Kanhaiyalal S/O Shrawan Damahe vs State Of Maharashtra, Through P.S. … on 8 April, 2026

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    Bombay High Court

    Kanhaiyalal S/O Shrawan Damahe vs State Of Maharashtra, Through P.S. … on 8 April, 2026

    2026:BHC-NAG:5535
    
    
    
    
                  Judgment
    
                                                                           revn130.15
    
                                                 1
    
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                              NAGPUR BENCH, NAGPUR
    
                        CRIMINAL REVISION APPLICATION NO.130 OF 2015
    
                  Kanhaiyalal s/o Shrawan Damahe,
                  age: 56 years, occupation: service, r/o
                  Ramtek, district Nagpur (presently
                  in Central Jail, Nagpur).               ..... Applicant.
    
                                         :: V E R S U S ::
    
                  State of Maharashtra, through
                  P.S.Saoner, district Nagpur.  ..... Non-applicant.
                  ================================
                  Shri Amol Mardikar, Counsel for the Applicant.
                  Mrs.M.A.Barabde, APP for the for the Non-applicant/State.
                  ================================
                  CORAM              : URMILA JOSHI-PHALKE, J.
                  RESERVED ON : 13/03/2026
                  PRONOUNCED ON : 08/04/2026
    
                  JUDGMENT
    

    1. Heard learned counsel appearing for the respective

    parties. Admit. Heard finally by consent.

    SPONSORED

    2. By this revision, the applicant has challenged judgment

    and order of conviction and sentence dated 14.3.2014 passed

    by learned Chief Judicial Magistrate First Class, Nagpur in

    RCC No.3249/2008 which is confirmed by judgment and

    …..2/-

    Judgment

    revn130.15

    2

    order dated 7.10.2015 passed by learned Additional Sessions

    Judge-7, Nagpur in Criminal Appeal No.68/2014.

    3. By the said judgment and order impugned, the

    applicant is convicted for offence under Section 409 of the

    IPC and sentenced to suffer rigorous imprisonment for 5 years

    and to pay fine Rs.2000/-, in default, to suffer rigorous

    imprisonment for 1 month.

    He is further convicted for offence under Section 466

    of the IPC and sentenced to suffer rigorous imprisonment for

    5 years and to pay fine Rs.2000/-, in default, to suffer

    rigorous imprisonment for 1 month.

    He is further convicted for offence under Section 477

    of the IPC and sentenced to suffer rigorous imprisonment for

    5 years and to pay fine Rs.2000/-, in default, to suffer

    rigorous imprisonment for 1 month.

    4. Brief facts for disposal of the revision are as under:

    …..3/-

    Judgment

    revn130.15

    3

    The applicant was working in District Court, Nagpur

    and posted in the Court of Civil Judge Junior Division,

    Saoner. He was assigned with duty as Property Clerk in the

    said court from 1.6.2001 to 31.5.2005. During his tenure as

    property clerk, he received valuable muddemal property and

    amounts in various crimes from various Police Stations.

    Though he has given acknowledgment of receipts of the same

    on carbon copy of invoice to the police, he has not taken

    entries of the same in the property registers. He has kept the

    said amounts with him and used for his own purpose. In

    some cases, he has taken entry in the property registers, but

    has kept amounts with him for certain period and belatedly

    deposited with fine Clerk in CrCD Account. Thus, he has

    misappropriated amount Rs.2,45,989/- and temporary

    misappropriation was of Rs.46,929/-.

    It was further alleged that when he was serving as

    Property Clerk, he has not taken entries of properties in

    property registers and had kept pages blank after property

    …..4/-

    Judgment

    revn130.15

    4

    No.24 of 2002 was entered. In general property registers

    also, there are entries of properties and some pages were kept

    blank. He has also not obtained signatures of the Presiding

    Officer and reasons are not mentioned for keeping pages

    blank. Signatures of the Presiding Officer were not taken for

    entries of cash amounts bearing property No.28 of 2005 to 44

    2005. Similarly, entries were scored and the had not been

    signed by him and also had not obtained signatures of the

    Presiding Officer.

    On the basis of report of the Superintendent of the

    said Court, the crime was registered against the present

    applicant and other co-accused.

    5. During investigation, the Investigating Officer has

    seized relevant documents, recorded relevant statements of

    witnesses, and after completion of the investigation,

    submitted chargesheet against the present applicant in the

    Court of learned Additional Chief Judicial Magistrate.

    …..5/-

    Judgment

    revn130.15

    5

    Learned Additional Chief Judicial Magistrate framed charge

    vide Exh.68.

