1983 JTR(SC) 7
1983 AIR(SC) 174 ; 1983 CriLR 136 ; 1983 1 Crimes(SC) 635 ; 1983 CrLJ 231 ; 2010 6 JKJ(SC) 143 ; 1983 1 Scale 3 ; 1983 1 SCC 215 ; 1983 SCC(Cri) 173 ; 1983 KHC 420
SUPREME COURT OF INDIA
R.S. PATHAK AND AMARENDRA NATH SEN, JJ.
Vishwa Nath, Appellant
Versus
State of J. and K., Respondent.
Criminal Appeal No. 429 of 1976, D/- 5-1-1983.
Advocates appeared
Mr. A. N. Mulla, Sr. Advocate, Mr. Sushil Kumar, Advocate with him, for Appellant; Mr. Altaf Ahmad, Advocate, for Respondent.
Act Referred :INDIAN PENAL CODE : S.409
(A) The relevant statutory provision invoked in this proceeding is Section 409 of the Indian Penal Code, which specifically addresses the offence of criminal breach of trust by a public servant, or by a banker, merchant or agent, in relation to property entrusted to him or in which he is interested. The section applies where the accused, being entrusted with property on account of his position as a public servant, dishonestly misappropriates or uses that property for any purpose other than those for which it was entrusted. The present case falls squarely within the ambit of this provision, as the accused, a public servant in the capacity of Head Constable and Naib-Courty, was entrusted with Government money that he failed to deposit and instead used for personal purposes, thereby attracting the provisions of Section 409, R. P. C.
(B) Key legal principles include the strict liability of a public servant in relation to entrusted property, the requirement of faithful performance of official duty, and the non-availability of defence that the misappropriated amount was refunded after detection. The refund of the amount does not absolve the accused of the offence, as the act of embezzlement is complete upon misappropriation with criminal intention.
Facts of the case:
The accused, while serving as Head Constable and Naib-Courty, was entrusted with Government money amounting to Rs. 619/- on 7th February, 1972. Instead of depositing the amount as required by law, the accused used it for personal purposes. The defalcation came to light later, and the accused subsequently deposited the amount through an intermediary. The lower courts found that the accused had intentionally misappropriated the Government money in violation of legal directions.
Findings of Court:
The Judicial Magistrate, the Sessions Judge, and the High Court all found that the accused had embezzled the Government money entrusted to him and had used it for personal use. The fact that the amount was refunded after the act of embezzlement was discovered was not considered a valid defence to negate the offence.
Issues:
Whether the accused, as a public servant entrusted with Government money, can be held liable under Section 409 of the Indian Penal Code for embezzlement even after the amount has been refunded following detection? Whether the refund of the amount operates as a valid defence to set aside the conviction?
Ratio Decidendi:
A public servant entrusted with Government money who dishonestly misappropriates or uses that money for personal purposes commits an offence under Section 409 of the Indian Penal Code. The subsequent refund of the misappropriated amount, after the offence has been discovered, does not absolve the accused of liability, as the act of embezzlement is complete at the time of misappropriation with criminal intent.
Result:
The appeal is dismissed and the conviction is upheld.
(A) The relevant statutory provision invoked in this proceeding is Section 409 of the Indian Penal Code, which specifically addresses the offence of criminal breach of trust by a public servant, or by a banker, merchant or agent, in relation to property entrusted to him or in which he is interested. The section applies where the accused, being entrusted with property on account of his position as a public servant, dishonestly misappropriates or uses that property for any purpose other than those for which it was entrusted. The present case falls squarely within the ambit of this provision, as the accused, a public servant in the capacity of Head Constable and Naib-Courty, was entrusted with Government money that he failed to deposit and instead used for personal purposes, thereby attracting the provisions of Section 409, R. P. C.
(B) Key legal principles include the strict liability of a public servant in relation to entrusted property, the requirement of faithful performance of official duty, and the non-availability of defence that the misappropriated amount was refunded after detection. The refund of the amount does not absolve the accused of the offence, as the act of embezzlement is complete upon misappropriation with criminal intention.
Facts of the case:
The accused, while serving as Head Constable and Naib-Courty, was entrusted with Government money amounting to Rs. 619/- on 7th February, 1972. Instead of depositing the amount as required by law, the accused used it for personal purposes. The defalcation came to light later, and the accused subsequently deposited the amount through an intermediary. The lower courts found that the accused had intentionally misappropriated the Government money in violation of legal directions.
Findings of Court:
The Judicial Magistrate, the Sessions Judge, and the High Court all found that the accused had embezzled the Government money entrusted to him and had used it for personal use. The fact that the amount was refunded after the act of embezzlement was discovered was not considered a valid defence to negate the offence.
Issues:
Whether the accused, as a public servant entrusted with Government money, can be held liable under Section 409 of the Indian Penal Code for embezzlement even after the amount has been refunded following detection? Whether the refund of the amount operates as a valid defence to set aside the conviction?
