SADHUPATI NAGESWARA RAOversusSTATE OF ANDHRA PRADESH

                   (2012] 6 S.C.R. 1143


             SADHUPATI NAGESWARA RAO                              A
                              v.
              STATE OF ANDHRA PRADESH
            (Criminal Appeal No. 1159 of·2012)
                     AUGUST 3, 2012
                                                                  B
      [P. SATHASIVA_M AND RANJAN GOGOi, JJ.]

    PENAL CODE 1860:

    s. 409- Fair Price Shop dealer- Convicted and c
sontenced to six months RI for misappropriation of rice
entrusted to him under Food for Work Scheme (FFWS)-
He/d: The eviden<?e proves that there was entrustment of
oroperty of Government (rice under FFWS) to the accused
agerit and the same was disbursed without proper coupons - 0
Accused had dishonest intention not to distribute the rice
properly to the beneficiaries - He was rightly found guilty and.
convicted of the offence punishable u/s 409 - Evidence of
hostile witness.

    SENTENCE/SENTENCING.                                          E
     Conviction and sentence of six montl7s RI and a fine of
Rs.10001- awarded to Fair Price Shop dealer u/s 409 /PC -
Held: Courts cannot take lenient view in awarding sentence
on the ground of sympathy or delay, particularly, if it relates   F
to distribution of essential commodities under any Scheme
of the Government intended to benefit the public at large -
There is no ground for reduction of sentence.

    The appellant-accused, a Fair Price Shop dealer, was
entrusted with the task of disbursement of rice free of           G
cost under "Food for Work Scheme" (FFWS) to the
workers on production of coupons. On a complaint
regarding irregularities in distribution of essential

                            1143                                  H
    1144    SUPREME COURT REPORTS              (2012] 6 S.C.R.

A commodities, an inspection of the Shops of the appellant
  was carried out and it was found that he disposed of
  67 .65 quintals of rice intended for FFWS without any
  coupons. An FIR was registered against him for offences
  punishable u/ss 409 and 420 IPC. The trial court
B convicted the appellant-accused u/s 409 IPC and
  sentenced him to six months' RI and to pay a fine of Rs.
  1000/-. His appeal and revision having been dismissed,
  he filed the appeal.

        Dismissing the appeal, the Court
c
       HELD: 1.1. On 25.07.2002, PWs 2 and 3, along with
  PW-4 and some others, carried out an inspection of the
  Fair Price Shops of the appellant-accused. PW-3 stated
  that the appellant disposed of 67.65 quintals of rice worth
D around Rs.84,562/-in black market intended for FFWS. On
  the same day, i.e., on ·25.07.2002, PW-2 recorded the
  statement of the appellant under Ext. P-7 wherein
  nowhere he denied the contents of the said statement. It
  is also clear from the prosecution evidence that the
E appellant was not in a position to show the correct
  details, particularly, the handing over of rice to the
  beneficiaries by securing coupons/ vouchers from them.
  [Para 9] [1150-G-H; 1151-A-B]

       1.2. In addition to the official witnesses, viz., PWs 1-
F 4, the prosecution also examined PW-5, who worked as
  an Attender in Cooperative Society and was the
  beneficiary. He deposed that he purchased essential
  commodities from the Fair Price Shop of the appellant
  even without having a ration card. He was the person
G who gave a report to the Mandal Revenue Officer (PW-1)
  under Ext. P1. He also admitted that he had no ration card
  at all. It is true that at a later point of time though PW-5
  turned hostile, in his cross examination, he admitted that
  in Ext. P1 he mentioned that the appellant was not
H
    SADHUPATI NAGESWARA RAO v. STATE OF                1145
              ANDHRA PRADESH

distributing essential commodities properly to the             A
beneficiaries. [para 8) [1150-C-E]

    1.3. The evidence proves that there was entrustment
of property of the government to the appellant. He was
charged with misappropriation of 67.65 quintals of rice.       B
The materials placed by the prosecution show that the
appellant had dishonest intention not to distribute the rice
properly to the beneficiaries and an offence of criminal
breach of trust could be made out. All these aspects have
been rightly considered by the trial court and it has found    C
the appellant guilty of the offence punishable u/s 409 IPC.
The appellate and revisional courts, on appreciation of
the materials placed by the prosecution and defence,
rightly confirmed the same. [para 9-10) [1151-G-H; 1152-
A-B]
                                                               D
     2. Section 409 enables the court to award
imprisonment for life or imprisonment up to ten years
alongwith fine. Considering the fact that the appellant
was awarded imprisonment for 6 months alongwith a fine
of Rs.1,000/- only, the same is not excessive. On the other    E
hand, the courts cannot take lenient view in awarding
sentence on the ground of sympathy or delay,
particularly, if it relates to distribution of essential
commodities under any Scheme of the Government
intended to benefit the public at large. There is no ground    F
for reduction of sentence. [para 11) [1152-C-F]

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1159:of 2012.

