Holding

Entrustment or dominion over the diesel oil was not established against Jiwan Dass, so his conviction under Section 409 IPC is unsustainable, while Mittar Pal Yadav's conviction for embezzlement is upheld.

Summary

Jiwan Dass and Mittar Pal Yadav, employees of the Government Heat Treatment Centre, were authorized to procure 10,000 litres of light diesel oil from Indian Oil Corporation. The diesel delivered was short by 4,300 litres. The prosecution charged both under Section 409 of the IPC for criminal breach of trust. The Supreme Court held that while there was clear evidence that Mittar Pal Yadav took delivery of the diesel, the prosecution failed to prove that Jiwan Dass was entrusted with or had dominion over the diesel, a requisite element for Section 409. Consequently, Jiwan Dass's conviction was set aside and he was acquitted, whereas Mittar Pal Yadav's conviction for embezzlement was upheld. The Court emphasized the need for strict proof of entrustment or dominion in criminal breach of trust cases.

Issues considered

Whether Jiwan Dass was entrusted with or had dominion over the diesel oil sufficient to constitute criminal breach of trust under Section 409 IPC.
Whether the prosecution established the element of entrustment/dominion beyond reasonable doubt.
Whether the conviction of Mittar Pal Yadav for embezzlement of diesel oil stands.

Legislation cited

Indian Evidence Act, 1872s. 17, s. 24
Indian Penal Code, 1860s. 409

Subjects

criminal breach of trustSection 409 IPCentrustmentpublic servantembezzlementdiesel oilevidencedominonconvictionacquittal

Judgment

A JIWANDASS
v.
STATE OF HARYANA

FEBRUARY 26, 1999

B (G.B. PATTANAIK AND M.B. SHAH, JJ.)

Criminal Law :

Penal Code, 1860 : Section 409.
c Criminal breach of trust-By public servant-<:harg~stablishing
of-lngredients'to be proved-Held: Prosecution must establish (i) Accused
is a public servant (ii) is in such capacity entmsted with property or with
dominion over it and (iii) he committed criminal breach of tmst in respect of
it-Strict proof must be given.
D
Criminal breach of tmst-By public servanH and M, employees of
Government Heat Treatment Centre, authorised to bring certain quantity of
light diesel oil from Indian Oil Corporation (IOC)--For that purpose bank
draft and authority letter given to !-But M took delivery of diesel oil and
E signed the cash memo as well as the register in token thereof-Oral evidence
of Senior Technical Officer, Government Heat Treatment Centre and Depot
Manager IOC confirmed that M took delivery of diesel oil-flowever, diesel
oil was found to be deficient by 4300 litres-Subsequently, J gave an under-
taking to make up the deficiency-Held: in view of said oral evidence there is
no entmstment of diese~ or dominion over the same, to !-Handing over of
F bank draft and authority letter to J cannot lead to a contrary inter-
ferenc~ven the said undertaking by J cannot amount to confession or
admission of guilt on the part of !-Hence, conviction of J under S. 409 not
sustainable-However, in view of oral and documentary evidence, Mis rightly
held guilty of embezzlement of 4300 litres of diesel oil-flence his conviction
G is upheld-Evidence Act, 1872, Ss. 17 and 24.
Property-Entrustrnent of--f'roof-Absence of legal and independent
proof of entrustrnent-However, partial admission of entrustment obtained by
putting a question with regard to entmstment-Held: Such partial admission
not sufficient to prove entmstment-Rather, it is improper to even put such a
H question.
922
JIWAN DASS v. STATE 923

-.;: The appellants-accused were convicted by the Trial Court Section A
409 of the Penal Code, 1860 and sentenced to undergo rigorous imprison-
ment for the three years. The Sessions Judge affirmed the conviction and
sentence. The High Court dismissed the revision petition. Hence these
appeals.

