TaxTMI 
TaxTMI 
1991 (4) TMI 468
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.... in each of the cases. 2. The material facts as unfolded from the records can be stated thus: There was a Block Development Office in the district of Sultanpur known as Dhanpatganj Block to which a seed store known as Semrauna seed store was attached. The seed store was to cater the needs and requirements of the cultivators for seeds and fertilisers etc. During 1964-65, the first appellant was incharge of that seed store. On 2.9.65, he was relieved by the second appellant on transfer from Kurebhar. 3. According to the prosecution, the first appellant in his official capacity was entrusted with fertilisers, pesticides, seeds etc. which were meant to cater the needs of the cultivators within Semrauna area. In 1965, there were several village level workers. It is said that on 29.7.65, the first appellant prepared forged bills in the names of some village level workers (hereinafter referred to as VLWs) bearing bill Nos. 57, 59, 60, 61, 62 and 64 of book No. 7767 as if the VLWs were supplied with articles of Agricultural Department on credit, the total amount of which being Rs. 1591.04 and thereby committed breach of trust, punishable under Section 409 I.P.C. The indictme....
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....the appellants but no fertiliser was issued to them. There is no infirmity in the statements of these witnesses. Their statements satisfactorily make out an offence under Section 409 I.P.C. against two appellants in both the cases.... I am, therefore, of the opinion that the conviction of the two appellants ordered by the Trial Court under Section 409 I.P.C. is justified. 7. By these two appeals, the appellants challenge the correctness of their conviction. Mr. R.K. Garg, the learned senior counsel appearing on behalf of the appellants contended, inter alia, stating that though the Government had instructed that credit sales from the seed stores be discontinued, yet the long established practice was continued and in fact the Government was also well aware of this position and that it was the reason why as late as 2.8.67, the Government had been repeatedly issuing circulars inviting the attention of the employees concerned to stop the practice of credit sales and warning that any official or officer issuing will be held responsible to pay the outstanding amount and, therefore, in such circumstances there could not be any case of misappropriation in any form since from the very be....
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....rrent' dues, it has been observed that the seed store dues are mounting year to year it goes to mean that the commodities purchased from 95-Capital outlay are still sold and credit otherwise the dues should not increase in this office circular letter No. IA-7250/Dues-129 dated 21.10.1964 and circular No. 4934/Dues 29.7.1965 it was made clear that the practice of credit sales should be stopped and on your visits to seed stores you should see that there was no credit sales and take suitable action against official and officer responsible for such sales. It appears that these instructions have not been followed vigorously. Government has taken serious exception to the practice of credit sales despite their orders stopping this practice. It is therefore, impressed again that credit sales of articles from the Government Agricultural seed stores is strictly prohibited and any official or officer issuing stores or authority sign their issue on credit be held personally responsible to pay the outstanding amount. At the time of handing over charge, all credit sales be a seed store Incharge should be treated as shortage and recovery effected from him. Suitable action including a....
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....upervisory Officer concerned. All inspecting officers on visits to seed stores and buffer godown and other institutions should examine the store ledgers and bill books to ensure that no credit sales have been made and in case some such sales have been made take action as indicated above. 4. It may please be kept in view that the receipts and recoveries under the head 95 Capital outlay should equal to the expenditure incurred thereunder. In case the receipts and recoveries fall short in comparison to the expenditure, the future allotments of funds will be reduced accordingly and the drawing and disbursing officer responsible for drawing funds from 95 capital outlay called upon to explain the irregularity and short fall in recovery. 5. The above instructions should be brought to the notice of all concerned under a registered cover for strict compliance and the quarterly report for the quarter ending June 1968 submitted by 15.8.68. Please acknowledge receipt of this letter. Sd/- R.R. Agarwal, Director 14. The copy of the above circular was forwarded to all Functional Deputy Directors of Agriculture and Horticulture and Jute Deve....
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.... " 62 155.26 " " 64 125.50 " " 1591.04 17. Thus, the total amount alleged to have been misappropriated by the appellants under the first charge is Rs. 1591.04. This amount admittedly have been deposited by the first appellant, NPN Singh. The Trial Court in its judgment in Sessions Trial No. A-210 of 1974 has pointed out in more than one place about the repayment of the amount by deposit by the first appellant towards the six bills in question based on the evidence of Add. DAO (Ag.) examined as PW-5 as follows: He conceded that the money of these six bills in question; 57, 59, 60, 61, 62 and 64 has been deposited before the C.I.D. Investigation commenced. 18. In yet another portion of the judgment, it is stated thus: In this case, no bill is outstanding as all payments were made before investigation by the C.I.D. ....
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....for holding that these bills were bogus, was the absence of the signature of any of the VLWs in any of the bills. The first appellant has attempted to show that the practice of credit sale to the VLWs was in prevalence and the amount subsequently recovered from the cultivators would be adjusted. The appellants under the first charge are indicted with an offence of criminal breach of trust under Section 409 I.P.C. Section 405 defines 'criminal breach of trust'. The essential ingredients of Section 405 are: (1) The accused must be entrusted with property or dominion over property: (2) The person so entrusted must use that property or (b) dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. 23. Vide Om Prakash Gupta v. State of U.P and C.M. Narayan v. State of Travancore-Cochin. We do not like to swell this judgment by citing all the decisions on this aspect. 24. In the present case, the entrustment or dominion over th....
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....was forged by the appellants. 26. ...No such using of any forged documents was done by the appellants their conviction under Section 467 and 471, I.P.C. is not justified", the prosecution case of forging the bills and receipts and using them as genuine, is to be held to have been found to be 'not true'. As stated supra, the State has also not filed any appeal against the order of acquittal under charges 467 and 471 I.P.C. It necessarily follows that the explanation given in defence of the appellants that the six bills in question and cash receipts were not bogus but genuine has been accepted by the High Court. Under these circumstances, the prosecution cannot be said to have satisfactorily proved even the temporary misappropriation of the amount in dispute. In fact, before the Trial Court, it was contended that there has not been any dishonest misappropriation of the property entrusted to the appellant, but that contention was repelled by the Trial Court for the reasons shown in its judgment which reasons, in our considered opinion, are not convincing in view of the peculiar facts and circumstances of this case. The High Court has not at all discussed the legal question ....
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....the case under Section 409 I.P.C., and that the said amount of Rs. 480.26 was misappropriated by the first appellant and that when the matter came up to light, he started making payments by paying Rs. 76 on 14.4.66 and Rs. 27.60 on 7.8.66 towards bill No. 11, and left an outstanding amount of Rs. 376.66 and that thereafter no payment was payment and the recoveries were made later on 2.12.69. It is further stated that the second appellant after taking charge from the first appellant on 2.9.65 made the entries of payments said to have been made on 14.4.66 and 7.8.66. The second appellant had admitted that he received the payment towards bill No. 11 and deposited the same amount in Government treasury and that as he did not oblige the CID Inspector by making statement as per his choice , he is roped into this criminal offence. The first appellant states in his defence that the 'gram sewaks' (i.e. VLWs) concerned made only part payment and the balance of Rs. 376.58 was realized from his salary on 1.12.69 and the said amount was deposited in the State Bank of India, Faizabad on 2.12.69 under challan No. 99. The Trial Court has convicted the second appellant on the ground that th....