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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.       1159               OF     2012   (Arising out of SLP (Crl.) No. 7526 of 2011

Sadhupati Nageswara Rao         .... Appellant(s)

Versus

State of Andhra Pradesh                        .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Leave granted.

2) This appeal is filed against the impugned order dated  

08.04.2011 passed by the High Court of Judicature, Andhra  

Pradesh at Hyderabad in Criminal Revision Case No. 295 of  

2005 whereby the High Court dismissed the Revision filed by  

the appellant herein and confirmed the conviction and  

sentence imposed upon him under Section 409 of the Indian  

Penal Code, 1860 (hereinafter referred to as “IPC”) by the trial  

Court.

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3) Brief facts:

(a) The appellant was the Fair Price Shop dealer of  

Stuartpuram village and also in-charge dealer of Fair Price  

Shop at Chinabethapudi.  He was entrusted with the task of  

distribution of rice at free of cost under “Food For Work  

Scheme”  (FFWS) to the workers on production of coupons, to  

maintain proper accounts and to handover the said coupons to  

the Mandal Revenue Office to that effect.   

(b) During the 17th Janma Bhoomi programme, on  

03.06.2002, one Nadendla Jakraiah filed a complaint against  

the appellant to the Mandal Revenue Officer (MRO), Bapatla  

regarding the irregularities committed in the distribution of  

essential commodities to the public and requested to take  

necessary action in the matter.  The MRO, Bapatla forwarded  

the said complaint to the Deputy Tahsildar of Civil Supplies,  

Bapatla to inspect the fair price shop of the appellant and to  

take necessary action.   

(c) On 25.07.2002, the Deputy Tahsildar along with other  

Revenue officials visited the Fair Price Shop of the appellant at  

Chinabethapudi and also at Stuartpuram Village.  On  

inspection of the Fair Price Shop at Chinabethapudi, the  

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Revenue officials found the goods/stocks lying therein tallied  

with the records/Stock Register.  In the similar manner, when  

the fair price shop at Stuartpuram was inspected, the Revenue  

officials could not find the records/Stock Registers, pursuant  

to the same, they made inventory of the goods lying in the shop  

and seized the same.  According to the appellant, in the  

evening, he went to the Mandal Revenue Office along with the  

records/registers and coupons but the revenue officials  

refused to look into the same and informed him that action  

had been initiated against him.  Thereafter, the appellant sent  

a FAX/Telegram to the Joint Collector, Mandal Revenue Office.  

(d) On 27.07.2002, the Revenue Officials (Civil Supplies)  

visited his Fair Price Shop at Chinabethapudi and took  

inventory of the stock in the shop and asked the appellant to  

sign the papers which were already prepared by them.   

(e) On 31.07.2002, the MRO lodged a complaint with the  

S.H.O., P.S. Vedullapalli which was registered as FIR in Crime  

No. 22 of 2002 under Sections 409 and 420 of IPC.  After  

investigation, the police arrested the appellant on 30.09.2002.  

(f) After considering the evidence, the II Addl. Jr. Civil  

Judge-cum-Judicial First Class Magistrate, Bapatla, by  

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judgment dated 22.05.2004 in C.C. No. 7/2003, found the  

appellant guilty for the offence punishable under Section 409  

IPC and not guilty under Section 420 IPC and, accordingly,  

convicted and sentenced him to suffer simple imprisonment for  

6 months and also to pay a fine of Rs.1,000/-, in default, to  

further undergo simple imprisonment for 1 month.      

(g) Aggrieved by the said judgment, the appellant preferred  

an appeal being Criminal Appeal No. 210 of 2004 before the Ist  

Addl. Sessions Judge, Guntur.  The Sessions Judge, by order  

dated 08.02.2005, dismissed his appeal and confirmed the  

order passed by the IInd Addl. Jr. Civil Judge-cum-Judicial  

First Class Magistrate dated 22.05.2004.

(h) Against the said order, the appellant filed Criminal  

Revision No. 295 of 2005 before the High Court of Andhra  

Pradesh.  By impugned order dated 08.04.2011, the High  

Court dismissed the Revision filed by the appellant and  

confirmed the judgment passed by the Addl. Sessions Judge,  

Guntur.   

(i) Challenging the said order of the High Court, the  

appellant has preferred this appeal by way of special leave  

before this Court.   