Ratio Decidendi:
A public servant entrusted with Government money who dishonestly misappropriates or uses that money for personal purposes commits an offence under Section 409 of the Indian Penal Code. The subsequent refund of the misappropriated amount, after the offence has been discovered, does not absolve the accused of liability, as the act of embezzlement is complete at the time of misappropriation with criminal intent.
Result:
The appeal is dismissed and the conviction is upheld.
A.N.Mulla, Altaf Ahmed, SUSHIL KUMAR
Judgment
AMARENDRA NATH SEN, J. :- The accused who happened to be a Head Constable was tried by the Judicial Magistrate First Class, Ram Nagar on a charge under Section 409, R. P. C. The Judicial Magistrate by his judgment dated 15th December, 1973 held that the charge against the accused had been established and he convicted the accused under Section 409, R. P. C. and sentenced him to undergo R. I. for a period of one year and to pay a fine of Rs. 500/-. Against the judgment and order of the Judicial Magistrate the accused filed an appeal in the Court of Sessions Judge, Udhampur. The Sessions Judge by his judgment and order dated 26th April, 1974 upheld the conviction and dismissed the appeal. The accused filed a revision application in the High Court of Jammu and Kashmir and the High Court by its judgment and order dated 28th November, 1974 dismissed the said petition. With Special Leave granted by this Court, the accused has filed this appeal.
2. The brief facts, which are not in dispute, are as follows : The accused, the appellant before us, was entrusted as incharge Courty Ramnagar on 7th February, 1972 with Government money of Rs. 619/-. As a public servant entrusted with Government money, the accused was required to deposit the amount forthwith in accordance with law. The accused did not deposit the money and had used the same for personal purposes. When it was later found out that there had been defalcation of the amount by the accused, he deposited this money through one Dharam Dutt, A. S. I. on 8th August, 1972. There was thus an embezzlement of the said amount entrusted to the accused by him.
3. The main defence taken by the accused at the trial was that as there had been a case of embezzlement in Udhampur he had been asked by one Anchal Singh not to send the money. Anchal Singh has been examined as a witness and had falsified the explanation given by the accused. The Judicial Magistrate and also the Sessions Judge have both carefully considered the facts and circumstances and have analysed the evidence on record. They have both come to the conclusion that there had been embezzlement of Government money by the accused who had used the Government money for his personal use. This finding has been accepted by the High Court.
4. Mr. Mulla, who was good enough to appear as amicus curiae on behalf of the appellant in this appeal before us, could not seriously dispute the findings of the lower Courts. He submitted before us that the accused had returned the money and the accused had also already served the term of imprisonment imposed on him. It is his submission that there had been no intention on the part of the accused to misappropriate any Government money but under the force of circumstances the accused had not been in a position to deposit the money earlier. He submitted that taking into consideration the facts and circumstances under which the appellant had failed to deposit the money forthwith and the fact that he had in fact refunded the entire amount and also undergone the term of imprisonment, the conviction of the accused should be set aside, as otherwise the accused would lose his job and would be utterly ruined.
5. Mr. Altaf Ahmad, appearing on behalf of the State has submitted that there is no ground for any interference with the conviction of the accused by this Court. He has severely commented on the conduct of the accused prior to the discovery of the defalcation of the amount by him. He has argued that if the discovery of the defalcation had not been made, the accused would have misappropriated the said amount. It is his argument that when the fact of embezzlement came to be found out, the accused offered to return the amount and in fact he did refund the entire amount. He submits that the fact of refund of the amount does not absolve the accused of the offence of embezzlement of the government money entrusted to him. In this connection he has referred to the decision of this Court in the case of Krishan Kumar v. Union of India, (1960) 1 SCR 452
6. We do not consider it necessary to refer to any decision. The facts and circumstances of this case clearly establish that there was embezzlement of the Government money by the accused, inasmuch as the accused had put to personal use the Government money entrusted to him, instead of depositing the same in the proper place. The fact that the accused refunded the amount when the act of his defalcation came to be discovered, does not absolve him of the offence committed by him. The accused happened to be a public servant of the Police Department and was posted as Naib-Courty. He was entrusted with the amount seized in two cases F. I. R. Nos. 16 and 17. In complete violation of the directions of law he had failed to send the amount to Sadar Courty Udhampur and with criminial intention he had not made any entry of the money in Rahdari Register, while he made its entry in the Malkhanna Register No. 1, so that his misappropriation of the amount might not be detected by anybody. He committed criminal breach of trust with respect to this money over which he had complete dominion by putting the same to his use between 7th February, 1972 to 8th August, 1972. The refund of the amount after detection does not absolve him of the offence.
7. The appeal fails and is hereby dismissed.
Appeal dismissed.
For Citation : AIR 1983 SC 174