ORDER
A. Pasayat, J.
1. Petitioner (also referred to as the ‘accused’) questions his conviction for an offence punishable under Section 409 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentence of two years rigorous imprisonment and to pay a fine of Rs. 6,500/-, in default to undergo one year rigorous imprisonment, as awarded by learned Additional Chief Judicial Magistrate, Bhubaneswar and confirmed in appeal by the learned Additional Sessions Judge, Bhubaneshwar.
2. In a nutshell, the prosecution case is as follows :-
Accused was an employee in office of Executive Engineer, National Highway Division, Bhubaneshwar. On 24-3-1977, he was working as Treasury Sarkar, Sri G. T. Rao, the then Executive Engineer (P. W. 4) entrusted him with two bearer cheques, one for Rs. 1284.10, and the other for Rs. 10,000/- for encashment. Petitioner went to the State Bank of India, Bhubaneswar for encashment of the cheques and also took the office cycle. He did not return till late afternoon, but another peon Purna Ch. Pradhan came to the office with office cycle with a letter from accused addressed to the cashier stating that he was not able to come as his father had set with an accident, and he would deposit cash on the next day. He did not think it wise to send money through Purna. After handing over the chit, Purna immediately left the office. So P. W. 4 sent the cashier (P. W. 6) along with some other members of office staff to the house of accused to call him. In presence of the Divisional Accountant (P. W. 2), Cashier and others accused opened the cash bag wherein Rs. 5,084.10 was found instead of Rs. 11,284.10. Accused gave out that the balance was stolen away while he was going to the market. It was noticed that there was a small cut in the cash bag, which did not probabilise plea of the accused. Accused was thoroughly interrogated, and he changed his version by saying that he along with Purna Chandra Pradhan went to the residence of Purna, where an unknown person told that money would be doubled by chemical process. Accused gave Rs. 6,200/- to Purna who handed over the same to the unknown person, who put the money under two glasses, and covered it with cloth. He told that after two to three hours, money would be doubled. Subsequently, instead of money some ash was found in the glasses. Accused was asked to give a written statement of what he wanted to say, and he voluntarily gave a written statement. Purna also gave another statement. Thereafter, P. W. 4 lodged report at Sahidnagar P. S., the matter was investigated into, two cheques were seized from the Deputy Accountant General Office, Puri, cash of Rs. 5034.10, letters of accused and Purna and treasury remittance book were seized. After completion of investigation, chargesheet was submitted and accused faced trial. He pleaded his innocence. His stand was that there was no entrustment of cheques and that on account of enmity, Executive Engineer had foisted a false case against him.
3. In order to further its case, eight witnesses were examined by prosecution. As noted earlier, P. W. 2 is the Divisional Accountant of National Highway Division, Bhubaneswar P. W. 3 is the Head Clerk, P. W. 4 is the Executive Engineer, P. W. 5 is the S. D. O., National Highway Sub-division, Tangi, P. W. 6 is U. D. clerk and P. W. 1 is an employee of Deputy A. G. Office, Puri who produced cheques and P. Ws. 7 and 8 are Investigating Officers. One witness was examined by the accused in support of his plea of innocence. Learned A.C.J.M. on evaluation of evidence, found accused guilty and convicted and sentenced him as aforesaid. Appeal did not bring any relief.
4. Mr. S. P. Sarangi, learned counsel for petitioner urged that in order to constitute an offence under Section 409,I. P. C, entrustment is the sine qua non. According to him, evidence is discrepent so far as entrustment of cheque is concerned. Additionally, many relevant records like bank statement, cheque issue register, cheque book and cash book which would have reflected true and correct position were not tendered as evidence. Without any plausible explanation, the aforesaid material records have been witheld. With reference to evidence of P, Ws. 4 and 6, it is submitted that different versions have been given about alleged Landing over cheque. P. W. 4 has stated that the cashier (P. W. 6) delivered cheques to the accused, but P. W. 6 has stated that two cheques were handed over to the accused by the Executive Engineer (P. W. 4) for withdrawal of money from the State Bank of India. Learned counsel for State submits that merely because of slight discrepancy about the person who handed over the cheques, it cannot be said that the prosecution has not established its case. It is submitted that non-production of cash book, cheque issue register and bank statement does not in any way affect credibility of prosecution case.