    6. In support of the charge, the prosecution placed

    reliance on 14 witnesses, they are as follows:

         PW                   Names of Witnesses                    Exh.
         Nos.                                                       Nos.
          1       Aparna Joshi, informant                            80
          2       Laxman Nimje,        pancha    on     seizure     110
                  panchanama
          3       Suryabhan Gaikwad, pancha                         145
          4       Shrikant Kolte, Senior Clerk                      163
          5       Sharad Dupare, pancha                             165
          6       Sheshrao Babhurde, pancha                         187
          7       Rajendrasing Thakur, Property Clerk               234
          8       Neha Rawanhate                                    283
          9       Manohar Welekar                                   299
         10       Ravi Bhagwat                                      301
         11       Waman Rewatkar                                    299
         12       Ramesh Wadbudhe, Police Head Constable            516
         13       Shammi Israil Sheikh                              555
         14       Vasant Rewatkar                                   570
    
    
    
    
                                                                     .....6/-
     Judgment
    
                                                        revn130.15
    
                                 6
    
    

    7. Besides the oral evidence, the prosecution placed

    reliance on reports Exhs.81, 86, 87, and 88, FIRs Exhs.82 and

    91, extract of property register Exh.677, extract of delayed

    deposits of amount of deposits of Saoner Police Station

    Exh.678, duty chart Exh.679, property extract as to property

    regarding Khapa Police Station, delay in depositing property

    amount extract regarding Khapa Police Station Exh.681,

    extract of property register of Kalmeshwar Police Station

    Exh.682, delay in depositing the property in the matter of

    Kalmeshwar Police Station, extract of property register of

    Kelwad Police Station Exh.684, extract of delay in depositing

    property amount in criminal court as to Kelwad Police Station

    Exh.685, extract of property register of Khaperkheda Police

    Station Exh.686, delay in depositing the property amounts in

    criminal court of Khaperkheda Police Station Exh.687, seizure

    memo Exh.688, seizure panchanama Exh.111, and seizure

    memo Exh.517.

    …..7/-

    Judgment

    revn130.15

    7

    8. On the basis of the said oral as well as the

    documentary evidence, the trial court came to conclusion that

    there is a sufficient evidence against the present applicant and

    the offence against him is proved. It is further held that

    sanction under Section 197 of the CrPC is not required as

    offences are not committed in discharge of official duty. It is

    specifically held that the present applicant has committed the

    offences which are not part of his official duty and, therefore,

    protection is not available to him.

    9. Being aggrieved and dissatisfied with the same, the

    present applicant has preferred an appeal. The said appeal

    also came to be dismissed by observing that defence of the

    present applicant rests on only fact that registers of the

    concerned police station were not verified. Similarly, the

    properties were not received by him. However, testimony of

    witnesses clearly demonstrated that amount Rs.2,45,989/-

    was entrusted with the present applicant and he failed to

    deposit the same. The evidence of witnesses further discloses

    …..8/-

    Judgment

    revn130.15

    8

    that amount Rs.46,929/- was cumulatively accepted by him in

    various crimes and was deposited belatedly. In the meantime,

    he has used the said amount for his personal use. Thus,

    entries taken by the present applicant sufficiently show that

    he has received the amount, but he has not deposited the

    same in CrCD Account and thereby he has committed an

    offence of “criminal breach of trust” of Rs.2,45,989/- and

    temporary misappropriation was of Rs.46,929/- and thereby

    confirmed the conviction.

    Hence, the present criminal revision application is

    filed.

    10. Learned counsel for the applicant submitted that as

    per the prosecution case, the alleged incident of

    misappropriation was in the year 2002. Whereas, the FIR

    came to be lodged in the year 2005. The entire prosecution

    evidence rested upon invoices and original invoices are not

    brought on record.

    …..9/-

    Judgment

    revn130.15

    9

    As far as seizure of documents are concerned, none of

    pancha witnesses has supported the prosecution case and,

    therefore, seizure of documents is not proved. In view of

    provisions of Criminal Manual, it was the Magistrate who has

    to verify entries, which are not verified by the Magistrate and,

    therefore, there is a negligence in verification of property

    registers by the Magistrate also. As original invoices are not

    on record, aspect of “criminal breach of trust” itself is not

    established.

    He submitted that the Trial Court as well as the First

    Appellate Court failed to appreciate the evidence that PW1

    Aparna Joshi could not establish that it was the present

    applicant who was assigned with the duty and it was he who

    has taken entries or accepted amounts. In absence of proof of

    signatures on invoices of present applicant, learned Judge of

    the trial court has wrongly convicted the present applicant. In

    view of that, the revision deserves to be allowed.

