Case Note & Summary
The petitioner, Hilal Dhudku Patil, was the Secretary of Vividh Karyakari Seva Sahkari Society Limited, Sawai Mukti, and was entrusted with maintaining accounts and transactions. The first informant, Pandharinath (PW1), the second auditor of the society, conducted an audit for the period from 1.1.1982 to 30.6.1983 and noticed that on various dates, receipts were issued but not shown in the Kird book, and deposits were not made in the bank. The total alleged misappropriation was Rs. 2,164.19. Pandharinath called for an explanation from the petitioner, who failed to respond, leading to a report on 14.12.1985 and registration of CR No. 65 of 1985 under Section 408 IPC. After trial, the Judicial Magistrate, First Class, Sindkheda convicted the petitioner on 10.1.2005. The petitioner appealed to the Additional Sessions Judge, Dhule, who dismissed the appeal on 30.11.2009. The petitioner then filed a Criminal Revision Application before the Bombay High Court. The High Court examined the evidence, noting that PW1 (the auditor) admitted that the audit report was not exhibited and that he did not produce the original Kird book or receipts. PW2 (the investigating officer) stated that the audit report was not seized and that the exact amount misappropriated was not proved. The court held that the prosecution failed to prove the essential ingredients of entrustment and dishonest misappropriation. The conviction was based on surmises and conjectures. The High Court allowed the revision, set aside the conviction, and acquitted the petitioner.
Headnote
A) Criminal Law - Criminal Breach of Trust - Section 408 Indian Penal Code, 1860 - Entrustment of Property - The prosecution must prove beyond reasonable doubt that the accused was entrusted with property or had dominion over it, and that he dishonestly misappropriated or converted it to his own use. In the present case, the evidence of the auditor (PW1) and the investigating officer (PW2) did not establish entrustment or dishonest misappropriation, as the audit report was not exhibited and the prosecution failed to prove the exact amount misappropriated. Held that the conviction was not sustainable (Paras 5-8).
Issue of Consideration
Whether the conviction of the petitioner under Section 408 of the Indian Penal Code for criminal breach of trust is sustainable in law, given the alleged discrepancies in the accounts of the cooperative society.
Final Decision
The High Court allowed the Criminal Revision Application, set aside the judgment and order of conviction dated 10.1.2005 passed by the Judicial Magistrate, First Class, Sindkheda in R.C.C. No. 150 of 1998 and the judgment and order dated 30.11.2009 passed by the Additional Sessions Judge, Dhule in Criminal Appeal No. 2 of 2005. The petitioner was acquitted of the offence under Section 408 IPC. The bail bonds were cancelled.
Law Points
- Criminal breach of trust
- Section 408 IPC
- Entrustment of property
- Dishonest misappropriation
- Burden of proof
- Appreciation of evidence
- Audit report
- Presumption of innocence
Case Details
2010 LawText (BOM) (03) 8
Criminal Revision Application No. 336 of 2009
Joydeep Chatterjee, K.S. Patil
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Nature of Litigation
Criminal Revision Application challenging conviction under Section 408 IPC for criminal breach of trust.
Remedy Sought
The petitioner sought to set aside the conviction and sentence recorded by the trial court and upheld by the appellate court.
Filing Reason
The petitioner was convicted for allegedly misappropriating funds of a cooperative society while serving as its Secretary.
Previous Decisions
The Judicial Magistrate, First Class, Sindkheda convicted the petitioner on 10.1.2005 in R.C.C. No. 150 of 1998. The Additional Sessions Judge, Dhule dismissed the appeal on 30.11.2009 in Criminal Appeal No. 2 of 2005.
Issues
Whether the prosecution proved the ingredients of Section 408 IPC, particularly entrustment of property and dishonest misappropriation.
Whether the conviction based on the evidence of the auditor and investigating officer was sustainable.
Submissions/Arguments
The petitioner argued that the prosecution failed to prove entrustment and dishonest misappropriation, and the audit report was not exhibited.
The respondent argued that the evidence of PW1 and PW2 established the guilt of the petitioner.
Ratio Decidendi
For a conviction under Section 408 IPC, the prosecution must prove beyond reasonable doubt that the accused was entrusted with property or had dominion over it, and that he dishonestly misappropriated or converted it to his own use. In this case, the prosecution failed to prove entrustment and dishonest misappropriation as the audit report was not exhibited, the original Kird book and receipts were not produced, and the exact amount misappropriated was not established. The conviction based on surmises and conjectures is unsustainable.
Judgment Excerpts
It appears that the petitioner Hilal was in service as a Secretary of Vividh Karyakari Seva Sahkari Society Limited, Sawai Mukti (Society) and he was entrusted with the duty to maintain accounts and its related transactions.
The first informant Pandharinath i.e. PW1 was the second auditor, who carried out the audit of the said society for the period from 1.1.1982 upto 30.6.1983.
However, during the said audit, the first informant Pandharinath noticed that on various dates, such as, on 2.1.1982 (Rs.316/-), on 11.1.1982 (Rs.200/-), on 31.5.1982 (Rs.25/-), on 10.7.1982 (Rs. 1,000/-), on 22.5.1982 (Rs.255/-), on 15.6.1982 (Rs.218.19) and on 19.5.1982 (Rs.150/-) receipts were issued, but same were not shown in Kird book, and total receipts were shown less in the kird book, as also deposits were also not found to be shown in the bank.
Accordingly, the first informant Pandharinath called upon Hilal to submit his explanation, but he failed to do so.
Hence, on 14.12.1985, the first informant Pandharinath lodged a report (Exh. 26) and thereupon offence came to be recorded under CR No. 65 of 1985 against the applicant under Section 408 of the Indian Penal Code.
At the conclusion of trial, after appreciating the evidence adduced and produced on record, learned Judicial Magistrate, First Class, by judgment and order dated 10.1.2005 in R.C.C. No. 150 of 1998 convicted the petitioner for the offence punishable under Section 408 of the Indian Penal Code.
The learned Additional Sessions Judge, Dhule by judgment and order dated 30.11.2009 in Criminal Appeal No. 2 of 2005 dismissed the appeal and confirmed the conviction.
In the present revision, the court found that the prosecution failed to prove the essential ingredients of entrustment and dishonest misappropriation, and the conviction was based on surmises and conjectures.
Procedural History
The petitioner was convicted by the Judicial Magistrate, First Class, Sindkheda on 10.1.2005 in R.C.C. No. 150 of 1998 for an offence under Section 408 IPC. He appealed to the Additional Sessions Judge, Dhule, who dismissed the appeal on 30.11.2009 in Criminal Appeal No. 2 of 2005. The petitioner then filed a Criminal Revision Application No. 336 of 2009 before the Bombay High Court, which was allowed on 30.3.2010.
Acts & Sections
- Indian Penal Code, 1860: 408