According to the prosecution, J and M, employees of Government B
... Heat Treatment Centre, were authorised to bring a certain quantity of light
diesel oil from Indian Oil Corporation (IOC). For that purpose a bank
draft and an authority letter were given to J which were deposited in the
I OC office M took delivery of the diesel oil and in token there had not only
signed on the cash memo but also on the register itself. Senior Technical c
Officer, Government Heat Treatment Centre and Depot Manager, IOC in
their oral evidence, confirmed that M took delivery of the diesel oil.
However, on actual measurement the diesel oil was found to be deficient
by 4300 litres. Subsequently, J gave an undertaking that he would make
up the deficiency .
~
D
Disposing of the appeals, this Court
I
HELD : 1. To bring home a charge under Section 409 of the Penal
Code, 1860, what is necessary to be proved is that the accused is a public
servant and in such capacity he was entrnsted with the property in ques-
tion or with dominion over it and that he committed criminal breach of
E
trust in respect of it. The prosecution must strictly prove the necessary
elements constituted in the offence. It is true that prosecution need not
prove the actual mode of misappropriation and once entrustment of or
dominion over the property is established, then it would be for the accused
-I to explain as to how the property was dealt with. [926-D-F] F
2. In view of the oral evidence of Senior Technical Officer, Govern-
ment Heat Treatment Centre and Depot Manager, India Oil Corporation
that M and taken delivery of the diesel oil it must be held that neither
there was entrustment of diesel oil to J nor J had any dominion over the
same. Mere fact that J was given the bank draft and authority letter to G
take delivery of diesel oil does not amount to entrustment of diesel oil to
J or that he had dominion over the same. Even the subsequent undertaking
t given by J to make up the deficiency cannot amount to a confession or
admission of guilt on the part of J. Hence, conviction of J under Section
409 IPC cannot be sustained. However, in view of oral and documentary H
924 SUPREME COURT REPORTS [1999) 1 S.C.R.

A evidence M is rightly held to be guilty of embezzlement of 4300 litres of
diesel oil. Therefore, his conviction under Section 409 IPC is upheld.
[928-B-F]
3. In a prosecution for offence of criminal breach of trust if there is
absence of legal and independent evidence with regard to the entrustment,
B then it would be improper either to put a question with regard to the
entrustment to the accused and if put and an answer is obtained, partially
admitting entrustment, the same does not establish the case of entrust-
ment. [928-G-H; 929-A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
C 990 of 1995 Etc.

From the Judgment and Order dated 22.3.93 of the Punjab &
Haryana High Court in Cr!. R. No. 245 of 1992.

R.K. Jain, Rajeev Sharma, Rajni Narayan, Ranbir Yadav and Atul
D Kumar for the Appellants.

Ajay Siwach and Prem Malhotra for the Respondent.

The Judgment of the Court was delivered by

E PATIANAIK, J. Both these appeals are directed against the Judg-
ment of a learned single judge of Punjab & Haryana High Court in
Criminal Revision No. 245 of 1992. By the impugned judgment, the High
Court has upheld the conviction and sentence against the two appellants
under Section 409 of the Indian Penal Code for having committed criminal
F breach of trust in respect of 4300 litres of diesel oil.

The prosecution case in nutshell is that both the accused persons
were posted in ·the office of Government Heat Treatment· Centre at
Bahadurgarh and on 23.2.82, they were authorised to bring 10,000 litres of
G light diesel oil from the Indian Oil Corporation, Delhi. For that purpose
the letter of authority as well as the bank draft to the tune of Rs.28,275.83
were given to them. The said two accused persons deposited the bank draft
with Indian Oil Corporation and took delivery of 10,000 litres of light diesel
oil but ultimately the quantity of diesel was found to be less by 4300 litres, +
the value of which was Rs.12,160/-. It is the prosecution case that both the
H accused persons committed the embezzlement of oil in question. The
JIWAN DASSv. STATE [PATTANAIK,J.] 925

prosecution examined as many as eight witnesses to establish the case A
against the accused persons. The accused persons also examined two
defence witnesses. The learned Sub Divisional Judicial Magistrate, who
tried this case by hiSjudgment dated 25.7.91 came to hold that the prosecu-
tion has been able to establish the charges beyond reasonable doubt against
both the accused persons and accordingly convicted them under Section
409 IPC and sentenced them to undergo rigorous imprisonment for three
B
years and imposed a fine of Rs.3000/-, in default to further undergo
imprisonment for three months. The accused· persons preferred appeal
before the Sessions Judge and the learned S<>Ssions Judge affirmed the
conviction and sentence passed by the learned Magistrate and dismissed
the appeal. The matter was then carried ti:J High Court in revision and the c
High Court by the impugned Judgment having dismissed the said revision,
the present appeals have been preferred.

Mr. R.K. Jain, the learned Senior Counsel, appearing for accused
Jiwan Dass, appellant in Criminal Appeal No. 990 of 1995, contended that D
the bank draft in question which was handed over to accused Jiwan Dass
having been duly deposited with the Indian Oil Corporation and thereafter
the diesel in question having been entrusted to accused Mittar Pal Yadav,
and there being no entrustment of the said diesel to accused Jiwan Dass,
which is the gravamen of the charge in the present case, the courts below
committed error in convicting accused Jeewan Dass under Section 409 IPC. E
Mr. Jain also further contended that J eewan Dass being a senior officer
had been sent with the bank draft as the amount was a heavy amount. Any
dereliction on his part in not himself taking delivery of the diesel but the
diesel having been entrusted to .accused Mittar Pal Y adav, Jiwan Dass
might have been negligent in discharging official duty but that would not F
tantamount to commission of offence under Section 409 IPC and, there-
fore, the conviction and sentence passed against Jiwan Dass is liable to be
set aside.