    …..10/-

    Judgment

    revn130.15

    10

    11. Per contra, learned APP for the State strongly opposed

    the said contentions and submitted that in order to

    substantiate the contentions, the prosecution has examined 14

    witnesses. The material witness is Aparna Joshi, who was, at

    the relevant time, serving as Superintendent. Her evidence

    shows that Khaperkheda, Kalmeshwar, Kelwad, and Khapa

    Police Stations were attached to the joint court. The

    inspection of the joint court at Saoner was carried out in June

    2005. The directions were given to complete moster work

    with immediate effect. For the said moster work, eight

    employees were deputed by the order of learned Principal

    District Judge. While completing the moster work, it was

    further directed to dispose of property No.41, 41, and

    42/2002. These numbers were noted on invoices attached

    with the file. However, the said numbers were missing in

    register Exh.30 and, therefore, she called invoice register

    from the Saoner Police Station and found that in so many

    matters, the then Property Clerk, i.e. the present applicant,

    …..11/-

    Judgment

    revn130.15

    11

    though gave receipts to the concerned police, those properties

    were not mentioned in the property register and, therefore,

    she obtained photocopies of those invoices from police station

    and submitted report to the Presiding Officer. The Presiding

    Officer has directed to take a search of these cases and on

    searching of 7-8 cases, she found that entries of muddemal

    were not taken in the muddemal register. Therefore,

    verification of the account register was also done and it was

    noticed that entries of cash muddemal were not taken in the

    concerned register in respect of amount approximately

    Rs.13,000/-. The said fact was also brought to the notice of

    the Presiding Officer, who verified the said fact and submitted

    report to learned Principal District and Sessions Judge,

    Nagpur on 7.9.2007. Learned Principal District and Sessions

    Judge, Nagpur directed Superintendent Shri Sheikh to verify

    the said fact. Thereafter, the Superintendent prepared list of

    invoices in respect of Saoner Police Station. Other invoices of

    other police stations are also verified and it revealed that the

    …..12/-

    Judgment

    revn130.15

    12

    present applicant has accepted amounts in various crimes, but

    has not deposited the same though he has taken entries in

    CrCD Register and some properties were deposited by him

    belatedly. This fact is further corroborated by the property

    registers Exhs.302, 303, 304, and 305. She has also prepared

    Schedule-I Exh.677 in respect of misappropriated amounts

    pertaining to Saoner Police Station, Khapa Police Station

    Exh.681, Kelmeshwar Police Station Exh.684, Kelwad Police

    Station Exh.686, and Khaperkheda Police Station Exh.687.

    She submitted that the evidence further shows that Senior

    Clerk PW4 Shrikant Kolte, working in court, also corroborates

    the evidence of PW1 Aparna Joshi, PW7 Rajendrasing Thakur

    attached to the Saoner Police Station, PW11 Waman Rewatkar

    attached to the Saoner Police Station, PW12 Ramesh

    Wadbudhe deputed as Moharir with Kelwad Police Station,

    and PW13 Shammi Israil Sheikh representative of various

    police stations, who also deposed that they deposited the

    property and invoices were issued to them.

    …..13/-

    Judgment

    revn130.15

    13

    Thus, she submitted that after scrutiny of evidence of

    witnesses, it revealed that the present applicant was Property

    Clerk for the period of 1.6.2001 to 31.5.2005. The procedure

    for depositing the property, as per Criminal Manaual, that he

    has to deposit the same by taking entry in CrCD Register. The

    present applicant has not denied that he was serving as

    Property Clerk of the relevant period.

    The evidence further shows that some pages of relevant

    registers were kept blank.

    Thus, the present applicant has not performed his duty.

    The intention of the present applicant is apparent and,

    therefore, he has committed offences under Sections 409, 466,

    and 477 of the IPC.

    12. The present applicant has challenged concurrent

    findings of the Trial Court as well as the First Appellate Court

    by preferring this revision.

    …..14/-

    Judgment

    revn130.15

    14

    13. As far as scope of revision is concerned, it is well

    settled that while exercising revisional powers, cardinal

    principles to be kept in mind is that scope of revision is very

    limited. Only to see as to correctness, legality, and propriety

    of any finding and sentence of an order. This Court or the

    Sessions Court is empowered to call for and examine the

    record of any proceeding pending before any inferior criminal

    court situates within its or his local jurisdiction for the purpose

    of satisfying itself or himself as to the correctness, legality or

    propriety of any finding and sentence or order, recorded or

    passed, and as to the regularity of any proceedings of such

    inferior Court, and may, when calling for such record, direct

    that the execution of any sentence or order be suspended, and

    if the accused is in confinement, that he be released on bail or

    on his own bond pending the examination of the record.

    14. In the case of Bindeshwari Prasad Singh @ B.P. Singh

    and anr vs. State of Bihar (now Jharkhand), reported in

    (2002)6 SCC 650, the Hon’ble Apex Court held as under:

    …..15/-

    Judgment

    revn130.15

    15

    “….. The High Court was not justified in re-
    appreciating the evidence on record and coming to
    a different conclusion in a revision preferred by the
    informant under Section 401 of the Code of
    Criminal Procedure. Sub-section (3) of Section 401
    in terms provides that nothing in Section 401 shall
    be deemed to authorize a High Court to convert a
    finding of acquittal into one of conviction. The
    aforesaid sub-section, which places a limitation on
    the powers of the revisional court, prohibiting it
    from converting a finding of acquittal into one of
    conviction, is itself indicative of the nature and
    extent of the revisional power conferred by Section
    401
    of the Code of Criminal Procedure. If the High
    Court could not convert a finding of acquittal into
    one of conviction directly, it could not do so
    indirectly by the method of ordering a re-trial. It is
    well settled by a catena of decisions of this Court
    that the High Court will ordinarily not interfere in
    revision with an order of acquittal except in
    exceptional cases where the interest of public
    justice requires interference for the correction of a
    manifest illegality or the prevention of gross
    miscarriage of justice. The High Court will not be

