Ghanshyam Vs. State of Rajasthan
EmailAppeal: Criminal Appeal No. 2085 of 2013
[Arising out of SLP (Crl.) No. 8101 of 2009]
[From the Judgment and Order dated 04.02.2009 of the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal Misc. Petition No. 1067 of 2005]
[Arising out of SLP (Crl.) No. 8101 of 2009]
[From the Judgment and Order dated 04.02.2009 of the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal Misc. Petition No. 1067 of 2005]
Petitioner: Ghanshyam
Respondent: State of Rajasthan
Apeal: Criminal Appeal No. 2085 of 2013
[Arising out of SLP (Crl.) No. 8101 of 2009]
[From the Judgment and Order dated 04.02.2009 of the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal Misc. Petition No. 1067 of 2005]
[Arising out of SLP (Crl.) No. 8101 of 2009]
[From the Judgment and Order dated 04.02.2009 of the High Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal Misc. Petition No. 1067 of 2005]
Judges: Sudhansu Jyoti Mukhopadhaya & V. Gopala Gowda, JJ.
Date of Judgment: Dec 12, 2013
Appearances:
Appearances
Mr. Abhishek Gupta, Mr. Sarad Kumar Singhania, Advocates, for the Appellant.
Mr. Amit Bhandari, Mr. Milind Kumar, Advocates, for the Respondent.
Mr. Abhishek Gupta, Mr. Sarad Kumar Singhania, Advocates, for the Appellant.
Mr. Amit Bhandari, Mr. Milind Kumar, Advocates, for the Respondent.
Head Note:
CRIMINAL LAWS
Penal Code, 1860
Sections 405 & 406 – Three gold chains entrusted to appellant at the time of purchasing clothes from complainant’s shop for making new chain – Complaint filed as also an application made under Section 190 CrPc before Addl. Magistrate – Investigation report by SHO stated FIR to be false – Protest petition there-against, dismissed by Magistrate – However, order set aside by Addl. Sessions Judge and matter remanded – Addl. Metropolitan Magistrate also confirmed the case to be false – Said order upheld in revision, by Sessions Judge – Petition under Section 482 CrPc allowed by High Court – Justification. Held, High Court rightly held Trial Court’s presumption that no entry could be made by complainant in his record simultaneously when the clothes were purchased by appellant, to be false in view of admission by appellant. (Para 10)
Penal Code, 1860
Sections 405 & 406 – Three gold chains entrusted to appellant at the time of purchasing clothes from complainant’s shop for making new chain – Complaint filed as also an application made under Section 190 CrPc before Addl. Magistrate – Investigation report by SHO stated FIR to be false – Protest petition there-against, dismissed by Magistrate – However, order set aside by Addl. Sessions Judge and matter remanded – Addl. Metropolitan Magistrate also confirmed the case to be false – Said order upheld in revision, by Sessions Judge – Petition under Section 482 CrPc allowed by High Court – Justification. Held, High Court rightly held Trial Court’s presumption that no entry could be made by complainant in his record simultaneously when the clothes were purchased by appellant, to be false in view of admission by appellant. (Para 10)
Sections 405 , 406 – Criminal breach of trust. Governing principles and ingredients of, stated. Onkar Nath Mishra’s and Jaikrishnadas’s cases referred. (Paras 7 -9)
Cases Reffered:
1. Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. [JT 2008 (1) SC 20] (Para 8)
2. Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay [AIR 1960 SC 889] (Para 9)
JUDGEMENT:
V. Gopala Gowda, J.
1. 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.
3.1. 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 Courts order dated 13th September, 2010 as the appellant could not take steps of service upon him.
3.2. 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 Honble 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 complainants 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 complainants 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.
7.1. 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. [JT 2008 (1) SC 20 : 2008 (2) SCC 561] 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 [AIR 1960 SC 889] 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 misappropria-tion 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.
1. 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.
3.1. 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 Courts order dated 13th September, 2010 as the appellant could not take steps of service upon him.
3.2. 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 Honble 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 complainants 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 complainants 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.
7.1. 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. [JT 2008 (1) SC 20 : 2008 (2) SCC 561] 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 [AIR 1960 SC 889] 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 misappropria-tion 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.