Mr. Ranbir Y adav, the learned counsel, appearing for Mittar Pal G
Yadav, on the other hand submitted that accused Mittar Pal Y adav was a
junior officer and he acted at the behest of accused Jiwan Dass and in-fact
signed the documents and the register without even verifying the contents
thereof and, therefore, offence if any, was committed by Jiwan Dass and
not by Mittar Pal Yadav. H
926 SUPREME COURT REPORTS (1999] 1 S.C.R.

A Mr. Ajay Siwach, the learned counsel, appearing for the State of
Haryana on the other hand contended that both the accused persons
having been sent with the money with the direction to bring diesel and both
of them having proceeded, both of them are liable for the commission of
offence and the courts below, therefore, were justified in convicting them
under Section 409 IPC. The learned counsel also contended that Jiwan
B Dass being the person who was authorised to take delivery of diesel, cannot
be exonerated of his liability even factually, delivery was taken by Mittar
Pal Yadav inasmuch as in eye of law it must be held that entrustment was
to Jiwan Dass. The learned counsel further contended that even if it is held
that there has been no entrustment of diesel to Jiwan Dass but yet it must
C be held that Jiwan Dass held the dominion over the diesel and, therefore,
he has committed an offence under Section 409 IPC for shortage of the
diesel oil.

In view of the rival submissions, the question that arises for con-
D sideration is whether both the accused persons or any one of them com-
mitted the offence under Section 409 IPC. At the outset it must be stated ""
that there was no charge under Section 34 and both the accused persons
were charged under Section 409 IPC alone. To bring home a charge under
Section 409, what is necessary to be proved is that the accused is a public
servant and in such capacity he was entrusted with the property in question
E or with dominion over it and that he committed criminal breach of trust in
respect of it. The necessary elements constituted in the offence must be
strictly proved by the prosecution. It is true that prosecution need not
prove t_he actual mode of misappropriation and once entrustment of or
dominion over the property is established, then it would be for the accused
F to explain as to how the property was dealt with. In Exhibit PE, on the
basis of which the Police registered the case and started investigation it
was specifically mentioned that Jiwan Dass and Mittar Pal Yadav were
authorised to take 10,000 litres of light diesel oil from Indian Oil Corpora-
tion and a bank draft amounting to Rs.28,275.83 had been given to Jiwan
Dass, which draft he deposited. Thereafter they took delivery of 10,000
G litres of light diesel oil but on actual measurement it was found to be less
by 4300 litres. On an inquiry from Indian Oil Corporation, it was reported
that delivery of 10,000 litres of diesel had been given and in token thereof
Mittar Pal Yadav has put his signature. It was further stated in the said +
letter that Jiwan Dass on 2.3.82 gave a writing that he would make up the
H deficiency. On the basis of the aforesaid letter and after completion of
)
I

JIWANDASSv. STATE[PATIANAIK,J.] 927

investigation, the Police filed Challan and the Magistrate took cognizance A
and charge that was framed on 26.3.84 was to the following effect:

"That on 26.2.82 in the area of Bahadurgarh, you being a servant
in the employment of Govt. Heat Treatment Centre, Bahadurgarh,
as Superintendent and Store Keeper respectively and in such
capacity entrusted with a bank draft of Rs.28,275.83 for purchase B
of 10,000 litres of high diesel oil ·and you committed criminal
breach of trust in respect of 4300 litres of high diesel oil worth Rs.
12,158.60. and thereby committed an offence punishable under
Section 409 of the IPC which is within the cognizance of this court."
c
Thus the gravamen of the charge is commission of criminal breach
of trust in respect of 4300 litres of diesel oil. That the bank draft in question
was duly deposited with the office of the Indian Oil Corporation and there
is no dispute over the same. The question that arises for consideration,
therefore, is whether the diesel oil which was in fact found to be less by
4300 litres can be said to have been entrusted to Jiwan Dass or Jiwan Dass D
had any dominion over the same. Jt has been elicited from the evidence of
PW-1, Senior Technical Officer at Bahadurgarh that accused Mittar Pal
Yadav was authorised by the establishment to take delivery of oil from
Shakurbasti Depot of Indian Oil Corporation and his attested signatures
were in the office of the Indian Oil Corporation. The said witness in further E
cross examination also stated:

"I have sent accused Mittar Pal Yadav because his signatures
were there and he could take delivery."
.....
PW-4, the Depot Manager of the Indian Oil Corporation stated F
in his evidence:

"I have seen the cash memo Exhibit PB, which bc.ars my
signature which was given to Mittar Pal Yadav, who had signed in
my presence."
G
In view of the aforesaid positive evidence, both oral and documen-
tary, the conclusion is irresistible that delivery of diesel oil had been given
to accused Mittar Pal Yadav, who in token thereof, had signed not only on
the cash memo but also on the register itself. In the absence of any other
material produced by the prosecution it is difficult for us to hold that either H.
928 SUPREME COURT REPORTS (1999) 1 S.C.R.

