STATE OF HIMACHAL PRADESHversusKARANVIR

A                     STATE OF HIMACHAL PRADESH
                                  v.
                               KARA NV IR

                                 MAY 12, 2006
                                                                                   ..
B                  [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

         Penal Code, I 860 :

          Ss.405, 409-Postmaster was handed over an amount for purchase of
    NSCs-He deposited such amount in post office only on initiation of
C   enquiry-Conviction u!s.409--Correctness of--Held: Correct as the amount
    entrusted to the postmaster was public money and wus required to be utilised
    for the purpose for which it was handed over-Further, actual manner of
    misappropriation is not required to be proved by prosecution.

         Code of Criminal Procedure, 1973 :
D
         S.313-Examination under-Scope and extent of

         Prosecution case was that PW-3 had deposited a sum of Rs. 8000
    with respondent who was a Post Master, for purchase of National
    Saving Certificates (NSC). The certificates were not handed over to
E   PW-3 even after a month. On making enquiries, he found that NSCs
    had not been issued. He thereafter made complaint with the postal
    authorities and authorities entrusted the matter to PW-4 for conducting
    enquiry.

F        Thereafter, respondent deposited a sum of Rs. 4200 in the Post
    Office. After few days, he deposited Rs. 4000. Criminal proceedings
    were initiated against him. Magistrate convicted respondent under
    Section 409 IPC and also imposed a fine of Rs. 1000 which was upheld
    by Sessions Judge. On revision, High Court held that the prosecution
    had not proved misappropriation on the part of the respondent, hence
G   conviction was not sustainable. State filed the present appeal.

         Allowing the appeal, the Court

          HELD: 1.1. The respondent was a Post Master. He was holding an
    office of public trust. The complainant entrusted the amount to the
H
                                        666
                          STATE v. KARANVIR                             667

respondent for the purpose of purchasing National Savings Certificates.         A
The amount was received by the respondent on behalf of the postal
authorities, hence it became public money. It was required to be utilised
for the purpose for which the same was handed over to the respondent.
                                                              (670-F-G)

      1.2. The High Court opined that the entrustment was proved.               B
When an enquiry came to be made by PW-4, the respondent deposited
the amount in two instalments along with a sum of Rs. 200 by way of
interest. The respondent being a public officer had the requisite knowledge
that the amount carried interest. Thereafter, the postal savings certificates
came to be issued. The respondent thus thought himself liable to pay
the said amount with interest, so as to reimburse to the complainant the
                                                                                c
amount to which he was entitled by way of interest for depositing the
said amount. The High Court, completely misdirected itself in opining
that it was obligatory on the part of PW-3 or PW-4 to state in their
complaint that the accused committed criminal misappropriation with
 intention to utilise the amount for his personal use. The very fact that       D
the respondent retained with him the enfrusted amount is not disputed.
If he did not utilise the amount for the purpose for which the same had
been deposited, an offence must be held to have been committed.
                                                          [670-H, 671-A-D)

     2. It is well settled that the actual manner of misappropriation is        E
not required to be proved hy the prosecution. Once entrustment is
proved, it was 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. (671-F)
                                                                                F
     3. The Trial Judge as also the Sessions Judge arrived at concurrent
findings of fact. The High Court, misdirected itself in passing the
impugned judgment while exercising its revision jurisdiction. (671-GJ

     N. Bhargavan Pillai & Anr. v. State of Kera/a, (2004] 13 sec 217,          G
relied on.

     4.1. The contention on behalf of respondent that no question was
put to him while he was being examined under Section 313 of the Code
of Criminal Procedure, with a view to give him an opportunity to
explain whether the amount was given to him for his personal use or             H
      668                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.


 A    he converted the money for his personal use, cannot be accepted. While
      examining the accused under Section 313 Cr.P.C., the Trial Court is
      merely required to ask such question which has been brought on record
      as against the respondent. [671-H, 672-A-BI

           4.2. The responcient in fact had admitted the entire prosecution
 B    case for all intent and purport. The entire evidence which was adduced
      on behalf of the prosecution was made known to the accused. In his
      statement under Section 313 Cr.P.C., he accepted that he had received
      a sum of Rs. 8,000 from the complainant and he had deposited the said
      amount together with interest, in two instalments. He has merely
      reiterated his defence, as noticed that the complainant had not paid to
 c    him the entire sum of Rs. 8,000, which has not been accepted by the
      Trial Court. The High Court committed a manifest error in arriving at
      a finding that there has been infraction of the mandatory provisions of
      Section 313 Cr.P.C. (672-B-D]

