PETITIONER: KRISHAN KUMAR Vs. RESPONDENT: THE UNION OF INDIA DATE OF JUDGMENT: 21/05/1959 BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER CITATION: 1959 AIR 1390 1960 SCR (1) 452 ACT: Criminal Trial-Misappropriation-Servant receiving goods but failing to account to master--Proof of conversion, if necessary--False explanation by servant, whether can be taken into consideration-Prevention of Corruption, 1947 (II Of 1947), s. 5(1)(c). HEADNOTE: The appellant was employed as an Assistant Store Keeper in the Central Tractor Organisation, Delhi. He took delivery of a consignment of iron and steel received by rail for the Organisation and removed them from the railway siding. The goods did not reach the Organisation. The appellant absented himself from duty on the following days and when he was called he gave a false explanation that he had not taken delivery of the goods. The appellant 1 was tried for misappropriation of the goods, under S. 5(1)(c) of the Prevention of Corruption Act, 1947. At the 453 trial, he took the defence that he had moved the goods to another siding but this was not accepted and the appellant was convicted. The appellant contended that his conviction was bad as the prosecution had failed to prove that he converted the goods to his own use and did not apply them to the purpose for which he had received them. Held, that the appellant had been rightly convicted. The offence of misappropriation was established when the prosecution proved that the servant received the goods, that he was under a duty to account to his master and that he had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it was for him to explain the loss; it was not for the prosecution to eliminate all possible defences or circumstances which may exonerate him. The giving of a false explanation was an element which the Court could take into consideration in determining the guilty intention. Harakrishna Mehtab v. Emperor, A.I.R. (1930) Pat. 209; Larnier v. Rex, (1914) A.C. 221; Emperor v. Santa Singh, A.I.R. (1944) Lah. 338; Emperor v. Chattur Bhuj, (1935) I.L.R. Pat. 108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch, (1854) 6 Cox. C. C. 445, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 114
of 1957.
Appeal by special leave from the judgment and order dated
December 6, 1955, of the Punjab High Court (Circuit Bench)
Delhi in Criminal Appeal No. 25-D of 1953, arising out of
the judgment and order dated August 27, 1953, of the Court
of the special judge at Delhi in Criminal Case No. 3 of
1953.
R. L. Anand, and S. N. Anand, for the appellant.
H. J. Umrigar, and R. H. Dhebar, for the respondent.
1959. May 21. The Judgment of the Court was delivered
by
KAPUR J.-This appeal by special leave is brought against the
judgment and order of the High Court of the Punjab
confirming the order of conviction of the appellant under s.
5(1)(c) of the Prevention of Corruption Act, 1947 (11 of
1947) (hereinafter referred to as the Act). The High Court
reduced the sentence of the appellant to nine months’
rigorous imprisonment.
454
The appellant was employed as an Assistant Store keeper
in the Central Tractor Organisation at Delhi and amongst
other duties his duty was the taking of delivery of
consignment of goods received by rail for Central Tractor
Organisation and in that capacity he is alleged to have
misappropriated a major portion of a wagon load of iron and
steel weighing about 500 Mds. received at Delhi Railway
Station from the Tata Iron & Steel Co., Tatanagar, under
Railway Receipt No. 039967 dated August 12, 1950. This
consignment of goods was taken delivery of on October 2,
1950 at the Lahori Gate Depot. The consignment had been
lying at the Railway depot for a considerable time and the
Central Tractor Organisation was, before taking the
delivery, making efforts to have the wharfage and demurrage
charges reduced but it only succeeded in getting a reduction
of Rs. 100. The appellant paid Rs. 2,332-4-0 for demurrage
by means of credit notes P. N. and P. 0. on October 2, and
on the following day he paid a further sum of Rs. 57-3-0 by
a credit note P. Q. The prosecution case was that this
consignment never reached the Central Tractor Organisation
and that the appellant had removed these goods and had
misappropriated them. He was absent from work after October
4, 1950, on the alleged ground of illness but he was sent
for on October 7, and appeared before the Director of
Administration Mr. F. C. Gera and he gave an explanation
that he (the appellant) had lost the Railway Receipt along
with another Railway Receipt and blank credit notes which
had been signed by the Petrol and Transport Officer. He
also stated that he did not know that the goods covered by
that Railway Receipt had been cleared. After this
explanation the appellant was. handed over to the police and
a case was registered against him at the instance of Mr.
