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Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition – Apex court confirmed the High court order – Complainant clearly deposed that he had handed over gold while purchasing cloth in accused shop and were not returned – accused admitted the same – enough to hold prima faice case against the accused – accused admitted it – burden lies on him to prove non-guilty = Ghanshyam …. Appellant Vs. State of Rajasthan …. Respondent = Published in/Cited in / Reported in judis.nic.in/supremecourt/filename=41078

Sec.406 I.P.C.- Criminal breach of Trust – police reported the case as false – protest petition  and it’s appeal were dismissed by lower courts – High court in revision set aside the lower courts order and remanded the case finding prima faice offence for next step allowing protest petition  –  Apex court confirmed the High court order  – Complainant clearly deposed that he had handed over gold while purchasing cloth in accused shop  and were not returned – accused admitted the same – enough to hold prima faice case against the accused  – accused admitted it – burden lies on him to prove non-guilty = 

The High Court, vide  its  judgment  dated  4.2.2009, 

 held  that  the

statement recorded by the ACJM clearly reveals that the  complainant  handed over three gold chains to the accused-appellant at the time of  purchase  of cloth  by the appellant from the complainant’s shop but the  same  were  not returned. 

Therefore, according to the High Court,  a  prima  facie  case  of

criminal breach of trust was clearly  made  against  the  accused-appellant.

The trial Court erred in observing that no entry could  have  been  made  by

the complainant in his record book  simultaneously  when  the  clothes  were

purchased by the accused appellant from the  complainant’s  shop.  

The  High

Court further held that trial court erred in proceeding on  any  presumption

when the evidence  available  on  record  proved  otherwise  and  there  was

admission by the accused. In such cases, the burden was on  the  accused  to

have  rebutted  the  allegation  against  him.  Therefore,  the  High  Court

remanded the matter back to the trial court for fresh decision in the  light

of the statements of the witnesses and evidence on record.

in the case of Onkar Nath  Mishra  and  Ors. v. State

(NCT of Delhi) and  Anr.[1]  that  in  the  commission  of  the  offence  of

criminal breach of  trust,  two  distinct  parts  are  involved.  

The  first

consists of the creation of an obligation in relation to the  property  over

which dominion or control is acquired  by  the  accused.  

The  second  is  a

misappropriation or dealing with the property dishonestly  and  contrary  to

the terms of the obligation created.  

in  the  case  of  

Jaikrishnadas  Manohardas

Desai and Anr. v. State of Bombay[2] that:

        “To establish a charge of criminal breach of trust, 

the prosecution

        is  not  obliged  to  prove  the  precise   mode   of   conversion,

        misappropriation or misapplication by the accused of  the  property

        entrusted to him or over  which  he  has  dominion.  

The  principal

        ingredient of  the  offence  being  dishonest  misappropriation  or

        conversion which may not ordinarily be a matter  of  direct  proof,

        entrustment of property and failure, in breach of an obligation, to

        account for the property entrusted, if proved, may in the light  of

        other circumstances, justifiably lead to an inference of  dishonest

        misappropriation or conversion. 

Conviction  of  a  person  for  the

        offence of criminal breach of trust  may  not,  in  all  cases,  be

        founded merely on his failure to account for the property entrusted

        to him, or over which he has dominion, even when a duty to  account

        is imposed upon him but where he is  unable  to  account  which  is

        untrue, an inference of misappropriation with dishonest intent  may

        readily be made., the prosecution  is  not  obliged  to  prove  the

        precise mode of conversion, misappropriation or  misapplication  by

        the accused of the property entrusted to him or over which  he  has

        dominion. 

The principal ingredient of the offence  being  dishonest

        misappropriation or conversion which may not ordinarily be a matter

        of direct proof, entrustment of property and failure,  in breach of

        an obligation, to account for the property  entrusted,  if  proved,

        may in the light of other circumstances,  justifiably  lead  to  an

        inference of dishonest misappropriation or  conversion.  

Conviction

        of a person for the offence of criminal breach of trust may not, in

        all cases, be founded merely on his  failure  to  account  for  the

        property entrusted to him, or over which he has dominion, even when

        a duty to account is imposed upon him but where  he  is  unable  to

        account which is untrue,  an  inference  of  misappropriation  with

        dishonest intent may readily  be  made.,  the  prosecution  is  not

        obliged to prove the precise mode of  conversion,  misappropriation

        or misapplication by the accused of the property entrusted  to  him

        or over which he has dominion.  

