellant clearly committed the offence of “criminal breach of trust” under Section 408 of Indian Penal Code and upheld the conviction under Section 408 of IPC vide Para-10 of the impugned judgment.

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14. This Court finds that there is consistent finding of facts arrived at by the learned courts below who have found the petitioner is guilty of offence under Section 408 of IPC by appreciating the materials on record and this Court does not find any illegality or perversity in the impugned judgments. The conviction of the petitioner by the learned trial court which was upheld by the learned Lower Appellate Court are well reasoned judgments which do not suffer from any perversity or illegality, calling for any interference under revisional jurisdiction by this Court.

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15. This Court further finds that on the point of sentence, the learned counsel for the petitioner has pointed out that the petitioner has remained in custody for more than one month and ten days and the present petitioner is about 72 years of age which is apparent from his statement recorded under Section 313 of Cr.P.C. though his age is not mentioned in the judgment of conviction. Accordingly, this Court is of the considered view that some lenient view may be taken considering the following factors: -

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(a) Age of the petitioner

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(b) The case was instituted as back as on 06.06.1996 and about 24 years have passed.

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(d) There is no mention of any criminal antecedent of the petitioner in the impugned judgments.

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16. Considering the aforesaid aspects of the matter, the sentence of the petitioner is hereby modified to period already undergone and fine of Rs. 25,000/- to be deposited by the petitioner before the learned court below latest by 31.03.2020 . In case, the petitioner does not deposit the fine amount by 31.03.2020, the petitioner would undergo the sentence which has been imposed by the learned courts below and the bail bond furnished by the petitioner will be immediately cancelled by the learned court below. The learned court below shall verify the period for which the petitioner has remained in custody in connection with this case. The counsel for the petitioner has stated that the total period of custody is more than 1 month and 10 days which has not been disputed by the learned counsel appearing on behalf of the state during the course of arguments.

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17. Accordingly, the present revision application is hereby dismissed with the aforesaid modification of sentence.

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18. Let the records of the learned court below be immediately sent back.

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19. Pending interlocutory applications, if any, are dismissed as not pressed.

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20. Let a copy of this order be communicated to the learned court below through ‘FAX’.

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(Anubha Rawat Choudhary, J.)

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Mukul

Sachchidanand Mishra v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Sachchidanand Mishra v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

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