ANWAR CHAND SAB NANADIKARversusSTATE OF KARNATAKA

               ANWAR CHAND SAB NANADIKAR                               A
                                 V.

                     STATE OF KARNATAKA

                       SEPTEMBER 17, 2003

        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]                      B
     Penal Code, 1860 : Sections 405 and 409.

      Criminal breach of trust by public servant-Ingredients of-Accused,
who was property clerk in the court of Judicial Magistrate, allegedly C
misappropriated properties belonging to the court and sold them to four
persons-Trial court acquitted the accused as the evidence was not
satisfactory regarding entrustment and misappropriation-But the High
Court convicted the accused-Correctness of-Held: To sustain conviction
under S.409 two ingredients must be proved viz., (i) that the accused was
entrusted with property and (ii) that the accused misappropriated it or D
converted it to his own use to the detriment of the persons who entrusted
it-In the instant case, accused had custody as well as domain over the
court's property which he had misused-Hence conviction upheld.

     Words and Phrases :
                                                                       E
     "Criminal breach of trust"-Meaning of-Jn the context of Section
405 of the Penal Code, I 860.

     According to the prosecution, the appellant, who was the property
clerk in the court of the Judicial Magistrate, misappropriated certain F
properties belonging to the court and sold them to four persons. It was
the further case of the prosecution that the properties in question were
under the domain of the appellant.

     The appellant-accused was charged with an offence under Section G
409 of the Penal Code, 1860. Trial Court acquitted him. However, the
High Court convicted the appellant. Hence this appeal.

     Dismissing the appeal, the Court

     HELD : l. The basic requirement to bring home the accusations H
                               875
    876                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A under Section 405 IPC are the requirements to prove con-jointly (i)
    entrustment and (ii) whether the accused was actuated by the dishonest
    intention or not misappropriated it or converted it to his own use to the
    detriment of the persons wl10 entrusted it. As the question of intention is
    not a matter of direct proof, certain broad tests are envisaged which
B   would generally afford useful guidance in deciding whether in a particular
    case the accused had mens rea for the crime. (878-G-H)

        2. The evidence clearly shows that the accused was acting as a
    property clerk and had custody as well as domain over the courts'
    properties, which included the articles with which the present case is
                                                                                  -
C   concerned. (879-A-B)

         3. In the present case, the position is totally different. No
    explanation, much less plausible has been given. The High Court is,
    therefore, right in setting aside the order of acquittal. (880-F-G)
D
         Rabindra Kumar v. State of Orissa, AIR (1977) SC 170, held
    inapplicable.

         Jaikrishnadas Manohardas Desai v. State ofBombay, AIR (1960) SC
    889, referred to.
E
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1712 of 1996.

         From the Judgment and Order dated 23.11.95 of the Kamataka High
F   Court in Crl. A. No. 738 of 1989.

          K.B. Sinha, G.V. Chandrasekhar and P.P. Singh for the Appellant.

          Sanjay R. Hegde for the Respondent.

G         The Judgment of the Court was delivered by

          ARIJIT PASAY AT, J. : The Court of law is described as a temple
    of justice. Logically, the Presiding Officer is the "Pujak" and members of
    staff are the "Sewaks", It is, therefore, a matter of grave concern when a
H   "Sewak" is alleged to have misappropriated funds of the temple.
     ANWAR CHAND SAB NANADIKAR v. STATE [PASAYAT,J.] 877

     Appellant who was the property clerk in the Court of Judicial A
Magistrate, First Class, Chikodi, allegedly misappropriated properties
belonging to the Court and sold them to four other persons who were
acquitted by the trial Court along with the present appellant. While the
appellant stood charged for commission of offence punishable under
Section 409 of the Indian Penal Code, 1860 (in short the 'IPC') the rest B
four stood charged for commission of offence punishable under Section
411 IPC. The prosecution alleged that while the properties in question were
under the domain of the appellant, he sold them to accused nos. 2 to 5
during the period 2.3.1979 to 6.6.1985 and, therefore, committed the
offence as alleged. After charge was framed all the five persons faced trial
before the Principal Civil Judge and Judicial Magistrate, First Class, C
Chikodi, who by judgment dated 4th July, 1989 held that all the accused
persons were not guilty of the changes. He, inter alia, observed that the
evidence was not satisfactory regarding entrustrnent and misappropriation.

       The State ofKarilataka preferred an appeal before the Kamataka High D
Court and the Division Bench by the impugned judgment held that no
intt:rference was called for in the case of the other four accused who were
acquitted. So far as the present appellant is concerned, it was held that the
accusations were established by the evidence on record. During the
pendency of the appeal the Court felt that there were some aspects which E
were required to be gone into, and, therefore, by exercise of power under
Section 391 of the Code of Criminal Procedure, 1973 (for short the 'Code')
directed certain materials to be brought on record by the Trial Court. That
was done. After that by the impugned judgment, the High Court convicted
the appellant for commission of offence under Section 409 IPC and F
sentenced him to undergo imprisonment for one year.

      In support of the appeal, learned counsel for the appellant submitted
that the evidence was unreliable and both the trial Court and the High Court
did not place reliance on major portion of the evidence. Further the
ingredients necessary to bring home accusations under Section 409 were G
not present. Strong reliance was placed by the appellant on decision of this
Court in Rabindra Kumar Dey v. State of Orissa, AIR (1977) SC 170 to
contend that the High Court's judgment is not tenable. It was submitted
that only entries in the books of accounts were made by the accused and
there was nothing beyond that to show that accused was acting as a H
    878                    SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A property clerk. Additionally, it was submitted that as noticed by this Court
    in Rabindra Kumar Dey's case (supra) mere entrustment without anything
    else cannot establish accusations under Section 409 IPC.

