GHANSHYAM Vs STATE OF RAJASTHAN
Bench: SUDHANSU JYOTI MUKHOPADHAYA,V. GOPALA GOWDA
Case number: Crl.A. No.-002085-002085 / 2013
Diary number: 27290 / 2009
Advocates: SARAD KUMAR SINGHANIA Vs
MILIND KUMAR
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NON-REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2085 OF 2013 (Arising out of SLP(Crl.) No. 8101 of 2009)
Ghanshyam .... Appellant Vs.
State of Rajasthan .... Respondent
J U D G M E N T
V.Gopala Gowda J.
Leave granted.
2. This appeal is filed by the appellant/accused
questioning the correctness of the judgment and
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final Order dated 04.02.2009 passed by the High
Court of Judicature at Rajasthan, Jaipur in S.B.
Criminal Misc. Petition No. 1067 of 2005 remanding
the matter back to the trial court for fresh
decision in the light of the statements of the
witnesses and also the material and evidence
available on record, urging various facts and
legal contentions in justification of his claim.
3. Necessary relevant facts are stated hereunder
to appreciate the case of the appellant/accused
and also to find out whether he is entitled for
the relief as prayed in this appeal.
At the time of filing of this appeal, there
were two respondents, respondent no.1 Ram Dayal –
the complainant and respondent no.2 – the State of
Rajasthan. Name of the complainant-Respondent no.1
has been deleted vide this Court’s order dated 13th
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September, 2010 as the appellant could not take
steps of service upon him.
The complainant alleged that on 1.10.1994, he
gave three gold chains weighing 6.5 tola to the
accused-appellant for making a new design chain
after melting the old chains. But according to the
complainant, neither the three old chains nor a
new gold chain were returned to him. On 2.11.1994,
the complainant sent a telegram asking the accused
appellant to return the gold chains. He further
sent a legal notice through his advocate to the
appellant on 6.5.1995 making allegation of taking
the gold chains and not returning the same. All
the allegations were denied by the appellant. The
complainant then filed a complaint under Section
156(3) of the Criminal Procedure Code (in short
‘CrPC’) for an offence under Section 406 of the
Indian Penal Code. Statements of witnesses were
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taken under Section 161, CrPC by the Additional
Chief Judicial Magistrate, Gangapur City. The
complainant further filed an application under
Section 190 of CrPC before the Additional
Metropolitan Magistrate bringing to his notice the
commission of the alleged offence. Investigation
was conducted by the SHO, PS Gangapur City,
District Sawai Madhopur and report was submitted
by him who concluded that the FIR was false and
the case was without merit. The complainant filed
a protest petition against the said report. The
Additional Chief Judicial Magistrate, while
considering the protest petition, confirmed the
negative report. The complainant challenged the
said Order of the Additional Chief Judicial
Magistrate before the Additional Sessions Judge by
filing a protest petition. The Court of Additional
Sessions Judge set aside the Order of the
Additional Chief Judicial Magistrate and sent the
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matter back to the Additional Metropolitan
Magistrate to rehear the matter after considering
the documents on record. The Additional
Metropolitan Magistrate considered the entire
evidence on record and came to the conclusion that
no case was made out and the protest petition
filed by the complainant deserved to be dismissed.
4. The complainant being aggrieved by the Order
of the Additional Metropolitan Magistrate
preferred a criminal revision before the Court of
learned Additional Sessions Judge which upheld the
Order passed by the Additional Metropolitan
Magistrate. The complainant, therefore, preferred
a petition under Section 482 of CrPC challenging
the Order of the learned Additional Sessions
Judge. The Hon’ble High Court exercised its
inherent jurisdiction to set aside the findings of
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the courts below and allowed the petition of the
complainant.
5. The High Court, vide its judgment dated
4.2.2009, held that the statement recorded by the
ACJM clearly reveals that the complainant handed
over three gold chains to the accused-appellant at
the time of purchase of cloth by the appellant
from the complainant’s shop but the same were not
returned. Therefore, according to the High Court,
a prima facie case of criminal breach of trust was
clearly made against the accused-appellant. The
trial Court erred in observing that no entry could
have been made by the complainant in his record
book simultaneously when the clothes were
purchased by the accused appellant from the
complainant’s shop. The High Court further held
that trial court erred in proceeding on any
presumption when the evidence available on record
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proved otherwise and there was admission by the
accused. In such cases, the burden was on the
accused to have rebutted the allegation against
him. Therefore, the High Court remanded the matter
back to the trial court for fresh decision in the
light of the statements of the witnesses and
evidence on record.
6. In the light of the facts and circumstances
presented before us on the basis of evidence on
record, and also based on the contentions raised
by the learned senior counsel on behalf of both
the parties, we are inclined to frame the
following issue to be answered by us:
1.Whether the High Court was justified
in remanding the matter back to trial
court for consideration on merit
against the concurrent findings of the
courts below?
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7. It is to be noted here that the case made
against the accused in this case is that of
criminal breach of trust. Criminal breach of trust
is provided under Section 405 of Indian Penal Code
which reads as:
“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 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”.
The punishment for Criminal breach of trust is
provided under Sections 406-409 of IPC.
8. It has been held in the case of Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr.1
that in the commission of the offence of criminal 1 (2008) 2 SCC 561
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breach of trust, two distinct parts are involved.
The first consists of the creation of an
obligation in relation to the property over which
dominion or control is acquired by the accused.
The second is a misappropriation or dealing with
the property dishonestly and contrary to the terms
of the obligation created.
9. Further, it has been held in the case of
Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay2 that:
“To 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,
2 AIR 1960 SC 889
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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 which is untrue, an inference of misappropriation with dishonest intent may readily be made., 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 which is untrue, an inference of
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misappropriation with dishonest intent may readily be made., 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 which is untrue, an inference of misappropriation with dishonest intent may readily be made.”
(emphasis laid by this Court)
10. In the light of the above legal principle laid
down by this Court, the High Court was correct in
holding that presumptions have been made by the
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trial court where it was not necessary in fact
situation at hand. The decision reached by the
trial court is not sustainable in law and is
liable to be quashed. We concur with the decision
of the High Court holding that it was correct in
redirecting the matter to the trial court for
adjudication on merit.
11. For the reasons stated supra, the appeal is
dismissed. The stay granted by this Court vide
order dated 30th October, 2009 stands vacated.
……………………………………………………………………J. [SUDHANSU JYOTI MUKHOPADHAYA]
……………………………………………………………………J. [V. GOPALA GOWDA]
New Delhi, December 12, 2013
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