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Anwar Chand Sab Nanadikar v. State Of Karnataka .
Factual and Procedural Background
The appellant, serving as a property clerk in the Court of the Judicial Magistrate, First Class, Chikodi, was alleged to have misappropriated court properties between 2 March 1979 and 6 June 1985 and to have sold them to four private individuals. He was charged under Section 409 of the Indian Penal Code (criminal breach of trust by a public servant), while the other four were charged under Section 411 IPC (receiving stolen property). All five accused were acquitted by the trial court on 4 July 1989 for lack of satisfactory evidence of entrustment and misappropriation.
The State of Karnataka appealed. The High Court, exercising power under Section 391 of the Code of Criminal Procedure to take additional evidence, affirmed the acquittal of Accused 2–5 but convicted the present appellant under Section 409 IPC and sentenced him to one year’s imprisonment.
The appellant then approached the Supreme Court by way of the present appeal challenging the High Court’s judgment.
Legal Issues Presented
- Whether the prosecution proved the essential elements of Section 409 IPC—entrustment of property to the appellant and dishonest misappropriation or conversion thereof.
- Whether the High Court was justified in overturning the trial court’s acquittal of the appellant on the strength of additional evidence recorded under Section 391 CrPC.
- Whether the precedent in Rabindra Kumar Dey v. State of Orissa barred conviction in the absence of direct proof beyond book entries.
Arguments of the Parties
Appellant's Arguments
- The evidence relied on by the prosecution was unreliable; both courts had discarded substantial portions of it.
- Mere entries in account books did not establish that the appellant was functioning as a property clerk or that entrustment existed.
- Relying on Rabindra Kumar Dey v. State of Orissa, counsel contended that entrustment alone, without proof of dishonest intention, cannot sustain a conviction under Section 409 IPC.
State's Arguments
- The High Court correctly found lapses in the trial court’s reasoning and properly appreciated the evidence of PW-5 (the Magistrate) and other witnesses that showed the appellant was the property clerk with custody and control of the missing articles.
- Documentary evidence, including Exhibit P-1 (property register), showed the appellant maintained and produced the articles until 6 June 1985, contradicting his claim that he ceased to be property clerk after 2 February 1980.
- The appellant’s inability to account for the missing items, coupled with circumstantial evidence, proved dishonest misappropriation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233; AIR 1977 SC 170 | Mere entrustment without proof of mens rea does not establish criminal breach of trust under Section 409 IPC. | The Court held the precedent inapplicable because, unlike in Rabindra Kumar, entrustment and dishonest intent were both proved, and no plausible explanation was offered by the appellant. |
| Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889 | Failure to account for entrusted property, when coupled with other circumstances, can justify an inference of dishonest misappropriation. | Cited with approval to support the inference of misappropriation where the appellant failed to render a truthful account of the missing articles. |
Court's Reasoning and Analysis
The Supreme Court examined whether the High Court correctly found entrustment and dishonest misappropriation:
- Entrustment proved: Evidence of PWs 1, 8 and 10 and the testimony of the Magistrate (PW 5) established that the appellant served as property clerk from 2 March 1979 to 6 June 1985 and had dominion over the missing articles (Articles 1–23). Exhibit P-1, the property register, bore his handwriting even after his leave period, refuting his claim that he ceased duties in February 1980.
- Dishonest misappropriation inferred: The appellant failed to produce or account for the articles when required. Applying the principle in Jaikrishnadas, the Court held that unexplained failure to account, combined with proven entrustment, justified an inference of dishonest intent.
- Precedent distinguished: The Court found Rabindra Kumar unhelpful to the defence because, unlike that case, mens rea and entrustment were conclusively established and the appellant offered no credible explanation.
- Section 391 CrPC evidence: The High Court’s decision to admit additional evidence was not challenged as improper and, in any event, strengthened the prosecution’s case.
Holding and Implications
Appeal Dismissed. The Supreme Court affirmed the High Court’s conviction of the appellant under Section 409 IPC and the sentence of one year’s imprisonment.
Implications: The decision reinforces that a public servant’s unexplained inability to account for entrusted property, when supported by documentary and testimonial evidence of custody, is sufficient to sustain a conviction for criminal breach of trust. No new legal doctrine was created, but the ruling underscores the accountability of court personnel entrusted with judicial property.
Arijit Pasayat, J.— The court of law is described as a temple of justice. Logically, the Presiding Officer is the “pujak” and members of staff are the “sewaks”. It is, therefore, a matter of grave concern when a “sewak” is alleged to have misappropriated funds of the temple.
2. The appellant who was the property clerk in the Court of Judicial Magistrate, First Class, Chikodi, allegedly misappropriated properties belonging to the court and sold them to four other persons who were acquitted by the trial court along with the present appellant. While the appellant stood charged for commission of offence punishable under Section 409 of the Indian Penal Code, 1860 (in short “IPC”) the rest four stood charged for commission of offence punishable under Section 411 IPC. The prosecution alleged that while the properties in question were under the domain of the appellant, he sold them to Accused 2 to 5 during the period 2-3-1979 to 6-6-1985 and, therefore, committed the offence as alleged. After charge was framed, all the five persons faced trial before the Principal Civil Judge and the Judicial Magistrate, First Class, Chikodi, who by the judgment dated 4-7-1989 held that all the accused persons were not guilty of the charges. He, inter alia, observed that the evidence was not satisfactory regarding entrustment and misappropriation.
