Pattanaik, J. - (1.) Both these appeals are directed against the judgment of a learned single Judge of Punjab and 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 breach of trust in respect of 4300 litres of diesel oil.
(2.) The prosecution case in nutshell is that both the accused persons were posted in the office of Government Heat Treatment Centre at Baha-durgarh and on 23-2-1982, they were authorised to bring 10,000 litres of 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 accused persons committed the embezzlement of oil in question. The prosecution examined as many as eight witnesses to establish the case against the accused persons. The accused persons also examined two defence witnesses. The learned Sub-Divisional Judicial Magistrate, who tried this case by his judgment dated 25-7-1991 came to hold that the prosecution has been able to establish the charges beyond reasonable doubt against both the accused persons and accordingly convicted them under Section 409, I.P.C. and sentenced them to undergo rigorous imprisonment for three 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 Sessions Judge affirmed the conviction and sentence passed by the learned Magistrate and dismissed the appeal. The matter was then carried to High Court in revision and the High Court by the impugned judgment having dismissed the said revision, the present appeals have been preferred.
(3.) Mr. R.K. Jain, the learned Senior Counsel, appearing for accused Jiwan Dass, appellant in Criminal Appeal No. 990 of 1995, contended that 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, I.P.C. Mr. Jain also further contended that Jeewan 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- Mittal Pal Yadav, Jiwan Dass might have been negligent in discharging official duty but that would not tantamount to commission of offence under Section 409, I.P.C. and, therefore, the conviction and sentence passed against Jiwan Dass is liable to be set aside.;