Decided on August 08,1988



L.Rath, J. - (1.) The petitioner, who was a purchaser-cum-Miller-cum-Storage Agent -(for short agent) under the State Government for, the kharif year 1971-72 having been convicted under Section 409 IPC for misappropriation of 3374.55 quintals of rice and sentenced to R.I. for two years and a fine of Rs. 2,000/- also confirmed in appeal, has preferred this revision. The appointment of the petitioner as agent was under agreement, Ext. 8, under which he had a twofold responsibility of procuring pandy on behalf of Government and to supply rice converting the delivered stock of pandy received from non-miller purchasing agents, at the rate of 65%. Originally the complaint was, lodged against the petitioner by the C.S.O., Kalahandi that during the period in question the petitioner had procured pandy and had also been delivered 4886 quintals of pandy, known as delivered stock, for which he was to deliver 3374.55 quintals of rice, But he had failed to supply rice against the delivered stock as also the procured pandy. However, charge-sheet was submitted and charge was framed only for non-supply of the delivered stock of rice.
(2.) The conviction of the petitioner is assailed by Mr. Mohanty, learned counsel for the petitioner, urging: L. That even accepting the entire case of the prosecution, no criminal liability can be fastened to the petitioner and that the liability, if any, is only of a civil nature; . There was never any criminal misappropriation since as an agent the petitioner was to hold the pandy until direction was given for despatch of the same to any destination and no such direction having been issued there could not be any misappropriation;
(3.) The fact of misappropriation has never been proved, inasmuch as there was no physical verification of the stock by the Magistrate who had been sent for the purpose; and 1. No conviction under Section 409 IPC can be made since a dishonest, misappropriation by the petitioner has never been proved and that mere absence of stock would not necessarily land to the conclusion of a criminal breach of trust. 3. I wish to consider the first point at the last arid take up the other points raised first. An offence of criminal breach of trust necessarily involves the facts of (a) entrustment of the property; and (b) a dishonest misappropriation or conversion of the property by the agent to his own use; or (c) dishonest use or disposal of the property in violation of mandate of the law prescribing the mode in which the entrustment is to be discharged; or (d) dishonest use or disposal of the property in violation of the terms of any legal contract either express or implied regarding the discharge of the entrustment or wilfully allowing some other person to do so. To establish a charge under the section, the fact of entrustment of the property as well as any or more of the other alternative as aforesaid have to be established by the prosecution, the gist being a dishonest intention on the part of the agent. The burden of proving such dishonest intention is on the prosecution though however it being often difficult to get any direct evidence of intention, it may be justifiably inferred from the attending circumstances, the conduct of the accused and a false explanation given by him may also be an Additional factor against him to be taken into consideration. If entrustment is proved and the accused falls to account for the property when he is accountable or is not able to offer an acceptable explanation for the loss the onus to establish which is upon him, or offers a false explanation, a criminal intention, may readily be inferred. It must however be kept in mind that mere suspicion cannot take the place of proof and that as long as the accused has offered a plallsible explanation which in the background of the circumstances appears to be better probable, then he has discharged the onus upon him, the preponderance of probability being that his explanation right be true. Once the explanation of the accused appears to be so possible, the prosecution cannot be said to have established the case beyond all reasonable doubt since the accused has succeeded in raising a doubt through his explanation. When such is the case, there is no offence under Section 409 IPC even if entrustment is proved since in the absence of intention of conversion by the accused, a mere facture to account for the property would not be criminal breach of trust even though it might be otherwise a breach of trust. It is therefore for the prosecution to prove the explanation as false, if at all.;

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