    …..16/-

    Judgment

    revn130.15

    16

    justified in interfering with an order of acquittal
    merely because the trial court has taken a wrong
    view of the law or has erred in appreciation of
    evidence. It is neither possible nor advisable to
    make an exhaustive list of circumstances in which
    exercise of revisional jurisdiction may be justified,
    but decisions of this Court have laid down the
    parameters of exercise of revisional jurisdiction by
    the High Court under Section 401 of the Code of
    Criminal Procedure in an appeal against acquittal
    by a private party.”

    15. In another decision, in the case of Ashish Chadha vs.

    Smt.Asha Kumari and anr, reported in (2012)1 SCC 680, the

    Hon’ble Apex Court observed that, the High Court has in its

    revisional jurisdiction appraised the evidence which it could

    not have done. It is the trial court which has to decide

    whether evidence on record is sufficient to make out a prima

    facie case against the accused so as to frame charge against

    him. Pertinently, even the trial court cannot conduct roving

    and fishing inquiry into the evidence. It has only to consider

    …..17/-

    Judgment

    revn130.15

    17

    whether evidence collected by the prosecution discloses prima

    facie case against the accused or not.”

    16. Thus, in its revisional jurisdiction, this court can call for

    and examine record of any proceeding for the purpose of

    satisfying itself as to the correctness, legality, and propriety of

    any finding or sentence or order. In other words, the

    jurisdiction is one of supervisory jurisdiction exercised by the

    High Court for correcting miscarriage of justice, but the said

    revisional power cannot be equated with the power of an

    Appellate Court nor can it be treated even as a Second

    Appellate Jurisdiction. Ordinarily, therefore, it would not be

    appropriate for this court to re-appreciate the evidence and

    come to its own conclusion on the same when the evidence

    has already been appreciated by the Magistrate as well as

    Sessions Judge in appeal, unless any glaring feature is brought

    to the notice of the High Court which would otherwise

    tantamount to gross miscarriage of justice.

    …..18/-

    Judgment

    revn130.15

    18

    17. In the light of the above well settled principles, the

    present revision application requires to be decided.

    18. The evidence on record shows that the present

    applicant was Property Clerk from 1.6.2001 to 31.5.2005. The

    allegations against the present applicant are that during his

    tenure as Property Clerk, he has accepted properties received

    from the concerned police station and though he has given

    acknowledgment, he has not taken entries to that effect in the

    property register and has utilized the cash amounts for his

    own benefit. He has utilized the cash amount of

    Rs.2,45,989/- for his own use and also temporarily utilized

    amount Rs.46,929/-, which was subsequently deposited.

    To substantiate the said allegation, the prosecution has

    examined the material witness PW1 Aparna Joshi. From her

    evidence, it reveals that Khapa, Kalmeshwar, and Kelwad

    Police Stations were attached to the joint court. The

    inspection of the joint court at Saoner was carried out in June

    …..19/-

    Judgment

    revn130.15

    19

    2005. In view of that inspection, directions were given to

    complete moster work and, therefore, eight employees were

    deputed to complete the moster work. It was further directed

    to dispose of property Nos.40, 41, and 42 of 2002. These

    numbers were also noted on the invoice attached with the

    file. It was noticed by her that the properties are not

    mentioned in the register Exh.302 and, therefore, she called

    invoice register from the Saoner Police Station and it revealed

    to her that in various in matters, the present applicant, who

    was working as Property Clerk, has given receipts to the

    concerned police stations, however those properties were not

    mentioned in the property registers. She obtained

    photocopies of those invoices from the police station reported

    the matter to the Presiding Officer. The Presiding Officer

    directed to take a search of cases and after searching of 7-8

    cases, she found that entries of muddemal were not taken in

    the muddemal register. In view of that, she also verified the

    account register and noticed that entries of cash muddemal

    …..20/-

    Judgment

    revn130.15

    20

    were not taken in the concerned register in respect of amount

    approximately Rs.13,000/-. This fact was also brought to the

    notice of the Presiding Officer. After verifying the fact, the

    Presiding Officer reported to learned Principal District and

    Sessions, Nagpur on 7.9.2007. Learned Principal District and

    Sessions, Nagpur deputed Superintendent Shri Shaikh to

    verify the said fact. On 9.9.2007, PW1 Aparna Joshi along

    with Superintendent Shri Shaikh prepared list of invoices in

    respect of Saoner Police Station. Therefore, Superintendent

    G.B.Patil has verified remaining invoices and submitted report

    to learned Principal District and Sessions, Nagpur. Thereafter,

    considering misappropriation of properties, as per directions

    of Learned Principal District and Sessions, Nagpur, PW1

    Aparna Joshi lodged report at Saoner Police Station. The said

    report is at Exh.81.