    From the Judgment & Order dated 8.4.2011 of the High       G
Court of Judicature, Andhra Pradesh at Hyderbad in Criminal
Revision No. 295 of 2005.

    V. Giri, Shree Pal Singh, K. Sita Rama Rao, Rahul Singh,
Sadiq for the Appellant.                                       H
    1146     SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A       Mayur Shah, D. Mahesh Babu, Suchitra H., Amit Nain,
    Bala Shivulu for the Respondent.

        The Judgment of the Court was delivered by

        P. SATHASIVAM, J. 1. Leave granted.
B
         2. This appeal is filed against the impugned order dated
    08.04.2011 passed by the High Court of Judicature, Andhra
    Pradesh at Hyderabad in Criminal Revision Case No. 295 of
    2005 whereby the High Court dismissed the Revision filed by
c   the appellant herein and confirmed the conviction and sentence
    imposed upon him under Section 409 of the Indian Penal
    Code, 1860 (hereinafter referred to as "IPC") by the trial Court.

        3. Brief facts:

D      (a) The appellant was the Fair Price Shop dealer of
  Stuartpuram village and also in-charge dealer of Fair Price Shop
  at Chinabethapudi. He was entrusted with the task of
  distribution ot rice at free of cost under "Food For Work
  Scheme'~ (FFWS) to the workers on production of coupons, to
E maintain proper accounts and to handover the said coupons
  to the Mandal Revenue Office to that effect.

       (b) During the 17th Janma Bhoomi programme, on
  03.06.2002, one Nadendla Jakraiah filed a complaint against
F the appellant to the Mandal Revenue Officer (MRO), Bapatla
  regarding the irregularities committed in the distribution of
  essential commodities to the public and requested to take·
  necessary action in the matter. The MRO, Bapatla forwarded
  the said complaint to the Deputy Tahsildar of Civil Supplies,
  Bapatla to inspect the fair price shop of the appellant and to
G take necessary action.

      (c) On 25.07.2002, the Deputy Tahsildar along with other
  Revenue officials visited the Fair Price Shop of the appellant
  at Chinabethapudi and also at Stuartpuram Village. On
H inspection of the Fair Price Shop a~ Chinabethapudi, ·the
    SADHUPATI NAGESWARA RAO v. •STATE OF                   1147
     ANDHRA PRADESH [P. SATHASIVAM, J.]

Revenue officials found the goods/stocks lying therein tallied      A
with the records/Stock Register. In the similar manner, when the
fair price shop at Stuartpuram was insp~cted, the Revenue
offjcials could not find the records/Stock Registers, pursuant to
the same, they made inventory of the goods lying in the shop
and seized the same. According to the appellant, in thE! evening,   B
he went to the Mandal Revenue Office along with the records/
registers and coupons but the revenue officials refused to look
into the same and informed him that action had been initiated
against him. Thereafter, the appellant sent a FAX/Telegram to
the Joint Collector, Mandal Revenue Office.                         c
     (d) On 27.07.2002, the Revenue Officials (Civil Supplies)
visited his Fair Price Shop at Chinabethapudi and took
inventory of the stock in the shop and asked the appellant to
sign the papers which were already prepared by them.
                                                                    D
    (e) On 31.07.2002, the MRO lodged a complaint with the
S.H.O., P.S. Vedullapalli which was registered as FIR in Crime
No. 22 of 2002 under Sections 409 and 420 of IPC. After
investigation, the police arrested the appellant on 30.09.2002.
                                                                    E
     (f) After considering the evidence, the II Addi. Jr. Civil
Judge-cum-Judicial First Class Magistrate, Bapatla, by
judgment dated 22.05.2004 in C.C. No. 7/2003, found the
appellant guilty for the offence punishable under Section 409
!PC and not guilty under Section 420 !PC and, accordingly,
convicted and sentenced him to suffer simple imprisonment for       F
6 months and also to pay a fine of Rs.1,000/-, in default, to
further undergo simple imprisonment for 1 month.

     (g) Aggrieved by the said judgment, the appellant preferred
an appeal being Criminal Appeal No. 210 of 2004 before the          G
1st Addi. Sessions Judge, Guntur. The Sessions Judge, by order
dated 08.02.2005, dismissed his appeal and confirmed the
order passed by the llnd Addi. Jr. Civil Judge-cum-Judicial First
Class Magistrate dated 22.05.2004.
                                                                    H



                                                                        ir
    1148     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A       (h) Against the said order, the appellant filed Criminal
    Revision No. 295 of 2005 before the High Court of Andhra
    Pradesh. By impugned order dated 08.04.2011, the High Court
    dismissed the Revision filed by the appellant and confirmed the
    judgment passed by the Addi. Sessions Judge, Guntur.
B
        (i) Challenging the said order of the High Court, the
    appellant has preferred this appeal by way of special leave
    before this Court.