            5. The respondent is aged about 60 years. The offence is said to
• D   have been committed 15 years back. He was arrested by the police. He
      might have been in custody for some time. Having regard to the peculiar
      facts and circumstances of this case and keeping in view the fact that
      the respondent had deposited the entire amount before the First
      Information Report was lodged, the interest of justice would be subserved
 E    if any substantial punishment is not awarded. Accordingly, fine of
      Rs.4,000/- is imposed upon the respondent, which will be apart from the
      amount of fine of Rs. 1,000 imposed by the Trial Judge. [672-E-G]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
      1040 of 1998.
 F
          From the Judgment and Order dated 24.9.1997 of the High Court of
      Himachal Pradesh at Shimla in Crl. Revision No. 149 of 1994.

            J.S. Attri for the Appellant.

 G          Mrs. K. Sarada Devi for the Respondent.

            The Judgment of the Court was delivered by

           S.B. SINHA, J. : The State of Himachal Pradesh is in appeal before
      us aggrieved by the judgment and order dated 24.9.1997 passed in Criminal
 H    Revision No.149/1994, whereby and whereunder the revision application,
                    STATE v. KARANVIR [SINHA, J.)                        669

filed by the respondent herein, against the judgment and order dated             A
1.12.1994 passed by the Sessions Judge affirming a judgment of conviction
and sentence passed by the Chief Judicial Magistrate, Sirmaur District at
Nahan, convicting the respondent for commission of an offence punishable
under Section 409 of the !PC and sentencing him to undergo simple
imprisonment for a period of six months and to pay a fine of Rs. 1,000, has
been allowed.
                                                                                 B

      The respondent was a Post Master at Chhapang, within the Police
Station Pachhad in the District of Sirmaur. One Rajbir Singh (PW-3), uncle
of the respondent-accused, was at the relevant time working in the Government
High School, Ramadhon. He had deposited a sum of Rs. 8,000 with the              C
respondent-accused for purchase of National Savings Certificates. Necessary
forms were also filled up by said Rajbir Singh and a receipt acknowledging
the receipt of the said amount was issued to him. Although more than a
month had passed but the said Rajbir Singh was not handed over any
National Savings Certificate by the respondent. He, therefore, made enquiries
with the postal authorities both at Rajgarh and at Nahan, whereupon he came      D
to learn that no such National Saving Certificates had been issued. He
thereafter rriade a complaint in that behalf, with the postal authorities. The
postal authorities entrusted the matter to one Shri Brijpal Thakur (PW-4) for
conducting an enquiry. The respondent having come to learn of initiation of
the said enquiry, deposited a sum of Rs.4200/- in the Post Office on             E
30.11.1989. A further deposit of Rs.4,000/- was made by him on 11.12.1989.
It is not in dispute that the excess amount of Rs.200/- was deposited by the
respondent on 30.11.1989 by way of interest.

      A First Information Report was lodged on 27.6.1990 at Police Station,
Pachhad. During the investigation, specimen and admitted writings of the         F
respondent were taken and sent to the handwriting expert for comparing with
his writings and signatures on the receipt. The expert opined that the
questioned writing and the signatures on the deposited documents tallied
with the admitted signatures and writings of the respondent. The learned
Chief Judicial Magistrate, as noticed hereinbefore, found the respondent
guilty of commission of an offence punishable under Section 409 IPC and          G
sentenced him to undergo simple imprisonment for a period of six months.
A fine of Rs. 1,000/- was also imposed upon him.

     The appeal preferred by the respondent before the learned Sessions
Judge, Sinnaur, also came to be dismissed. In the revision application filed     H
    670                  SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A   by the respondent, the High Court held that as the prosecution had not been
    able to prove 'misappropriation' on the part of the respondent, the judgment
    of conviction and sentence was unsustainable.

         The short question which arises for consideration in this appeal is as
    to whether having regard to the facts and circumstances of this case, the
B   prosecution has been able to prove that the respondent misappropriated the
    said amount.

           Section 405 of the !PC reads as under:

            ''405. Criminal breach of trust.- Whoever, being in any manner
c           entrusted with property, or with any dominion over 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 touching the discharge of such trust, or wilfully suffers
D           any other person so to do, commits 'criminal breach of trust'


          Illustration (e) appended to the said provision in this connection be
    noticed.

E           "A, a revenue-officer, is entrusted with public money and is either
            directed by law, or bound by a contract, express or implied, with
            the Government, to pay into a certain treasury all the public money
            which he holds. A dishonestly appropriates the money. A has
            committed criminal breach of trust."