The  principal  ingredient  of  the

        offence being dishonest misappropriation or  conversion  which  may

        not ordinarily be a matter of direct proof, entrustment of property

        and failure, in  breach  of  an  obligation,  to  account  for  the

        property  entrusted,  if  proved,  may  in  the  light   of   other

        circumstances,  justifiably  lead  to  an  inference  of  dishonest

        misappropriation or conversion. Conviction  of  a  person  for  the

        offence of criminal breach of trust  may  not,  in  all  cases,  be

        founded merely on his failure to account for the property entrusted

        to him, or over which he has dominion, even when a duty to  account

        is imposed upon him but where he is  unable  to  account  which  is

        untrue, an inference of misappropriation with dishonest intent  may

        readily be made.”

                     (emphasis laid by this Court)

 

 

  In the light of the above legal principle laid  down  by  this  Court,

the High Court was correct in holding that presumptions have  been  made  by

the trial court where it was not necessary in fact situation  at  hand.  The

decision reached by the trial court is not sustainable in law and is  liable

to be quashed. We concur with the decision of the High  Court  holding  that

it  was  correct  in  redirecting  the  matter  to  the  trial   court   for

adjudication on merit.

 

11.   For the reasons stated  supra,  the  appeal  is  dismissed.  The  stay

granted by this Court vide order dated 30th October, 2009 stands vacated.                       

 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2085 OF 2013
(Arising out of SLP(Crl.) No. 8101 of 2009)

 

Ghanshyam …. Appellant

Vs.

State of Rajasthan …. Respondent

 

 
J U D G M E N T

 

V.Gopala Gowda J.

 

Leave granted.
2. This appeal is filed by the appellant/accused questioning the
correctness of the judgment and final Order dated 04.02.2009 passed by the
High Court of Judicature at Rajasthan, Jaipur in S.B. Criminal Misc.
Petition No. 1067 of 2005 remanding the matter back to the trial court for
fresh decision in the light of the statements of the witnesses and also the
material and evidence available on record, urging various facts and legal
contentions in justification of his claim.

3. Necessary relevant facts are stated hereunder to appreciate the case
of the appellant/accused and also to find out whether he is entitled for
the relief as prayed in this appeal.

At the time of filing of this appeal, there were two respondents,
respondent no.1 Ram Dayal – the complainant and respondent no.2 – the State
of Rajasthan. Name of the complainant-Respondent no.1 has been deleted vide
this Court’s order dated 13th September, 2010 as the appellant could not
take steps of service upon him.
The complainant alleged that on 1.10.1994, he gave three gold chains
weighing 6.5 tola to the accused-appellant for making a new design chain
after melting the old chains. But according to the complainant, neither the
three old chains nor a new gold chain were returned to him. On 2.11.1994,
the complainant sent a telegram asking the accused appellant to return the
gold chains. He further sent a legal notice through his advocate to the
appellant on 6.5.1995 making allegation of taking the gold chains and not
returning the same. All the allegations were denied by the appellant. The
complainant then filed a complaint under Section 156(3) of the Criminal
Procedure Code (in short ‘CrPC’) for an offence under Section 406 of the
Indian Penal Code. Statements of witnesses were taken under Section 161,
CrPC by the Additional Chief Judicial Magistrate, Gangapur City. The
complainant further filed an application under Section 190 of CrPC before
the Additional Metropolitan Magistrate bringing to his notice the
commission of the alleged offence. Investigation was conducted by the SHO,
PS Gangapur City, District Sawai Madhopur and report was submitted by him
who concluded that the FIR was false and the case was without merit. The
complainant filed a protest petition against the said report. The
Additional Chief Judicial Magistrate, while considering the protest
petition, confirmed the negative report. The complainant challenged the
said Order of the Additional Chief Judicial Magistrate before the
Additional Sessions Judge by filing a protest petition. The Court of
Additional Sessions Judge set aside the Order of the Additional Chief
Judicial Magistrate and sent the matter back to the Additional Metropolitan
Magistrate to rehear the matter after considering the documents on record.
The Additional Metropolitan Magistrate considered the entire evidence on
record and came to the conclusion that no case was made out and the protest
petition filed by the complainant deserved to be dismissed.

4. The complainant being aggrieved by the Order of the Additional
Metropolitan Magistrate preferred a criminal revision before the Court of
learned Additional Sessions Judge which upheld the Order passed by the
Additional Metropolitan Magistrate. The complainant, therefore, preferred a
petition under Section 482 of CrPC challenging the Order of the learned
Additional Sessions Judge. The Hon’ble High Court exercised its inherent
jurisdiction to set aside the findings of the courts below and allowed the
petition of the complainant.