    19. Perusal of the said report, FIR Exh.82 was registered.

    Thereafter, she also lodged reports Exhs.86, 87, 88, and 89 in

    respect of muddemal properties of Khapa, Kalmeshwar,

    …..21/-

    Judgment

    revn130.15

    21

    Kelwad, and Khaperkheda Police Stations. Subsequently, all

    FIRs are amalgamated and the investigation was completed

    and chargesheet was filed.

    20. The evidence shows that Exh.302 is register of the year

    2002 wherein muddemal properties upto property No.24

    were mentioned and, thereafter, there are no entries in the

    property register. On verification of invoices of the Saoner

    Police Station, it reveals that in general property registers

    since 26.7.2002 and 19.4.2002 no entries after property

    No.24 of 2002 were taken. Property Nos.40, 41, and 42 of

    2002 includes one stone, brick pieces, and iron rod. On

    verification of the register, it further reveals that fictitious

    property numbers were mentioned in the invoices, but entries

    of those properties were not mentioned in the muddemal

    register and cash muddemal properties. Therefore, CrCD

    Register was also inspected and it is found that those cash

    properties are not entered in the CrCD Register. Exh.303

    muddemal register No.10 was also examined and it was

    …..22/-

    Judgment

    revn130.15

    22

    noticed that muddemal properties upto 2003 were noted in

    the register. Perusal of invoices received from Saoner Police

    Station shows that muddemal property numbers onward 150

    of 2003 were mentioned on invoices, but entries of the same

    are not taken. Similarly, in property register No.11 Exh.304 it

    was noticed that property numbers onward 36 of 2004 were

    noted, but entries of those properties were not taken in

    muddemal register No.11 Exh.304 for the year 2004. at

    property register No.12 Exh.305, overwriting was noticed

    against entry No.28 of 2005 to entry No.44 of 2005 which

    was in respect cash amount. Signatures of the Presiding

    Officer was also not taken and there was overwriting and the

    overwriting was not initialed either by the present applicant

    or the Presiding Officer.

    21. Separate registers for the year 2003, 2004, and 2005,

    were prepared. Despite the fact that register of the year

    2003, after entry of 156/2003, was blank. Similarly, register

    of the year 2004, after entry No.36 of 2004, was kept blank.

    …..23/-

    Judgment

    revn130.15

    23

    PW1 Aparna Joshi has prepared Exh.677 Scheduled-I in

    respect of misappropriated property and amount pertaining to

    the Saoner Police Station was to the tune of Rs.1,05,663/-.

    Exh.678 Scheduled-II is in respect of misappropriated amount

    Rs.11,388/-. Exh.680 Schedule-1 is in respect of

    misappropriated amount pertaining to Khapa Police Station

    comes to Rs.45,165/- and Schedule-II of temporary

    misappropriated amount comes to Rs.9,444/- pertaining to

    the Khapa Police Station. Schedule-I Exh.682 is in respect of

    misappropriated property of which amount comes to

    Rs.66,426/- and Exh.683 Schedule-II is in respect of

    temporary misappropriated amount of Rs.1,974/- pertaining

    to the Kalmeshwar Police Station. Exh.684 Schedule-I is in

    respect of misappropriated amount of Rs.30,258 and Exh.685

    Schedule-II is in respect of temporary misappropriated

    amount of Rs.19,297/- pertaining to the Kelwad Police

    Station. Exh.686 Schedule-I is in respect of misappropriated

    amount of Rs.14,601/- and Exh.687 Schedule-II is in respect

    …..24/-

    Judgment

    revn130.15

    24

    of temporary misappropriated amount of Rs.4,526/-

    pertaining to the Khaperkheda Police Station.

    22. During her cross examination, an attempt was made to

    show that during the inspection for the period from

    1.10.2001 to 31.5.2005, no irregularity was notice, but she

    has explained that compliance of the inspection note for the

    year 2005 was going on and the Presiding Officer has passed

    the order and prepared team of employees for completion of

    moster work and at that relevant time, while complying with

    the directions for disposal of the property Nos.40, 41, and 42,

    this misappropriation was brought to the notice. An attempt

    was made to show that she has no personal knowledge,

    however being she is a Superintendent, she has deposed on

    the basis of documents maintained during day to day affairs

    at the relevant time. Much stress was given on the aspect that

    no complaint was received from any police stations attached

    to the Saoner Court, but mere complaint was not received is

    not sufficient to come to conclusion that mere non filing of

    …..25/-

    Judgment

    revn130.15

    25

    the complaint would be sufficient to say that the applicant has

    not committed any offence.

