REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
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2 CRIMINAL APPEAL NO. 1159 OF 2012
3 (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.
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 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 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.
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.
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
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 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 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. 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 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,
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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