F.C. Gera on October 7, 1950.
On the following day, that is, October 8, 1950, the
appellant made a statement to Sub-Inspector Sumer Shah Singh
that he had given the goods to Gurbachan Singh who was
traced and in the presence of this Sub-Inspector who was not
in uniform at the time Gurbachan Singh handed over Rs. 200
to the appellant
455
which the Sub-Inspector took possession of and then
Gurbachan Singh took the party which consisted of the Sub-
Inspector, Dharam Vir of the Central Tractor Organisation
and witness Kartar Singh to the premises, of Amar Singh at
Kotia Khan where iron and steel goods were seized and
recovery memos prepared. Of the goods covered by the
consignment seven packages were later recovered from the
Lahori Gate Goods Depot.
The defence of the appellant was that he took delivery of
the goods on October 2 and 3 and removed them to another
Railway Siding known as Saloon Siding where the goods of the
Central Tractor Organisation used occasionally to be stacked
in order to save wharfage and demurrage. In his evidence he
stated that he removed these goods to the Saloon Siding on
October 2 and 3 by means of a truck of the Central Tractor
Organisation which was driven by Sukhdev Singh. The
appellant produced Sukhdev Singh and two chowkidars in
support of his defence that he had removed these goods from
the Lahori Gate Depot to the Saloon Siding by means of the
truck of Sukhdev Singh and on some on carts. The High Court
has not accepted this evidence. Therefore the position
comes to this that the goods received in that consignment
were, according to the appellant’s own showing, removed from
the Lahori Gate Depot but it is not proved that they
reached’ the Saloon Siding and they did not reach the
Central Tractor Organisation. There is also the fact that
the appellant gave false explanation on October 7, 1950, as
to what had happened to the Railway Receipt or the credit
notes which he had received from the Central Tractor
Organisation and there is the further fact that the
appellant was absent from duty from October 4 to October 7
till he was sent for Mr. F.C. Gera.
The prosecution also tried to show that the goods were
removed by Gurbachan Singh to Amar Singh’s place from where
certain iron and steel goods were recovered. Now these iron
and steel goods do not tally with the goods which were
received from Tatanagar under Railway Receipt No. 039967 and
the goods
456
seized from Amar Singh’s place have not been shown to be of
the Tata Iron & Steel Co’s manufacture. Therefore the case
reduces itself to this that the appellant took delivery of
the goods. These goods were removed-from the Lahori Gate
Railway Depot by the appellant and they never reached the
Central Tractor Organisation. The prosecution sought to
connect the goods found at Amar Singh’s place with the goods
received, taken delivery of and removed by the appellant but
they failed to do so because neither the identity of the
goods is the same nor has Gurbachan Singh been produced to
depose that it was the appellant who asked him to remove the
goods for being taken to Amar Singh’s place.
In this view of the matter the question for decision is
whether the case of the prosecution should be held to be
proved that the appellant had misappropriated the goods. It
emerges from the evidence of both parties that the goods
were received by the appellant and removed by him; and they
never reached the Central Tractor Origanisation. Indeed
before the High Court it was not disputed that the appellant
took delivery of the whole consignment at Lahori Gate Depot
and ” he was responsible for the actual removal of two
considerable portions of the consignment on the 2nd and 3rd
of October. ”
The offence of which the appellant; has been convicted is s.
5(1) (c) of the Act which is as follows:-
5. (1) ” A public servant is said to commit
the offence of criminal misconduct in the
discharge of his duty
(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his
own use any property entrusted to him or under
his control as a public servant or allows any
other person so to do “;
The word dishonestly’ is defined in s. 24 of the Indian
Penal Code to be
” Whoever does anything with the intention of
causing wrongful gain to one person or
wrongful loss to another person. is said to do
that thing dishonestly’.