    23. Thus, as far as these documents Exhs.677 to 687

    clearly established misappropriation at the hands of the

    present applicants.

    24. The evidence of PW1 Aparna Joshi is further

    corroborated by PW4 Senior Clerk Shrikant Kolte working at

    the the Court of Saoner, who deposed that on the directions of

    Smt.Aparna Joshi that entry is to be taken of the final order

    regarding property Nos.40, 41, and 42 in the muddemal

    register. It was noticed by him that property numbers were

    only upto 24 of 2002 and and, thereafter, pages were kept

    blank. Therefore, he brought this fact to the notice of PW1

    Aparna Joshi. Despite the cross examination, nothing is

    elicited to falsify his version.

    25. The evidence of PW7 Rajendrasing Thakur and PW11

    Waman Rewatkar shows that they were attached to the Saoner

    …..26/-

    Judgment

    revn130.15

    26

    Police Station. The offence was registered regarding

    misappropriation of property of Rs.1,50,000/- and the said

    amount was deposited by the police station in the year 2002

    and obtained the signature of the concerned clerk on invoice

    Exh.279. He has also deposited other properties vide Challans

    Exhs.280 and 281, which were deposited by him.

    26. The evidence of PW11 Waman Rewatkar categorically

    shows that he was attached to the Saoner Police Station since

    1996 to 1.6.2006. The duty assigned to him was to take note

    in muddemal register of police station in respect of muddemal

    seized. He used to send the property to the court and used to

    maintain invoice challan in the office. On some occasions, he

    used to visit the court. The invoice challans Exhs.332 and 333

    and 341 to 495 are shown to him. The same were invoices in

    respect of properties deposited by the said police station.

    During his cross examination, efforts were made to

    extract from him that these invoices were not verified with the

    …..27/-

    Judgment

    revn130.15

    27

    entries in the police station. However, he stated that he

    personally handled the muddemal register and invoices were

    returned by him.

    27. PW12 Ramesh Wadbudhe, was serving as Moharir with

    Kelwad Police Station from 2003-2009 and used to carry

    muddemal from the police station to the court. His evidence

    also shows that invoice was given to him against the property

    registered by him. Two registers B & C were seized vide

    seizure Exh.517. He has handed over the invoices Exhs.518

    and 445 to the present applicant, which bear the signature of

    the present applicant.

    28. PW13 Shammi Israil Sheikh is also police constable

    dealing with the court work for the period 2001 to 2004. He

    was assigned with the duty to take muddemal from the Saoner

    Police Station to the Court and hand over the same to the

    present applicant. Invoices Exhs.365 to 415 were handed over

    to him by the present applicant. He has deposited the

    …..28/-

    Judgment

    revn130.15

    28

    respective properties against invoices Exhs.342, 344 to 364.

    The said invoices bear signatures of the present applicant.

    29. The evidence of PW14 Vasant Rewatkar also shows that

    he was also working as police constable and dealing with the

    court works. The present applicant used to receive the

    properties and issue invoices to him. He has deposited the

    properties against which invoices challan Nos.577 to 641 were

    given to him. He has deposited the said properties vide

    challan Exhs.642 to 654.

    30. Thus, the evidence of these witnesses, especially PW7

    Rajendrasing Thakur, PW11 Waman Rewatkar, PW12 PW12

    Ramesh Wadbudhe, PW13 Shammi Israil Sheikh, and PW14

    Vasant Rewatkar, shows that they were assigned with the duty

    to hand over the muddemal and accordingly, they have

    obtained the invoices against the muddemal deposited by

    them.

    …..29/-

    Judgment

    revn130.15

    29

    31. Another material witness examined is PW10 Ravi

    Bhagwat who was as Joint CJJD and JMFC at Saoner from

    15.5.2005 to 31.5.2008. His evidence shows that during the

    inspection for the period from 6.5.2002 to 18.6.2005, as per

    the inspection note, direction was given to complete moster

    work. During completion of the moster work, it was noted

    that no final order was entered regarding property Nos.40 of

    2002, 41 of 2002, and 42 of 2002 and it was noticed that the

    last entry of the property was 24 of 2002 and, thereafter,

    pages were kept blank. Therefore, as per his directions, the

    information was collected from Saoner, Kelwad, Kalmeshwar,

    Khapa, and Khaperkheda Police Stations and it was found that

    the Property Clerk has mentioned property numbers on those

    invoices, also put the stamp of the court on those challans, and

    put his signatures, but not deposited the said muddemal or

    the amounts. The properties were cash amounts and general

    muddemal. There was misappropriation of Rs.2,43,113/- and

    temporary misappropriation was of Rs.46,629/-. The

    …..30/-

    Judgment

    revn130.15

    30

    temporary misappropriation means the amount was used by

    the present applicant for his personal use for some time and it

    was deposited belatedly.