         Section 409 IPC deals with criminal breach of trust by public servant,
B   or by banker, merchant or agent. In order to bring in application of said
    provision, entrustment has to be proved. In order to sustain conviction
    under Section 409, two ingredients are to be proved. They are :

             (I)    the accused, a public servant, or banker or agent was
                    entrusted with property of which he is duty bond to account
c                   for; and

             (2)    the accused has committed criminal breach of trust.

       What amounts to criminal breach of trust is provided in Section 405
  IPC. Section 409 is in essence criminal breach of trust by a category of
D persons. The ingredients of the offence of criminal breach of trust are : -
             (I)    Entrusting any person with property, or with any dominion
                    over property.

             (2)    The person entrusted (a) dishonestly misappropriating or
E                   converting to his own use that property; or (b) dishonestly
                    using or disposing of that property or willfully suffering any
                    other person so as to do in violation -

             (i)    of any direction of law prescribing the mode in which such
F                   trust is to be discharged; or

             (ii)   of any legal contract made touching the discharge of trust.

        The basic requirement to bring home the accusations under Section
  405  are  the requirements to prove con-jointly (I) entrustment and (2)
G whether the accused was actuated by the dishonest intention or not
  misappropriated it or converted it to his own use to the detriment of the
  persons who entrusted it. As the question of intention is not a matter of
  direct proof, certain broad tests are envisaged which would generally afford
  useful guidance in deciding whether in a particular case the accused had
H mens rea for the crime.
     ANWAR CHAND SAB NANADIKAR v. STATE [PASAYAT, J.] 879

      In response, learned counsel for the State of Kamataka has submitted A
that the High Court analysing the evidence on record noticed fallacies in
the conclusions arrived at by the trial Court and, therefore, has rightly held
the accused guilty. The evidence of the magistrate who was examined as
PW-5 clearly shows that the accused was acting as a property clerk and
had custody as well as domain over the courts' properties which included B
the articles with which the present case is concerned. The High Court has
considered the similar stand. It was noticed that cogent and reliable
evidence was adduced to show that appellant was working as a property
clerk from 2.3.1979 to 6.6.1985 and that he was entrusted with the courts'
properties and had domain over them including the articles 1 to 23.
                                                                           c
      It was the stand of the appellant that he did not work as a property
clerk after 2.2.1980. Such a stand has rightly been rejected by the High
Court in view of PW! 's evidence. It was noticed by the High Court that
the prJperties register was Exhibit P-1. On I 0.1.1980 the appellant
proceeded on commuted leave for 25 days w.e.f. 4.2.1980 to 28.2.1980 to D
avail leave travel concession. In the concerned office order there was no
direction to the appellant to hand over the charge of properties in the court
property room to a witness Harugon. When the appellant admitted that he
had gone on leave from 4.2.1980 to 28.2.1980 and as rightly held by the
High Court there is no material to show that after returning from leave the E
accused had not assumed office, this plea is clearly untenable because as
a normal consequence after returning from leave the appellant is supposed
to have taken over as property clerk. That apart, there was ample material
to show that he was only maintaining Ex. P-1 register even thereafter till
6.6.1985 and producing before Court MOS, as and when required.
                                                                            F
      Essentially the question is whether the analysis of the High Court in
view of the evidence on record is sustainable. We find that the factual
aspects have been highlighted by the prosecution to show that accused was
guilty. The decision in Rabindra 's case (supra) is of no assistance to the
accused-appellant because in that case there was no material to show any G
mens rea apart from the fact that the entrustment itself was not fully
established. The accusations were not brought to the notice of the accused.
Additionally, his explanation as offered was not examined at all. Factual
scenario being different in the present case the conclusions arrived at in
the decision sought to be relied have no bearing so far as present case is H
    880                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A concerned, as the accusations have been fully established. The evidence
    of PWS 1, 8 and 10 conclusively establish that accused-appellant was in-
    charge of the properties and he could not either produce those articles or
    properly account for them when he was asked to do so, as was obligated
    for him.
B       In Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay,
    AIR (1960) SC 889, it was held as follows :

                  "To establish a charge of criminal breach of trust, the
             prosecution is not obliged to prove the precise mode of conversion,
C            misappropriation or misapplication by the accused of the property
             entrusted to him or over which he has dominion. The principal
             ingredient of the offence being dishonest misappropriation or
             conversion which may not ordinarily be a matter of direct proof,
             entrustment of property and failure, in breach of an obligation, to
D            account for the property entrusted, if proved, may in the light of
             other circumstances, justifiably lead to an inference of dishonest
             misappropriation or conversion. Conviction of a person for the
             offence of criminal breach of trust may not, in all cases, be
             founded merely on his failure to account for the property entrusted
             to him, or over which he has dominion, even when a duty to
E            account is imposed upon him but where he is unable to account
             which is untrue, an inference of misappropriation with dishonest
             intent may readily be made."

          This case was considered in Rabindra Kumar's case (supra). It was
F held that proposition cannot be doubted. But the question is whether the
    explanation is absolutely false. It is in that background, this Court held that
    the accusations were not established. In the present case, the position is
    totally different. No explanation, much less plausible has been given. The
    High Court is, therefore, right in setting aside the order of acquittal so far
G   as the appellant is concerned. The appeal fails and is dismissed.

          v.s.s.                                               Appeal dismissed.