      4. Heard Mr. V. Giri, learned senior counsel for the
C appellant and Mr. Mayur Shah, learned counsel for the
  respondent-State.

       5. Mr. V. Giri, learned senior counsel for the appellant, after
  taking us through the necessary ingredients of Section 409 of
0 IPC and the evidence led in, submitted that there was no
  acceptable material to establish that the appellant dishonestly
  misappropriated the foodgrain which was meant for workers
  under FFWS. He also pointed out that the prosecution failed
  to prove the fraudulent dishonest intention on the part of the
E appellant. He finally submitted that inasmuch as the prosecution
  witnesses being Nos. 2, 3, 4 and 6 are official witnesses and
  not independent witnesses, their evidence without corroboration
  with the independent witness, casts a reasonable doubt on the
  veracity of the prosecution allegation.

F       6. On the other hand, Mr. Mayur Shah, learned counsel for
    the State, after taking us through the entire materials placed
    by the prosecution and reasonings of the Courts below,
    pleaded for confirmation of the conviction and sentence
    imposed on the appellant.
G
         7. In order to appreciate the above contentions, it is useful
    to refer the definition and punishment of criminal breach of trust
    and related provision provided under Sections 405, 406 and
    409 IPC which read as under:-
H        "405. Criminal breach of trust.- Whoever, being in any
    SADHUPATI NAGESWARA RAO v. STATE OF                 1149
     ANDHRA PRADESH [P. SATHASIVAM, J.]

    manner entrusted with property, or with any dominion over A
    property, dishonestly misappropriates or converts to his
    own use that property, or· dishonestly uses or disposes of
    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 B
    touching the discharge of such trust, or willfully suffers any
    other person so to do, commits "criminal breach of trust"_

    406. Punishment for criminal breach of trust. - Whoever
    commits criminal breach of trust shall be punished with C
    imprisonment of either description for a term which may
    extend to three years, or with fine, or with both.

    409. Criminal breach of trust by public servant, or by
    banker, merchant or agent.- Whoever, being in any
    manner entrusted with property, or with any dominion over D
    property in his capacity of a public servant or in the way
    of his business as a banker, merchant, factor, broker,
    attorney or agent, commits criminal breach of trust in
    respect of that property, shall be punished with
    imprisonment for life, or with imprisonment of either E
    description for a term which may extend to ten years, and
    shall also be liable to fine."

     In order to· prove the offence of criminal breach of trust
which attracts the provision of Section 409 IPC, the prosecution F
must prove that one who is, in any manner, entrusted with the
property, in this case as a dealer of fair price shop, dishonestly
misappropriates the property, commits criminal breach of trust
in respect of that property. In other words, in order to sustain
conviction under Section 409 IPC, two ingredients are to be
proved: namely, i) the accus~d. a public servant or a banker G
or agent was entrusted with the property of which he is duty
bound to account for; and ii) the accused has committed
criminal breach of trust. What amounts to criminal breach of trust
is provided under Section 405 IPC. The basic requirement to
bring home the accusations under Section 405 are the H
    1150      SUPREME COURT REPORTS                    [2012] 6 S.C.R.


A requirements to prove conjointly i) entrustment and ii) whether
  the accused was actuated by dishonest intention or not,
  misappropriated it or converted it to his own use to the
  detriment of the persons who entrusted it.

          8. In the light of the above broad principles, let us examine
8
    the materials relied on by the prosecution. To prove the above
    offence, the prosecution examined PWs 1-6, viz., Mandal
    Revenue Officer (PW-1 ), Deputy Tahsildar (Civil Supplies)
    (PW-2), Revenue Inspector (PW-3), Village Secretary (PW-4).
    In order to prove the offence of criminal breach of trust, the
C   prosecution must prove that the accused was, in any manner,
    entrusted with the property of the Government. In addition to the
    official witnesses, viz., PWs 1-4, the prosecution also examined
    Nadendla Jakraiah (PW-5), who worked as an Attender in
    Cooperative Society, Bethapudi and the beneficiary along with
D   the appellant. In his examination, he deposed that he purchased
    the essential commodities from the Fair Price Shop of the
    appellant even without having a ration card. He was the person
    who gave a report to the MRO, PW-1 under Exh. P1. He also
    admitted that he had no ration card at all. It is true that at a later
E   point of time though PW-5 turned hostile, in his cross
    examination, he admitted that in Exh. P1 he mentioned that the
    appellant accused was not distributing essential commodities
    properly to the beneficiaries. The Magistrate has rightly
    observed that how is it possible that PW-5 was receiving
F   essential commodities from the shop of the accused without
    having a ration card.