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4) Heard Mr. V. Giri, learned senior counsel for the  

appellant and Mr. Mayur Shah, learned counsel for the  

respondent-State.

5) Mr. V. Giri, learned senior counsel for the appellant, after  

taking us through the necessary ingredients of Section 409 of  

IPC and the evidence led in, submitted that there was no  

acceptable material to establish that the appellant dishonestly  

misappropriated the foodgrain which was meant for workers  

under FFWS.  He also pointed out that the prosecution failed  

to prove the fraudulent dishonest intention on the part of the  

appellant.  He finally submitted that inasmuch as the  

prosecution witnesses being Nos. 2, 3, 4 and 6 are official  

witnesses and not independent witnesses, their evidence  

without corroboration with the independent witness, casts a  

reasonable doubt on the veracity of the prosecution allegation.  

6) On the other hand, Mr. Mayur Shah, learned counsel for  

the State, after taking us through the entire materials placed  

by the prosecution and reasonings of the Courts below,  

pleaded for confirmation of the conviction and sentence  

imposed on the appellant.   

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7) In order to appreciate the above contentions, it is useful  

to refer the definition and punishment of criminal breach of  

trust and related provision provided under Sections 405, 406  

and 409 IPC which read as under:-

“405. Criminal breach of trust.- 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 willfully suffers any other  person so to do, commits “criminal breach of trust”.

406. Punishment for criminal breach of trust.- Whoever  commits criminal breach of trust shall be punished with  imprisonment of either description for a term which may  extend to three years, or with fine, or with both.  

409. Criminal breach of trust by public servant, or by  banker, merchant or agent.- Whoever, being in any manner  entrusted with property, or with any dominion over property  in his capacity of a public servant or in the way of his  business as a banker, merchant, factor, broker, attorney or  agent, commits criminal breach of trust in respect of that  property, shall be punished with imprisonment for life, or  with imprisonment of either description for a term which  may extend to ten years, and shall also be liable to fine.”     

In order to prove the offence of criminal breach of trust which  

attracts the provision of Section 409 IPC, the prosecution must  

prove that one who is, in any manner, entrusted with the  

property, in this case as a dealer of fair price shop, dishonestly  

misappropriates the property, commits criminal breach of  

trust in respect of that property.  In other words, in order to  

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sustain conviction under Section 409 IPC, two ingredients are  

to be proved: namely, i) the accused, a public servant or a  

banker or agent was entrusted with the property of which he is  

duty bound to account for; and ii) the accused has committed  

criminal breach of trust.  What amounts to criminal breach of  

trust is provided under Section 405 IPC.  The basic  

requirement to bring home the accusations under Section 405  

are the requirements to prove conjointly i) entrustment and ii)  

whether the accused was actuated by dishonest intention or  

not, misappropriated it or converted it to his own use to the  

detriment of the persons who entrusted it.  

8) In the light of the above broad principles, let us examine  

the materials relied on by the prosecution.  To prove the above  

offence, the prosecution examined PWs 1-6, viz., Mandal  

Revenue Officer (PW-1), Deputy Tahsildar (Civil Supplies) (PW-

2), Revenue Inspector (PW-3), Village Secretary (PW-4).   In  

order to prove the offence of criminal breach of trust, the  

prosecution must prove that the accused was, in any manner,  

entrusted with the property of the Government.  In addition to  

the official witnesses, viz., PWs 1-4, the prosecution also  

examined Nadendla Jakraiah (PW-5), who worked as an  

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Attender in Cooperative Society, Bethapudi and the beneficiary  

along with the appellant. In his examination, he deposed that  

he purchased the essential commodities from the Fair Price  

Shop of the appellant even without having a ration card.  He  

was the person who gave a report to the MRO, PW-1 under  

Exh. P1.  He also admitted that he had no ration card at all.  It  

is true that at a later point of time though PW-5 turned hostile,  

in his cross examination, he admitted that in Exh. P1 he  

mentioned that the appellant accused was not distributing  

essential commodities properly to the beneficiaries.  The  

Magistrate has rightly observed that how is it possible that PW-

5 was receiving essential commodities from the shop of the  

accused without having a ration card.  