3. The State of Karnataka preferred an appeal before the Karnataka High Court and the Division Bench by the impugned judgment held that no interference was called for in the case of the other four accused who were acquitted. So far as the present appellant is concerned, it was held that the accusations were established by the evidence on record. During the pendency of the appeal the Court felt that there were some aspects which were required to be gone into, and, therefore, by exercise of power under Section 391 of the Code of Criminal Procedure, 1973 (for short “the Code”) it directed certain materials to be brought on record by the trial court. That was done. After that by the impugned judgment, the High Court convicted the appellant for commission of offence under Section 409 IPC and sentenced him to undergo imprisonment for one year.
4. In support of the appeal, the learned counsel for the appellant submitted that the evidence was unreliable and both the trial court and the High Court did not place reliance on a major portion of the evidence. Further, the ingredients necessary to bring home accusations under Section 409 were not present. Strong reliance was placed by the appellant on the decision of this Court in Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, AIR 1977 SC 170 to contend that the High Court's judgment is not tenable. It was submitted that only entries in the books of accounts were made by the accused and there was nothing beyond that to show that the accused was acting as a property clerk. Additionally, it was submitted that as noticed by this Court in Rabindra Kumar Dey case (1976) 4 SCC 233, AIR 1977 SC 170 mere entrustment without anything else cannot establish accusations under Section 409 IPC.
5. Section 409 IPC deals with criminal breach of trust by a public servant, or by a banker, merchant or agent. In order to bring in application of the said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are:
(1) the accused, a public servant, or a banker or agent was entrusted with property of which he is duty-bound to account for; and
(2) the accused has committed criminal breach of trust.
6. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are:
(1) Entrusting any person with property, or with any dominion over property.
(2) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so as to do 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 trust.
7. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.
8. In response, the learned counsel for the State of Karnataka has submitted that the High Court analysing the evidence on record noticed fallacies in the conclusions arrived at by the trial court and, therefore, has rightly held the accused guilty. The evidence of the Magistrate who was examined as PW 5 clearly shows that the accused was acting as a property clerk and had custody as well as domain over the court's properties which included the articles with which the present case is concerned. The High Court has considered a similar stand. It was noticed that cogent and reliable evidence was adduced to show that the appellant was working as a property clerk from 2-3-1979 to 6-6-1985 and that he was entrusted with the court's properties and had domain over them including Articles 1 to 23.
9. It was the stand of the appellant that he did not work as a property clerk after 2-2-1980. Such a stand has rightly been rejected by the High Court in view of PW 1's evidence. It was noticed by the High Court that the properties register was Exhibit P-1. On 10-1-1980 the appellant proceeded on commuted leave for 25 days w.e.f 4-2-1980 to 28-2-1980 to avail leave travel concession. In the office order concerned there was no direction to the appellant to hand over the charge of properties in the court property room to a witness Harugon. When the appellant admitted that he had gone on leave from 4-2-1980 to 28-2-1980 and as rightly held by the High Court there is no material to show that after returning from leave the accused had not assumed office, this plea is clearly untenable because as a normal consequence after returning from leave the appellant is supposed to have taken over as property clerk. That apart, there was ample material to show that he was only maintaining Ext. P-1 register even thereafter till 6-6-1985 and producing before Court MOS, as and when required.
10. Essentially, the question is whether the analysis of the High Court in view of the evidence on record is sustainable. We find that the factual aspects have been highlighted by the prosecution to show that the accused was guilty. The decision in Rabindra case (1976) 4 SCC 233, AIR 1977 SC 170 is of no assistance to the accused-appellant because in that case there was no material to show any mens rea apart from the fact that the entrustment itself was not fully established. The accusations were not brought to the notice of the accused. Additionally, his explanation as offered was not examined at all. The factual scenario being different in the present case the conclusions arrived at in the decision sought to be relied on have no bearing so far as the present case is concerned, as the accusations have been fully established. The evidence of PWs 1, 8 and 10 conclusively establishes that the accused-appellant was in charge of the properties and he could not either produce those articles or properly account for them when he was asked to do so, as was obligated for him.
11. In Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889, 1960 Cri LJ 1250 it was held as follows: (AIR p. 891, para 4)
“[T]o establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.”
12. This case was considered in Rabindra Kumar case (1976) 4 SCC 233, AIR 1977 SC 170. It was held that the proposition cannot be doubted. But the question is whether the explanation is absolutely false. It is in that background, this Court held that the accusations were not established. In the present case, the position is totally different. No explanation, much less plausible has been given. The High Court is, therefore, right in setting aside the order of acquittal so far as the appellant is concerned. The appeal fails and is dismissed.
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