5. The High Court, vide its judgment dated 4.2.2009, held that the
statement recorded by the ACJM clearly reveals that the complainant handed
over three gold chains to the accused-appellant at the time of purchase of
cloth by the appellant from the complainant’s shop but the same were not
returned. Therefore, according to the High Court, a prima facie case of
criminal breach of trust was clearly made against the accused-appellant.
The trial Court erred in observing that no entry could have been made by
the complainant in his record book simultaneously when the clothes were
purchased by the accused appellant from the complainant’s shop. The High
Court further held that trial court erred in proceeding on any presumption
when the evidence available on record proved otherwise and there was
admission by the accused. In such cases, the burden was on the accused to
have rebutted the allegation against him. Therefore, the High Court
remanded the matter back to the trial court for fresh decision in the light
of the statements of the witnesses and evidence on record.

6. In the light of the facts and circumstances presented before us on
the basis of evidence on record, and also based on the contentions raised
by the learned senior counsel on behalf of both the parties, we are
inclined to frame the following issue to be answered by us:
1. Whether the High Court was justified in remanding the matter
back to trial court for consideration on merit against the
concurrent findings of the courts below?

7. It is to be noted here that the case made against the accused in this
case is that of criminal breach of trust. Criminal breach of trust is
provided under Section 405 of Indian Penal Code which reads as:
“405. Criminal Breach of Trust: Whoever, being in any manner
entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that
property in violation of any direction of law prescribing the mode
in which such trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of
such trust or willfully suffers any other person so to do, commits
“Criminal Breach of Trust”.
The punishment for Criminal breach of trust is provided under Sections 406-
409 of IPC.

8. It has been held in the case of Onkar Nath Mishra and Ors. v. State
(NCT of Delhi) and Anr.[1] that in the commission of the offence of
criminal breach of trust, two distinct parts are involved. The first
consists of the creation of an obligation in relation to the property over
which dominion or control is acquired by the accused. The second is a
misappropriation or dealing with the property dishonestly and contrary to
the terms of the obligation created.

9. Further, it has been held in the case of Jaikrishnadas Manohardas
Desai and Anr. v. State of Bombay[2] that:
“To establish a charge of criminal breach of trust, the prosecution
is not obliged to prove the precise mode of conversion,
misappropriation or misapplication by the accused of the property
entrusted to him or over which he has dominion. The principal
ingredient of the offence being dishonest misappropriation or
conversion which may not ordinarily be a matter of direct proof,
entrustment of property and failure, in breach of an obligation, to
account for the property entrusted, if proved, may in the light of
other circumstances, justifiably lead to an inference of dishonest
misappropriation or conversion. Conviction of a person for the
offence of criminal breach of trust may not, in all cases, be
founded merely on his failure to account for the property entrusted
to him, or over which he has dominion, even when a duty to account
is imposed upon him but where he is unable to account which is
untrue, an inference of misappropriation with dishonest intent may
readily be made., the prosecution is not obliged to prove the
precise mode of conversion, misappropriation or misapplication by
the accused of the property entrusted to him or over which he has
dominion. The principal ingredient of the offence being dishonest
misappropriation or conversion which may not ordinarily be a matter
of direct proof, entrustment of property and failure, in breach of
an obligation, to account for the property entrusted, if proved,
may in the light of other circumstances, justifiably lead to an
inference of dishonest misappropriation or conversion. Conviction
of a person for the offence of criminal breach of trust may not, in
all cases, be founded merely on his failure to account for the
property entrusted to him, or over which he has dominion, even when
a duty to account is imposed upon him but where he is unable to
account which is untrue, an inference of misappropriation with
dishonest intent may readily be made., the prosecution is not
obliged to prove the precise mode of conversion, misappropriation
or misapplication by the accused of the property entrusted to him
or over which he has dominion. The principal ingredient of the
offence being dishonest misappropriation or conversion which may
not ordinarily be a matter of direct proof, entrustment of property
and failure, in breach of an obligation, to account for the
property entrusted, if proved, may in the light of other
circumstances, justifiably lead to an inference of dishonest
misappropriation or conversion. Conviction of a person for the
offence of criminal breach of trust may not, in all cases, be
founded merely on his failure to account for the property entrusted
to him, or over which he has dominion, even when a duty to account
is imposed upon him but where he is unable to account which is
untrue, an inference of misappropriation with dishonest intent may
readily be made.”
(emphasis laid by this Court)
10. In the light of the above legal principle laid down by this Court,
the High Court was correct in holding that presumptions have been made by
the trial court where it was not necessary in fact situation at hand. The
decision reached by the trial court is not sustainable in law and is liable
to be quashed. We concur with the decision of the High Court holding that
it was correct in redirecting the matter to the trial court for
adjudication on merit.

11. For the reasons stated supra, the appeal is dismissed. The stay
granted by this Court vide order dated 30th October, 2009 stands vacated.

 

 

……………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]

 

 

 
……………………………………………………………………J. [V. GOPALA
GOWDA]

 
New Delhi,
December 12, 2013
———————–
[1] (2008) 2 SCC 561
[2] AIR 1960 SC 889

———————–
12

 

 

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