457
” Fraudulently has been defined in the Indian Penal Code in
s. 25 as follows:
” A person is said to do a thing fraudulently
if he does that thing with intent to defraud
but, not other-, wise.”
Wrongful gain includes wrongful retention and wrongful loss
includes being kept out of the property as well as being
wrongfully deprived of property. Therefore when a
particular thing has gone into the hands of a servant he
will be guilty of misappropriating the thing in all
circumstances which show a malicious intent to deprive the
master of it. As was said by Fazl Ali, J., in Harakrishna
Mahtab v. Emperor (1):
” Now I do not mean to suggest that it is
either necessary or possible in every case of
criminal breach of trust to prove in what
precise manner the money was spent or
appropriated by the accused; because under the
law, even temporary retention is an offence,
provided that it is dishonest………… I
must point out that the essential thing to be
proved in case of criminal breach of trust is
whether the accused was actuated by dishonest
intention or not. As the question of
intention is not a matter of direct proof, the
Courts have from time to time laid down
certain broad tests which would generally
afford useful guidance in deciding whether in
a particular case the accused had or had not
mens area for the crime. So in cases of
criminal breach of trust the failure to
account for the money proved to have been
received by the ‘accused or giving a false
account of its use is generally considered to
be a strong circumstance against the accused.”
The offence under s. 5(1)(c) is the same as embezzlement,
which in English law, is constituted when the property has
been received by the accused for or in the name or on
account of the master or employer of the accused and it is
complete when the -servant fraudulently misappropriates that
property. (Halsbury’s Laws of England, Vol. 10, 3rd Edition,
p. 787) In Larnier v. Rex (2) the offence of embezzlement
was
(1) A.I. R. (1930) Patna 209. (2) (1914) A.C. 221,
458
described as a wilful appropriation by the accused of the
property of another. A court of Justice, it was said in
that case “cannot reach the conclusion that ,the crime has
been committed unless it be a just result of the evidence
that the accused in what was done or omitted by him was
moved by the guilty mind.”
So the essence of the offence with which the appellant was
charged is that after the possession of the property of the
Central Tractor Organisation he dishonestly or fraudulently
appropriated the property entrusted to him or under his
control as a public servant and deprived the owner, i.e.,
Central Tractor Organisation of that property.
It is not necessary or possible in every case to prove in
what precise manner the accused person has dealt with or
appropriated the goods of his master. The question is one
of intention and not a matter of direct proof but giving a
false account of what he has done with the goods received by
him. may be treated a strong circumstance against the
accused person. In the case of a servant charged with
misappropriating the goods of his master the elements of
criminal offence of misappropriation will be established if
the prosecution proves that the servant received the goods,
that he was under a duty to account to his master and had
not done so. If the failure to account was due to an
accidental loss then the facts being within the servant’s
knowledge, it is for him to explain the loss. It is not the
law of this country that the prosecution has to eliminate
all possible defences or circumstances which may exonerate
him. If these facts are within the knowledge of the accused
then he hag to prove them. Of course the prosecution has to
establish a prima facie case in-the first instance. it is
not enough to establish facts which give rise to a suspicion
and then by reason of s. 106 of the Evidence Act to throw
the onus on him to prove his innocence. See Harries, C.J.,
in Emperor v. Santa Singh In the present case the appellant
received the consignment of goods which came from Tatanagar.
It is admitted that he removed them and it was found by
(1) A.I.R. (1944) Lah. 338 at P. 346.
459
the High Court that they never reached the Central Tractor
Organisation. He gave an explanation in court which has
been found to be false. Before Mr. F. C. Gera he made a
statement to the effect that he had lost the Railway Receipt
and therefore had never got the delivery of the goods which
was also false. In these circumstances, in our opinion, the
court would be justified in concluding that he had
dishonestly misappropriated the goods of the Central Tractor
Organisation. The giving of false explanation is an element
which the Court can take into consideration. (Emperor v.
Chattur Bhuj (1)). In Rex v. William (2). Coleridge, J.,
charged the jury as follows :”
The circumstances of the prisoner having quit-
ted her place and gone off to Ireland is
evidence from -which you may infer that she
intended to appropriate the money and if you
think that she did so intend, she is guily of
embezzlement”.
