Gauhati High Court
Page No.# 1/18 vs The State Of Assam on 16 February, 2026
Page No.# 1/18
GAHC010161082011
2026:GAU-AS:2232
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./148/2011
JITU DUBEY
S/O SRI GUPTESWAR DUBEY, R/O D M LOHIA ROAD, NEAR KANYA
PATHSALA, TINSUKIA, P.O., P.S. and DIST. TINSUKIA, ASSAM.
VERSUS
THE STATE OF ASSAM
BEFORE
HON'BLE MRS. JUSTICE SHAMIMA JAHAN
Advocate for the Petitioner : Ms. M Nirola
Advocate for the respondent : Ms. A Begum, Addl. PP
Date on which judgment is reserved :
Date of pronouncement of judgment : 16.02.2026
Whether the pronouncement is of the
operative part of the judgment : No
Whether the full judgment has been
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pronounced : Yes
JUDGMENT & ORDER (Oral)
Heard Ms. M Nirola, learned counsel for the petitioner as well as Ms. A
Begum, learned Additional Public Prosecutor appearing for the State
respondent.
2. This is a revision petition filed under Section 401 read with Section 397 of
the Cr.PC by which the petitioner has challenged the judgment and order dated
14.02.2011 passed by the learned Additional Sessions Judge (FTC) No. 1,
Tinsukia in Criminal Appeal No. 33(4)/2009 affirming the judgment and order
dated 26.10.2009 passed by the learned Chief Judicial Magistrate, Tinsukia in
GR Case No. 123/2007. The petitioner has also challenged the said judgment
and order passed by the learned Chief Judicial Magistrate by which the learned
Court convicted the petitioner under Section 408 of the IPC and sentenced him
to undergo rigorous imprisonment for 1 (one) years with fine and default
stipulation.
FACTS
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3. An FIR was lodged by the informant stating inter alia that he is the
authorised distributor of Igo Marketing (Colour TV, DVD etc) and that his
employee, i.e., the petitioner had collected orders and received money from the
dealers. It is alleged that the said employee stopped coming to the office since
25.12.2016 and that after scrutinising the office records, it was detected that
the petitioner has misappropriated huge sum of money. It was also alleged that
the petitioner had not deposited the Money Receipt Book No. 10 bearing pages
from Sl. Nos. 551 to 600 by alleging further that he had intentionally collected
money from the dealers to cheat them.
4. The Police on receipt of the ejahar registered the case and upon
completion of the investigation submitted charge-sheet under Sections 406/420
of the IPC against the petitioner.
5. The learned Court of the Chief Judicial Magistrate, Tinsukia thereafter
framed charges against the petitioner under Section 408 of the IPC, which was
read over and explained to the petitioner, who pleaded not guilty and claimed to
be tried.
6. The prosecution had examined 5 (five) witnesses, including the
Investigating Officer and thereafter the petitioner was examined under Section
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313 of the Cr.PC and on completion of the trial, the learned Court convicted and
sentenced the petitioner, as mentioned above.
EVIDENCE
7. The informant was examined as the PW-1 and he in his evidence stated
that his wife is the proprietor of the establishment namely, Igo Marketing
Limited which is an electronic distributor firm and that they distributed products
like TV, DVD, etc., to Dibrugarh and Tinsukia district. The said witness stated
that he has the power of attorney to look after the said firm. This witness
further stated that the petitioner was working in their establishment from May,
2006 at a monthly salary and his duty was to collect orders and received
payment from their dealers and for this they had issued money receipt book to
the accused. He also stated that during collection of the money from the
dealers, the original receipt was given to the parties by keeping the counter foil,
carbon copy in the receipt book. He also stated that the petitioner everyday
deposits the collected money to the informant that is shown in the carbon copy
of the receipt book. On 25.10.2006, the informant stated that he came to the
firm to take the money receipt book, bills, price list, etc., but the accused was
found absent in the said evening and it was informed that due to illness, he
could not come to the duty and it was also stated that on the said day, the
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petitioner did not returned the receipt book No. 10 with serial No. 551 to 600
and the collected money. The informant further stated that it was not the
accused responsibility to deliver the products which is actually done by the firm.