9) Though PWs 2 to 4 are Government Officials, PW-5 is the  

beneficiary of the fair price shop of the accused and PW-6 is  

the I.O.  All of them stated that the accused was running Fair  

Price Shop at Stuartpuram and also in-charge of Fair Price  

Shop at Chinabethapudi. As per the orders of PW-1, on  

25.07.2002, PWs 2 and 3, along with PW-4 and some others,  

carried out an inspection over the Fair Price Shops of the  

appellant-accused at Chinabethapudi and Stuartpuram and  

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submitted a Report.  PW-3 stated that the appellant-accused  

disposed of 67.65 quintals of rice in black market intended for  

FFWS.  According to these witnesses, the value of foodgrain  

was around Rs. 84,562/-.  On the same day, i.e., on  

25.07.2002, PW-2 recorded the statement of the appellant-

accused under Exh. P-7 wherein nowhere he denied the  

contents of the said statement.  It is also clear from the  

prosecution evidence that the appellant was not in a position  

to show the correct details, particularly, the handing over of  

rice to the beneficiaries by securing coupons/vouchers from  

them.  Though it was stated by the appellant that all those  

coupons/vouchers were with his father, it was demonstrated  

that his father failed to turn up even after twelve noon on  

25.07.2002.  There is no dispute that the appellant was  

entrusted with 13.8 quintals of rice, 387 litres of kerosene in  

respect of Chinabethapudi Fair Price Shop in the month of  

June, 2002 and he was also entrusted with 6.88 quintals of  

rice and 213 litres of kerosene in respect of Stuartpuram Fair  

Price Shop.  It is also clear from the evidence led in by the  

prosecution that the appellant had failed to submit the  

coupons for the deficiency found by the inspecting officers.  

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Though the appellant has pleaded that in the same evening, he  

went and met the officers concerned along with the coupons, it  

has come on record that those coupons does not belong to the  

persons alleged to the above mentioned Fair Price Shop.  The  

materials placed by the prosecution show that the appellant-

accused had dishonest intention not to distribute the rice  

properly to the beneficiaries and an offence of criminal breach  

of trust could be made out.  As observed earlier, the coupons  

filed by the appellant-accused belong to Ramnagar and not to  

Stuartpuram village.  The fact remains that on the date of  

inspection, the rice was disbursed without proper coupons.  

10) The trial Court, after considering all the materials, came  

to the conclusion that the evidence of PWs 1 to 6 is reliable  

and trustworthy in relation to the offence in proving  

entrustment of property of the Government to the accused.  

In the case on hand, the appellant, an agent entrusted with  

the distribution of rice under the “Food for Work Scheme”  

(FFWS) to the workers on production of coupons, was charged  

with misappropriation of 67.65 quintals of rice.  The evidence  

also proves that there was entrustment of property to the  

accused.  All these aspects have been rightly considered by the  

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trial Court and found the appellant guilty of the offence  

punishable under Section 409 IPC.  The appellate and  

revisional court, on appreciation of the materials placed by the  

prosecution and defence, confirmed the same.  We are in entire  

agreement with the said conclusion.  

11) Mr. Giri, learned senior counsel for the appellant  

submitted that inasmuch as the alleged occurrence took place  

in 2002, some leniency may be shown on the sentence  

imposed.  We are unable to accept the said contention.  

Section 409 enables the Court to award imprisonment for life  

or imprisonment up to ten years alongwith fine.  Considering  

the fact that the appellant was awarded imprisonment for 6  

months alongwith a fine of Rs. 1,000/- only, we feel that the  

same is not excessive.  On the other hand, we are of the view  

that persons dealing with the property of the Government and  

entrusted with the task of distribution under FFWS, it is but  

proper on their part to maintain true accounts, handover  

coupons to the Mandal Revenue Office and to execute the same  

fully and without any lapse.  Such recourse has not been  

followed by the appellant.  The courts cannot take lenient view  

in awarding sentence on the ground of sympathy or delay,  

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particularly, if it relates to distribution of essential  

commodities under any Scheme of the Government intended to  

benefit the public at large.  Accordingly, while rejecting the  

request of the learned senior counsel for the appellant, we hold  

that there is no ground for reduction of sentence.  

12) Under these circumstances, we find no merit in the  

appeal.  Consequently, the same is dismissed.  In view of the  

dismissal of the appeal, the order granting exemption from  

surrender is revoked and the appellant has to surrender within  

four weeks and serve out the remaining period of sentence.  

...…………….…………………………J.            (P. SATHASIVAM)                                  

..…....…………………………………J.    (RANJAN GOGOI)  

NEW DELHI; AUGUST 03, 2012.  

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