    32. Thus, the evidence of PW10 PW10 Ravi Bhagwat

    corroborates the evidence of PW1 Aparna Joshi.

    33. It was consistently argued that the original registers of

    the police stations are not verified and it is not brought on

    record whether such properties were seized and entered in the

    muddemal register of the police stations.

    34. After going through the judgment impugned in the

    present revision, it shows that the Trial Court as well as the

    First Appellate Court, on scrutinizing the evidence, observed

    that the applicant was Property Clerk for the period from

    1.6.2001 to 31.5.2005.

    35. The procedure for depositing the properties is

    enumerated in the Criminal Manual. Paragraph Nos.67, 69,

    70, 71, and 73 of the Criminal Manual read as under:

    …..31/-

    Judgment

    revn130.15

    31

    “67. (1) When property is produced before a Court
    with a list, the list should de exhibited and it should
    be seen that each article is separately marked and
    numbered for identification.

    (2) Where any of the articles mentioned in the list
    have been sent to the Chemical Analyzer for
    examination, the corresponding numbers given to
    those articles by the police while forwarding the
    articles to the Chemical Analyzer, as well as the
    numbers given to them by the Chemical Analyzer,
    should also be shown in the list.

    (3) If the property is seized without a list, a list of it
    should be prepared and exhibited. This list should also
    give where necessary, the particulars referred to sub-
    paragraph (2).

    (4) All the Sessions Judges and Magistrates should get
    a map of the Record Room as well as a map of the
    Muddemal Room of their Courts prepared, showing
    therein the racks with numbers and category of record
    of Muddemal kept on each rack, and should see that
    the said map is fixed at the entrance of each Record
    Room and Muddemal Room of their Courts.

    …..32/-

    Judgment

    revn130.15

    32

    69. After the receipt of Muddemal and other property
    along with the record of every Criminal Case in the
    Court by the Criminal Sheristedar-cum-Clerk, it should
    be immediately entered in the property Register to be
    maintained in the following form and a note of the
    Property Register Number should be taken on the
    chargesheet (and in case of non-receipt of the
    property, a note should also be taken that it is not
    received with the charge-sheet).

    The primary responsibility of making the entries of the
    property in the Property Register and taking the notes
    as aforesaid on the charge-sheet shall ordinarily be of
    the Senior Clerk in the Court of a Magistrate and of
    the Nazir in the Sessions Court. Such entries made in
    the Property Register and notes taken on the charge-
    sheet should be verified and countersigned by the
    Magistrate or by the Clerk of the Court in the Sessions
    Court in order to indicate that the property produced
    in the Court has actually been entered.

    Before passing any first orders, the Presiding Officer
    should verify and confirm that the entries in the
    Property Register and notes on the charge-sheet have
    duly been made accordingly by the persons concerned,

    …..33/-

    Judgment

    revn130.15

    33

    and in case they are not made accordingly, direct the
    Nazir and the Clerk concerned to make the necessary
    entries in the Property Register and take the necessary
    notes on the charge-sheet before passing any first
    orders in that behalf.

    While sending all the papers in the cases placed on
    dormant file to the District Record Rooms, according
    to the instructions contained in para 83(iii) of Chapter
    VI and paragraphs 17(9) and (10) of Chapter XX of
    Criminal Manual, all the articles of Muddemal
    property in such cases should not be returned or sent
    back to the police stations concerned for safe custody
    under any circumstances, but should normally be
    preserved or kept in the custody of the Courts of the
    Magistrates wherein cases are filed or trial is pending.
    Only in exceptional cases, when there is no sufficient
    space or accommodation available for the custody of
    such property in such Courts of the Magistrates, the
    articles of such muddemal properties should be sent to
    the Nazir of the Sessions Court concerned for sale
    custody after obtaining the orders of the District and
    Sessions Judge in that behalf.

    …..34/-

    Judgment

    revn130.15

    34

    For the purpose of making entries of such muddemal
    articles received in the District Court from the
    Criminal Courts, separate and common registers
    should be maintained in the District Court. Such
    register should not be Court-wise but they should
    contain a column for entries indicating the Courts
    from which the properties are received. The names of
    the Courts from which the properties are received
    should be noted specifically in red ink in column 3 of
    such register above the Criminal Case numbers so as
    to facilitate the distinguishing of muddemal properties
    and the different Courts from which they are received.

    When the muddemal properties and the records in the
    cases on the dormant file are sent to the District
    Courts for the safe custody and preservation, the
    Magistrate concerned should call back the records of
    such cases periodically to Issue warrants or
    summonses, as the case may be.

    The muddemal property herein does not include
    valuable property.