F         The respondent was a Post Master. He was holding an office of public
    trust. The complainant who was a teacher entrusted the amount to the
    respondent for the purpose of purchasing National Savings Certificates. As
    soon as the amount was received by the respondent on behalf of the postal
    authorities, it became public money. It was required to be utilised for the
G   purpose for which the same was handed over to the respondent.

           The High Court opined that the entrustment was proved. The fact that
    till 29.I l.1989, the amount of Rs. 8,000 deposited by the complainant with
    the respondent, had not been utilised for the purpose for which the same had
    been handed over to him also is admitted. \Vhen an enquiry came to be made
H   by Shri Brijpal Thakur (PW-4 ), the respondent deposited the said amount
                    STATEv. KARANVIR [SINHA, J.]                          671

in two instalments along with a sum of Rs. 200 by way of interest. The            A
respondent, therefore, being a public officer had the requisite knowledge that
the amount carried interest. On 16.7.1989, the postal savings certificates
came to be issued. The respondent therefore thought himself liable to pay
the said amount with interest, so as to reimburse to the complainant the
amount to which was entitled by way of interest for depositing the said
amount. Even on 30.11.1989, he did not deposit the entire amount. The             B
entire amount came to be deposited by him on 11.12.1989. We, therefore,
fail to understand as to on what basis the learned Judge opined that the
second ingredient of Section 405 of the IPC, i.e. misappropriation of the
amount by the respondent-accused had not been proved. The High Court,
 in our considered view, completely misdirected itself in opining that it was     c
 obligatory on the part of Rajbir Singh (PW-3) or Brijpal Thakur (PW-4) to
 state in their complaint that the accused committed criminal misappropriation
 with intention to utilise the amount for his personal use. The very fact that
 the respondent retained with him the entrusted amount is not disputed. If he
 did not utilise the amount for the purpose for which the same had been
 deposited, an offence must be held to have been committed.                       D
      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 utilized the amount. In
our opinion, the same was not necessary. In view of the admitted fact, we
                                                                                  E
are of the opinion 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.

     The actual manner of misappropriation, it is well settled, is not required
to be proved by the prosecution. Once entrustment is proved, it was for the       F
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 co produce any
material for this purpose, the prosecution should not suffer therefor.

      The learned Trial Judge as also the learned Sessions Judge arrived at
concurrent findings of fact. The High Court, in our opinion, misdirected itself   G
in passing the impugned judgment while exercising its revision jurisdiction.
(See N. Bhargavan Pillai & Anr. v. State of Kera/a, (2004] 13 SCC 217].

     A contention has further been raised by Mrs. Sarada Devi, that no
question was put to the respondent while he was being examined under              H
    672                   SUPREME COURT REPORTS (2006] SUPP. 2 S.C.R.

A   Section 313 of the Code of Criminal Procedure, with a view to give him an
    opportunity to explain whether the amount was given to him for his personal
    use or he converted the money for his personal use. We are afraid that such
    contention cannot be accepted. While examining the accused under Section
    313 ofCr.P.C., the Trial Court is merely required to ask such question which
    has been brought on record as against the respondent
B
           The respondent in fact had admitted the entire prosecution case for all
     intent and purport. The entire evidence which was adduced on behalf of the
    prosecution was made known to the accused. In his statement under Section
    313 Cr.P.C., he accepted that he had received a sum of Rs. 8,000 from the
    complainant and he had deposited the said amount together with interest, in
c   rwo installments. He has merely reiterated his defence, as noticed hereinbefore,
    that the complainant had not paid to him the entire sum of Rs. 8,000, which
    has not been accepted by the Trial Court. We are, therefore, of the opinion
    that the High Court committed a manifest error in arriving at a finding that
    there has been infraction of the mandatory provisions of Section 313 Cr.P.C.
D
         For the aforesaid reasons, the impugned judgment cannot be sustained
    and it is set aside accordingly.

         The question, however, would now arise as to whether in the facts and
    circumstances of this case, the respondent should be sent back to jail. The
E   respondent is aged about 60 years. The offence is said to have been
    committed 15 years back. He was arrested by the police. He might have been
    in custody for some time.

          Having regard to the peculiar facts and circumstances of this case and
    keeping in view the fact that the respondent had deposited the entire amount
F
    before the First Information Report was lodged, we are of the opinion that
    the interest of justice would be subserved if any substantial punishment is
    not awarded. Accordingly, we impose a fine of Rs. 4,000 upon the
    respondent, which will be apart from the amount of fine of Rs. 1,000 imposed
    by the learned Trial Judge. It is directed that in default of the payment of
G   the said amount, the respondent shall undergo simple imprisonment for three
    months. The appeal is thus allowed.

    D.G.                                                          Appeal allowed.