The informant being suspicious checked the receipt given to the customers and
compared the same with counter foil, carbon copy of the receipt book and found
dissimilarities written in the original receipts and the amount found written in
the carbon copy. It was found that the petitioner has written less amount in the
carbon copy compared to the amount in the original receipt. It was also stated
that in few cases, the petitioner did not deposit the money as well and as such,
it was found that the petitioner has misappropriated lakhs of rupees.
8. The informant also stated that after lodging of the ejahar, the petitioner
came and returned the receipt book and told him that he had spent all the
collected amount. Thereafter, the informant had specifically stated the
difference of amount of money that is written in the carbon copy and the
original receipt. This witness was cross- examined at length and he denied that
he prepared the receipt after lodging of the case. Further he affirmed that he
has the power of attorney given by the owner of the company i.e., his wife.
9. PW-2 stated that the petitioner was the salesman of the firm and that the
duty of the petitioner was to collect orders from dealers for which he was
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provided with a receipt book and that each day the petitioner was supposed to
return the collected amount along with the receipt book. But on 25.12.2006, the
petitioner was stated to have taken away the receipt book containing fifty
numbers of pages and the discrepancy was seen later.
10. PW-3 stated that his son is a distributor of the firm and that he also
collects orders from the dealers and was given a receipt book. This witness also
stated about the same fact that the petitioner did not return on a particular day
and also had not returned the receipt book and that it was found out that
original receipt contained more amount than the counter foil in respect of other
receipt book.
11. PW-4 is a seizure witness and was also declared as a hostile witness.
12. PW-5 is the Investigating Officer, who stated that during the investigation,
the petitioner handed over a receipt book containing pages from 551 to 576 and
he seized the said book vide seizure list No. 2.
13. These are the prosecution witnesses.
14. The petitioner was examined under Section 313 of Cr.PC wherein he had
admitted he was an employee of the firm and that he had collected orders for
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the firm but denied the collection of money and further asserted that he was
falsely implicated in the case.
15. The Trial Court after consideration of the said evidence on record had held
that the informant on suspicion collected the original receipt from the parties
and compared the same with carbon copy receipt which were in their hands and
it was found out that the accused had entered less amount in the carbon copy
receipt than that of the original receipt and in view of the
statements/depositions made by PW-1 and 2, the learned Court held that the
petitioner had committed the offence of misappropriation by writing less amount
in the carbon copy and found him guilty under Section 408 of the IPC and upon
finding guilty, the Trial Court imposed the sentence as mentioned above.
16. Against the Judgment & Order dated 26.10.2009, the petitioner had filed
an appeal before the learned Court of Additional Sessions Judge (FTC) No. 1,
Tinsukia being Criminal Appeal No. 33(4) of 2009 and the Appellate Court on
perusal of the fact and the law had upheld the decision of the Trial Court with
the modification that the fine amount imposed on appellant was reduced from
Rs. 3000/- to Rs. 1000/- without however, interfering with the substantive
sentence of one (1) year incarceration under Section 408 of the IPC. Against the
said Judgment and Order, the appellant has filed the instant Criminal Revision
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Petition.
ARGUMENTS
17. Ms. M Nirola, learned counsel for the petitioner argues that in the instant
case, the FIR has been lodged with much delay inasmuch as the incident had
occurred on 25.12.2006, the date on which the petitioner is stated to have left
the firm and had not returned the receipt books to the informant and whereas
the FIR was lodged on 04.09.2007, causing a delay of more than a month. She
further submits that there is no explanation of delay in the said FIR. As such,
that had caused prejudice to the petitioner and delay not been explained has
the effect of nullifying the prosecution case.
18. The learned counsel has also raised the ground that the ingredients of
Section 408 of the IPC is not attracted in the case and to substantiate the
submission, the learned counsel placed Section 405 of the IPC, wherein it is
clearly stated that any person has to be entrusted with the property before
charging him under the said Section. She submits that in the instant case, the
only task of the petitioner was to collect money by giving receipts to the buyers
and deposit the money to the informant or the owner of the firm. She as such
submits that there was no entrustment of the property to the petitioner to bring
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the case within the definition of criminal breach of trust. Accordingly, she
submits that Section 408 of the IPC is not made out.
19. The other submission raised by the learned counsel is that the petitioner
was not examined properly under Section 313 Cr.PC, inasmuch as all
incriminating circumstances were not put to him as required under the law. She
submits that the discrepancy that is alleged to have cropped up in the carbon
copy of the receipt book and the original copy that were given to the customers
was not asked to the petitioner.
