BHAGABAN MOHANTY Vs. SUDARSAN NAIK
LAWS(ORI)-1973-11-28
HIGH COURT OF ORISSA
Decided on November 16,1973

Bhagaban Mohanty Appellant
VERSUS
Sudarsan Naik Respondents

JUDGEMENT

G.K. Misra, C.J. - (1.) THE Petitioner has been convicted under Section 409, Indian Penal Code and sentenced to R.I. for two years and to pay a fine of Rs. 1,000/ -, in default whereof to undergo R.I. for two months more. The Petitioner was the paid Secretary of Gobindapur Service Co -operative Society. Complainant. (p.w. 1) was the President thereof. Between the period 23 -8 -1967 and 9 -1 -1968 the Petitioner is alleged to have sold fertilizers on behalf of the society and realised money which he did not deposit in the Cash register. The accounts of the society were audited from 9 -1 -1968 to 16 -1 -1968 for the period from 1 -7 -1965 to 30 -6 -1967. The Petitioner is alleged to have misappropriated a sum of Rs. 6, 736. 87 P. The Petitioner 's plea is that he has not misappropriated any amount. Before the lower appellate Court two contentions were advanced : That the charge was irregular. The same was rejected and has not been pressed here. The main contention was on the merit and the learned Addl. Sessions Judge in a careful judgment has rejected this contention.
(2.) BEFORE me Mr. Murty contended that the Secretary of a co -operative society is not a public servant within the meaning of Section 21 of the Indian Penal Code and consequently a conviction under Section 409, Indian Penal Code is unsustainable. This contention was never urged in any of the Courts below and on that, simple ground is liable to be rejected. Even assuming that there is any merit in this contention, the Petitioner can be convicted under Section 406 of the Penal Code where the sentence may extend to three years imprisonment of either description, or with fine, or with both. If the Petitioner 's contention is rejected on merit, no ground is made out for reduction of sentence. It is, therefore, unnecessary to examine whether the Petitioner is liable to be convicted under Section 409 or Section 406. In either case, the sentence imposed is to be retained unless the Petitioner is acquitted. Coming to the merits of the matter, it is established beyond reasonable doubt that the Petitioner sold fertilizers on behalf of the society and did not deposit the sale proceeds to the tune of Rs. 6.736. 87 P. which he was under law duty -bound to account for. The statement of the Petitioner under Section 342, Code of Criminal Procedure is very evasive, more or less in the nature of a vague denial, though it was the duty of the Petitioner to account for the money once he admits that Rs. 6,136. 87 P. had been collected by him as sale proceeds of fertilizers. The matter is clinched by the admission of the Petitioner in Exts. 6, 7, 10, 11 and 20 wherein he acknowledged his liability and wanted time to make the payments. Therein he admitted that a portion of the amount collected, had been spent for his own purposes and some portion he had not realised from customers as he had advanced the same on credit. Assuming that the second part of the admission is true, the first part of the admission that some portion of the money he utilised for his own purposes, clearly establishes an offence within the meaning of Section 405, Indian Penal Code.
(3.) SECTION 405 runs thus: Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or will -fully suffers any other person so to do, commits "criminal breach of trust". The word "dishonestly" has been defined in Section 24 , Indian Penal Code as 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". "Wrongful gain" has been defined in Section 23 as a gain by unlawful means of property to which the person gaining is not legally entitled.;


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