5. Section 409 classes together public servants, bankers, merchants, brokers, attorneys and agents. As a rule, duties of such persons are of highly confidential character, involving great powers of control over property entrusted to them; and a breach of trust of such persons may often induce serious public and private calamity. In order to bring a case within compass of Section 409, it is necessary to show that property was entrusted to a public servant, and that he accepted property entrusted, being in his public capacity required or authorised to accept it. Otherwise, in accepting property he acts as a mere volunteer, is not entrusted with it in his capacity as a public servant. It is not sufficient to show that some person delivered property to him because he was public servant. The motive which induced the person to deliver property cannot alone determine quality of the trust created. The section presupposes entrustment. The word ‘entrusted’ when used with respect to money, means that money has been transferred to the accused in circumstances which shows notwithstanding it is delivered to the accused, property in it continues to vest with the presenter and money remains in possession or control of the accused as a bailee to be restored to the bailor or dealt with in accordance with his instructions.
6. It is not necessary that property should be that of the Government, but it should have been entrusted to a public servant in that capacity. Section 409 does not limit mode in which entrustment arises; whether by specific order or by reason of it being part of duty of a public functionary.
7. Dishonesty is a pre-requisite for a prosecution under Section 409, I. P. C. Distinct proof of criminal misappropriation is necessary. It is not necessary however, to prove actual mode of misappropriation. Where it is proved by prosecution that money was not returned by the accused which he was bound to do, it lies on the accused to prove his innocence. Proof as to the precise manner in which accused has dealt with money is not necessary. Question is one of intention, “Criminal breach of trust” is defined in Section 406, I. P. C. Following essential ingredients are to be established to secure a conviction.
(i) It must be strictly proved that the accused was either a public servant or banker, or merchant or a broker or an attorney or an agent.
(ii) That he was in such capacity entrusted with property in question or with dominion over it.
(iii) He dishonestly misappropriated or converted to his own use that property, dishonestly used or disposed of that property, or wilfully suffered any other person so as to do in violation.
(a) of any direction of law prescribing the mode in which such trust is to be discharged, or
(b) of any legal contract made touching the discharge of such trust.
8. Section 409 consists of any one of the positive acts, namely, misappropriation, conversion, user, or disposal of property, by any person belonging to one of the category of persons enumerated in the section. In criminal misappropriation, the property comes into possession of the offender by some casuality or otherwise, and he afterwards misappropriate it. In the case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or wilfully suffers any other person as to do, instead of discharging the trust attached to it.
9. There is no definite material as to who made alleged entrustment. Evidence of P. Ws. 4 and 6 is relevant in this regard. They have given divergent versions, as regards manner of controversy. There is another interesting feature. One of the cheques is supposed to be a personal cheque of the Executive Engineer. So far as that cheque is concerned, it cannot be said that accused received it as a public servant. In respect of that cheque, question of petitioner having committed an offence punishable under Section 409, I. P. C. does not arise. Further, P. W. 4 has accepted that the accused has not signed the cheques (Exts. 11/4 and 12/4) in his presence. Therefore, question of P. W. 4 having attested signature of accused on the back side of the cheques, does not arise, no explanation whatsoever is offered for non-production of the cash book, cheque issue register, cheque book, counterfoils of cheques issued and bank statement. P. W. 3 has stated that cash book, cheque book containing counterfoils of concerned cheques along with other articles were seized and given in his firm (sic). P. W. 4 has admitted that a cheque issue register is maintained, wherein any person receiving a cheque puts his signature.
18. The inevitable conclusion is that the prosecution has failed to establish its case and the accused-petitioner is entitled to be acquitted. His conviction and consequentially sentences awarded are set aside. Bail-bonds of the petitioner be discharged.
Criminal Revision is allowed.