Again in Reg v. Lynch (3), Moore, J., said:-
” You have further the fact that, after
getting the money, the prisoner absconded and
did not come back till he was in custody. You
may infer that he intended to appropriate this
money, and if so, he is guilty of
embezzlement.”
The appllent’s counsel relied on certain observations in
certain decided cases which, according to his submission,
support his contention that the prosecution has to prove not
only receipt of goods by the accused but also to prove that
he converted them to his own use and did not apply them to
the purpose for which he received them. He referred to
Ghulam Haider v. Emperor(4) ;In re Ramakkal & Others (5);
Bolai Chandra Khara v. Bishnu Bejoy Srimani (6) Bhikchand v.
Emperor (7) ;Pritchard v. Emperor (8). So broadly stated
this submission does not find support even from the cases
relied upon by the appellant’s counsel. They are all
decisions on the peculiar circumstances of each case. In
Ghulam Haider’s case (4)
(1) (1935) I.L.R. 15 Patna 108. (5) A.I.R. 1938 Mad.
172.
(2) (1836) 7 C. & P. 338. (6) A.I.R. 1934 Cal.
425.
(3) 1854 6 Cox. C.C. 445. (7) A.I.R. 1934 Sindh
22.
(4) AI.R. 1938 Lah. 534. (8) A.I.R. 1928 Lah.
382.
460
the proposition was qualified by saying that proof of
receipt and failure to account ” is a long way towards proof
of misappropriation but not the whole way.” In that case the
books in which receipts ought to have been entered were not
produced and there was absence of ” clear accounts.” In
Ramakkal’s case (1) the accused was the receiver of a
currency note found by a child and it was held that’ mere
intention to misappropriate or even preparation to that end
was not an offence. It was a case brought to the High Court
at an intermediate stage for quashing the charge and the
High Court did not do so. Bolai Chandra Khara’s case (2)
only emphasised that proof of one element of the criminal
breach of trust is not enough for conviction and proof of
non-payment of money collected by a gomastha must be given
by the prosecution. In Bhikchand’s case (3) it was held that
it is only on proof of non-payment of money received by the
accused that ” presumption will arise of misappropriation.”
In Pritchard’s case (4) also the prosecution did not produce
the books of account showing nonpayment. All these
decisions must be confined to their peculiar facts and in
their ultimate analysis do not support the proposition
contended for by the appellant.
What the prosecution have proved in this case is that the
appellant took delivery of the goods on October 2 and 3. His
own statement on oath shows that he removed these goods from
the Railway Siding. This removal is also proved by
documentary evidence in the form of gate passes. There is
also proof of the fact that the goods did not reach the
Central Tractor Organisation. The appellant has given an
explanation that he removed these goods to the Saloon
Siding. This explanation has not been accepted. The pro-
secution have also proved that the appellant in the first
instance gave a false explanation that he had not taken
delivery of the goods. He had absented himself from duty
and had to be called by the Officer-in-charge. He has set
up the defence of removal to the Saloon Siding which was not
accepted.
(1) A.I.R. 1938 Mad. 172. (3) A.I.R. 1934 Sindh 22.
(2) A.I.R. 1934 Cal, 425. (4) A.I.R. 1928 Lah. 382.
461
The prosecution also set out to prove that the goods were
disposed of by the appellant by giving them to one Gurbachan
Singh who in turn put these at the premises of Amar Singh
and some steel goods were’ recovered from there but the
prosecution have neither produced Gurbachan Singh nor has it
been proved that the goods are part of the consignment which
was taken delivery of by the appellant. If under the law it
is not necessary or possible for the prosecution to prove
the manner in which the goods have been misappropriated then
the failure of the prosecution to prove facts it set out to
prove would be of little relevance. The question would only
be one of intention of the appellant and the circumstances
which have been above set out do show that the appellant in
what he has done or has omitted to do was moved by a guilty
mind.
In our opinion the appellant was rightly convicted and we
would therefore dismiss this appeal.
Appeal dismissed.