20. To substantiate her arguments, she relied on the Judgment of:-
(1) MNG Bharateesh Reddy Vs. Ramesh Ranganathan & Anr., reported in
2022 LiveLaw (SC) 701, by which the Hon’ble Apex Court had interpreted
the term entrustment as provided under Section 405 of the IPC.
(2) Nababuddin Alias Mallu Alias Abhimanyu Vs. State of Haryana ,
reported in AIR OnLine 2023 SC 941, by which the Hon’ble Apex Court had
elaborated on the circumstances to be put to the accused person during
his examination under Section 313 of the Cr.PC.
21. Ms. M. Nirola, learned counsel for the petitioner also submits that the
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petitioner is not the owner of the firm. It is his wife who is actually the owner
and it is stated by the petitioner that he has the power of attorney given to him
by the owner of the firm and that neither the wife of the petitioner that is the
owner was examined, nor the power of attorney was exhibited.
22. Per contra, Mr. Sharma, learned Addl. Public Prosecutor appearing for the
state submits that the FIR that is lodged on 04.02.2007, although does not
contained the reasons for delay in so many words, but the contents itself shows
that there is no delay in lodging the same. He submits that it was specifically
written that from 25.12.2006, the petitioner stopped coming to the firm and
neither he submitted the receipt book and since he is an employee of the said
firm, the informant waited for him to return and when he did not return for
long, he out of suspicion compared the receipt books and called for the original
receipt from the customers which took some time and on finding out the
discrepancy, the instant FIR was lodged. So, according to the learned counsel,
sustantial time was taken for the said exercise and the FIR was lodged and as
such, there is no intentional delay on his part. As far as the second contention
of the learned counsel for the petitioner is concerned, Mr. Sharma submits that
ingredients of Section 405 of IPC which defines criminal breach of trust is well
attracted in the instant case. He submits that giving of the receipt book to the
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petitioner for issuing receipts and collecting money from the customers is itself
an entrustment of property of the informant to the accused. On the third
submissions made by the learned counsel for the petitioner that all incriminating
circumstances are not put to the accused person under Section 313 of the
Cr.PC. He submits that the main incriminating circumstances that is the
discrepancy between the receipt and the carbon foil has been put to the
petitioner which was answered in negative by him and as such, no prejudice is
caused to the petitioner.
FINDING
23. The conviction of the petitioner was under Section 408 of the IPC which is
the charging section and Section 405 of the IPC is the provision where the
phrase “criminal breach of trust” has been defined and it is defined in the
following manner:-
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
Page No.# 12/18legal contract, express or implied, which he has made touching the
discharge of such trust, or wilfully suffers any other person so to do,
commits “criminal breach of trust”.
1 [ 2 [Explanation 1].–A person, being an employer 3 [of an establishment
whether exempted under section 17 of the Employees’ Provident Funds
and Miscellaneous Provisions Act, 1952 (19 of 1952) or not] who deducts
the employee’s contribution from the wages payable to the employee for
credit to a Provident Fund or Family Pension Fund established by any law
for the time being in force, shall be deemed to have been entrusted with
the amount of the contribution so deducted by him and if he makes
default in the payment of such contribution to the said Fund in violation of
the said law, shall be deemed to have dishonestly used the amount of the
said contribution in violation of a direction of law as aforesaid.]
4 [Explanation 2.–A person, being an employer, who deducts the
employees’ contribution from the wages payable to the employee for
credit to the Employees’ State Insurance Fund held and administered by
the Employees’ State Insurance Corporation established under the
Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to
Page No.# 13/18have been entrusted with the amount of the contribution so deducted by
him and if he makes default in the payment of such contribution to the
said Fund in violation of the said Act, shall be deemed to have dishonestly
used the amount of the said contribution in violation of a direction of law
as aforesaid.]