       9. Though PWs 2 to 4 are Government Officials, PW-5 is
  the beneficiary of the fair price shop of the accused and PW-
  6 is the 1.0. All of them stated that the accused was running
G Fair Price Shop at Stuartpuram and also in-charge of Fair Price
  Shop at Chinabethapudi. As per the orders of PW-1, on
  25.07.2002, PWs 2 and 3, along with PW-4 and some others,
  carried out an inspection over the Fair Price Shops of the
  appellant-accused at Chinabethapudi and Stuartpuram and
H submitted a Report. PW-3 stated that the appellant-accused
     SADHUPATI NAGESWARA RAO v. STATE OF                      1151
      ANDHRA PRADESH [P. SATHASIVAM, J.]

  disposed of 67.65 quintals of rice in black market intended for      A
  FFWS. According to these witnesses, the value of foodgrairi
  was around Rs. 84,562/-. On the same day, i.e., on 25.07.2002,
  PW-2 recorded the statement of the appellant-accused under
  Exh. P-7 wherein nowhere he denied the contents of the said
  statement. It is also clear from the prosecution evidence that       B
  the appellant was not in a position to show the correct details,
  particularly, the handing over of rice to the beneficiaries by
  securing coupons/vouchers from them. Though it was stated by
  the appellant that all those coupons/vouchers were with his
  father, it was demonstrated that his father failed to turn up even   c
  after twelve noon on 25.07.2002. There is no dispute that the
  appellant was entrusted with 13.8 quintals of rice, 387 litres of
  kerosene in respect of Chinabethapudi Fair Price Shop in the
  month of June, 2002 and he was also entrusted with 6.88
  quintals of rice and 213 litres of kerosene in respect of
                                                                       0
  Stuartpuram Fair Price Shop. It is also clear from the evidence
  led in by the prosecution that the appellant had failed to submit
  the coupons for the deficiency found by the inspecting officers.
  Though the appellant has pleaded that in the same evening, he
  went and met the officers concerned along with the coupons, it
  has come on record that those coupons does not belong to the         E
  persons alleged to the above mentioned Fair Price Shop. The
  materials placed by the prosecution show that the appellant-
  accused had dishonest intention not to distribute the rice
   properly to the beneficiaries and an offence of criminal breach
  of trust could be made out. As observed earlier, the coupons         F
  filed by the appellant-accused belong to Ramnagar and not to
  Stuartpuram village. The fact remains that on the date of
· inspection, the rice was disbursed without proper coupons.

      10. The trial Court, after considering all the materials, came   G
 to the conclusion that the evidence of PWs 1 to 6 is reliable
 and trustworthy in relation to the offence in proving entrustment
 of property of the Government to the accused. In the case on
 hand, the appellant, an agent entrusted with the distribution of
 rice under the "Food for Work Scheme" (FFWS) to the workers           H
    1152     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A on production of coupons, was charged with misappropriation
  of 67.65 quintals of rice. The evidence also proves that there
  was entrustment of property to the accused. All these aspects
  have been rightly considered by the trial Court and found the
  appellant guilty of the offence punishable under Section 409
B IPC. The appellate and revisional court, on appreciation of the
  m~terials placed by the prosecution and defence, confirmed the
  ·same. We are in entire agreement with the said conclusion.

        11. Mr. Giri, learned senior counsel for the appellant
  submitted that inasmuch as the alleged occurrence took place
C in 2002, some leniency may be shown on the sentence
  imposed. We are unable to accept the said contention. Section
  409 enables the Court to-award imprisonment for life or
  imprisonment up to ten years alongwith fine. Considering the
  fact that the appellant was awarded imprisonment for 6 months
D alongwith a fine of Rs. 1,000/- only, we feel that the same is
  not excessive. On the other hand, we are of the view that
  persons dealing with the property of the Government and
  entrusted with the task of distribution under FFWS, it is but
  proper on their part to maintain true accounts, handover
E coupons to the Mandal Revenue Office and to execute the
  same fully and without any lapse. Such recourse has not been
  followed by the appellant. The courts cannot take lenient view
  in awarding sentence on the ground of sympathy or delay,
  particularly, if it relates to distribution of essential commodities
F under any Scheme of the Government intended to benefit the
  public at large. Accordingly, while rejecting the request of the
  learned senior counsel for the appellant, we hold that there is
  no ground for reduction of sentence.

       12. Under these circumstances, we find no merit in the
G appeal. Consequently, the same is dismissed. In view of the
  dismissal of the appeal, the order granting exemption from .
  surrender is revoked and the appellant has to surrender within
  four weeks and serve out the remaining period of sentence.

H R.P.                                           Appeal dismissed.