A there was any entrustment of the diesel to accused Jiwan Dass or he had Cf'·

any dominion over the same.

Mr. Ajay Siwach, the learned counsel appearing for the State of
Haryana however very strenuously argued that Jiwan Dass ~ing a senior
officer and having been deputed with the bank draft for the purpose of
B taking delivery of the oil and the letter of authority being in favour of Jiwan
Dass, it must be held that the entrustment of diesel had been made to Jiwan
Dass or at least he had the dominion over the same. Mere fact that Jiwan
Dass had taken the bank draft and that an authorisation had been given in
his favoµr by his superior officers to ta,ke delivery of the diesel, cannot be
c the basis for coming to a conclusion that in fact the diesel had been
entrusted to said accused Jiwan Dass or he had dominion over the same.
When in point of fact it is established beyond reasonable doubt that
delivery ha:d been taken by accused Mittar Pal Y adav and in token of the
same he had signed the relevant papers and register, Jiwan Dass being a
D senior officer may be responsible for dereliction of his duty in not taking
delivery of the diesel himself. But on that score, it cannot be said that in
fact the prosecution has been able to establish that diesel had been
entrusted to Jiwan Dass and there has been shortage of the said diesel to
the tune of 4300 .litres. In our considered opinion the gravamen of the
charge being misappropriation of 4300 litres of diesel oil which was found
E to be in shortage while measuring the diesel that had been brought and the
said diesel ha1.ing been delivered to Mittar Pal Yadav, who had signed the
relevant documents in token thereof, the entrustment to or dominion over
the diesel byJiwan Dass has not been established and as such the prosecu-
tion has not been able to establish the charge under Section 409 IPC
F beyond reasonable doubt as against accused Jiwan Dass in respect of the
shortage of diesel to the tune of4300 litres. It is no doubt true that Jiwan
Dass appears to have given in writing on 2.3.82 that he would be completing
the quantity of 10,000 litres of oil but that writing neither can be held to
be a confession or admission of the guilt on the part of the accused Jiwan
G Dass, nor that can form the basis of convicting the accused Jiwan Dass for
an offence under Section 409 IPC. In a prosecution for offence of criminal
breach of trust if there is absence of legal and independent evidence with
regard to the entrustment, then it would be improper either to put a
question with regard to the entrustment to the accused and if put and an
H answer is obtained, partially admitting entrustment, the same does not
JIWAN DASS v. STATE [PATTANAIK, J.] 929

establish the case of entrustment. In the aforesaid premises and in view of A
our conclusion that the prosecution has failed to establish entrustment of
diesel to accused Jiwan Dass, the conviction of Jiwan Dass under Section
409 IPC cannot be sustained and we, accordingly set aside the conviction
and sentence against the accused Jiwan Dass and acquit him of the charge
levelled against and .Criminal Appeal No. 990 of 1995 is accordingly B
allowed and his bail bonds stand discharged.

So far as accused Mittar Pal Yadav is concerned, as has been
discussed earlier, there is conclusive oral and documentary evidence that
it is he, who took delivery of 10,000 litres of diesel from the Depot of Indian
Oil Cmporation and the said diesel on actual measurement being found to C
be in short, no explanation has been offered by him except telling that he
did so at the behest of the superior officer Jiwan Dass. In view of his
signature available on several documents, indicating the fact that he took
delivery of 10,000 litres of diesel, the explanation offered by the said
accused Mittar Pal Yadav that he had signed being told by Jiwan Dass
cannot be accepted and, therefore, the prosecution case about embezzle- D
ment of 4300 litres of diesel has been established beyond reasonable doubt
against accused Mittar Pal Yadav. We, therefore, do not find any justifica-
tion in interfering with the conviction and sentence passed against the
accused Mittar Pal Yadav and consequently, Criminal Appeal No. 991 of
1995 stands dismissed. His bail bonds also stand cancelled and he must E
surrender to serve the balance period of sentence.

v.s.s. Cr!. A. No. 990/95 allowed.
CrI. A. No. 991/95 dismissed.