Illustrations
(a) A, being executor to the will of a deceased person, dishonestly
disobeys the law which directs him to divide the effects according to the
will, and appropriates them to his own use. A has committed criminal
breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture
to A, under a contract that it shall be returned on payment of a stipulated
sum for warehouse room. A dishonestly sells the goods. A has committed
criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an
express or implied contract between A and Z, that all sums remitted by Z
to A shall be invested by A, according to Z’s direction. Z remits a lakh of
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rupees to A, with directions to A to invest the same in Company’s paper. A
dishonestly disobeys the directions and employs the money in his own
business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith,
believing that it will be more for Z’s advantage to hold shares in the Bank
of Bengal, disobeys Z’s directions, and buys shares in the Bank of Bengal,
for Z, instead of buying Company’s paper, here, thought Z should suffer
loss, and should be entitled to bring a civil action against A, on account of
that loss, yet A, not having acted dishonestly, has not committed criminal
breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either
directed by law, or bound by a contract, express or implied, with the
Government, to pay into a certain treasury all the public money which he
holds. A dishonestly appropriates the money. A has committed criminal
breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by
water. A dishonestly misappropriates the property. A has committed
criminal breach of trust.
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24. The above provision makes it clear that any person who is entrusted with
the property or who had some dominion over that property but who dishonestly
misappropriates or converts to his own use or disposses the same violating the
mode in which the trust is to be discharged is stated to have committed criminal
breach of trust. The provision also entails that if someone entrusted with the
property or with the dominion over property misappropriates converts, uses,
disposses the said property in violation of any legal contract, express or implied
which he has made touching the discharge of such trust is said to have
committed criminal breach of trust.
25. In the instant case, it is seen more so from the evidence of PW-1, who is
the husband of the proprietor of the firm, that the petitioner was employed as
an employer from May, 2006, and he was working for more than 6 (six) months
in the said firm at a monthly salary which shows that the employer has put her
trust on him. The trust can also be seen from the duty that was assigned to the
petitioner, who was supposed to collect orders from the customers and receive
payment by issuing original receipt by keeping the counter foil and by
depositing the same i.e., the receipt book and the counter foil as well as the
collected money to the owner of the firm. The said duty that was assigned to
the petitioner was also stated by other witnesses i.e., PW-2 as well as PW-3. So
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the duty of the petitioner was to collect orders, collect the money and give the
original receipts to the customers.
26. As per the definition of Section 405 of the IPC, it is provided that if
someone is entrusted with the property and was given the trust and he misuses
the same, touching the discharge of such trust, the said person is said to have
committed criminal breach of trust. Here in the instant case, the petitioner was
given the trust of collecting the money and issuing the original receipt and that
he violated the same in the instant case.
27. Further as far as delay in lodging the FIR is concerned, it is seen that
since the petitioner has been working more than six (6) months in the firm of
the wife of PW-1, the informant after finding out that the petitioner did not
come to the office for long, out of suspicion compared the receipt copies and
found the discrepancy which took some time and as such, the FIR was lodged
with some delay.
28. The learned counsel for the petitioner raises another ground of not putting
the question to the petitioner about his signature in the receipt books. However,
the same would not be relevant in the instant case neither the same would
cause prejudice because the said receipt book was given to the petitioner for
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discharging his duty. Furthermore, remanding the case to the Trial Court after
20 years of the offence would not serve any purpose, neither the case can be
set aside on that ground.
29. Be that as it may, under Section 360 of the Cr.PC, it is specifically provided
that any person who is not under 21 years of age is convicted for an offence
punishable with fine only or with imprisonment for a term of 7 years and if it
appears to the Court before which he is convicted with regard to the age,
character or antecedents of an offender and to the circumstances in which the
offence was committed, the Court can direct the offender to be released on
probation of good conduct on his entering into a bond and to keep peace and
be on good behaviour.
30. In the case at hand, it is seen that the Trial Court had declined to give
benefit under Section 360 of Cr.PC and by considering the social liability of the
petitioner he was imposed with a minimum sentence of one year with a fine of
Rs. 3,000/- which was again reduced by the Appellate Court to Rs., 1,000/-.
However, it is seen that the Trial Court had not considered the aspect of giving
him benefit under the Provision of Offenders Act or under Section 360 of Cr.PC
to that extent which is required under the law.
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31. It is noticed that the petitioner has to look after his parents and was found
that at the time of occurrence he was 22 years of age. As such, by taking a
lenient view, the petitioner is released on probation and instead of sentencing
him, the petitioner be released on entering into a bond with one (1) surety and
to maintain peace and good behaviour.
32. The Trial Court i.e., Chief Judicial Magistrate, Tinsukia would do the
needful.
33. Send back the LCR.
34. The petition is disposed of.
JUDGE
Comparing Assistant