    …..35/-

     Judgment
    
                                                                                        revn130.15
    
                                                 35
    
    Sr.       Date of Receipt of Criminal Case      Name of          Description    Initials of the
    No.         the property          No.            parties          of articles   Magistrate or
                                                  Complainant/A          with        Clerk of the
                                                     ccused          particulars        Court,
                                                                      and value        Sessions
                                                                     (weights in     Court as to
                                                                        case of      the receipt.
                                                                      valuables)
     1               2                  3                4                 5               6
    
    
    
    
     Order of        Date of    Date   Signature of       Name,        Signature of      Remarks,
    Magistrate       issue of   and    the recipient signature and the Magistrate         if any
     or Judge      notice for manner      of the      address of the or Clerk of the
    regarding      return of  of final   property         person      court, Sessions
     disposal           the   disposal   with date   identifying the      Court.
    with date      muddemal                          recipient of the
                  property to                          muddemal
                        the                              property
                    claimant
                     and the
                   date fixed
                        for
                  appearance.
          7              8       9          10              11              12              13
    
    
    
    

    70. (a) A separate Register for valuable properties in
    the same form as the Property Register should be
    maintained to facilitate constant check and supervision
    valuable muddemal. The valuables should always be
    returned in the presence d by the Magistrate or in the
    Court of Sessions, by the Clerk of the Court over the
    the Magistrate or, in the Sessions Court, in the
    presence of the Clerk of the Court The entry in the
    register regarding delivery of the property should be

    …..36/-

    Judgment

    revn130.15

    36

    countersigned by the Magistrate or, in the Sessions
    Court, by the Clerk of the Court.

    (b) The following shall be treated as valuable
    properties:

    (i) All cash consisting of current coins and currency
    notes irrespective of the total value;

    (ii) Gold and silver coins and currency notes
    withdrawn from circulation or which have ceased to
    be legal tender;

    (iii) Counterfeit coins and currency notes;

    (iv) Gold, Silver and Platinum in whatever form
    including articles or ornaments thereof;

    (v) Precious stones, pearls and corals including articles
    or jewellery made from or set with these;

    (vi) Wrist watches, time-pieces, transistors, fountain-

    pens and such other costly articles of luxury;

    (vii) Curios and antiques of considerable value;

    (viii) Opium, Ganja and other narcotics;

    …..37/-

    Judgment

    revn130.15

    37

    (ix) All valuable securities, including Government and
    other promissory notes negotiable instruments of all
    kinds, debenture and share certificates security deeds
    and deposit receipt and certificates;

    (x) Title deeds relating to immovable property;

    (xi) Important original documents; and

    (xii) Such other articles which the Magistrate or the
    Judge thinks should be regarded as valuable articles
    having regard to their utility and value, and the
    attraction the articles have for the public generally.

    71. All Judicial Magistrates and clerks of the Court of
    Session shall have a test check of 10 percent of the
    items of property every month and a complete check
    once in six months in case of non-valuable muddemal
    property with reference to property register. They shall
    verify the valuable property with reference to valuable
    property register at least once a month. They shall
    make an endorsement with date about such
    verification, in the remarks column of the above
    register and also make a report to the Sessions Judge
    every month of having verified the valuable muddemal

    …..38/-

    Judgment

    revn130.15

    38

    property and every six months of having verified the
    other muddemal property.

    73. (1)(a) As the scope for loss of muddemal property
    is greater in the case of disposed of cases, the
    Presiding Officer should see that the property in non-
    appealable cases is disposed of as soon as possible
    after such cases are decided

    (b) In appealable cases, where the appeal lies to the
    Sessions Court or the District Magistrate, the
    muddemal property may be disposed of after a period
    of 90 days from the date of the decision of the case, if
    in the meanwhile no intimation of an appeal having
    been fled has been received, but if such animation is
    received before that period, such property shall not be
    disposed of until the appeal is decided.

    (c) In appealable cases, where the appeal lies to the
    High Court but arises from the Metropolitan
    Magistrate’s Court, the muddemal property may be
    disposed of alter a period of 180 days from the date of
    the decision of the case, if in the meanwhile no
    intimation of an appeal having been filed in the High
    Court has been received but if such an intimation is
    received before that period, such property shall not be

    …..39/-

    Judgment

    revn130.15

    39

    disposed of until the appeal is decided by the High
    Court.

    (d) In appealable cases, where the appeal lies to the
    High Court but a from the Sessions Court, the
    Muddemal property may be disposed of after a period
    of one year from the date of the decision of the case, if
    in the meanwhile no intimation of an appeal having
    been filed in the High Court has been received, but if
    such an intimation is received before that period, such
    property shall not be disposed of until a period of one
    year expires from the date of the decision of the
    appeal to the High Court, and if in the meanwhile an
    intimation is received by the Sessions Court of an
    appeal having been filed before the Supreme Court,
    such property shall not be disposed of until the appeal
    is decided by the Supreme Court.

    (2) Muddemal should be restored, when a non-
    appealable sentence is passed on the expiration of two
    months from the date of the sentence, except in the
    case of livestock, or property subject to speedy and
    natural decay, which may be restored at once, and
    except in cases in which a bond is executed under sub

    …..40/-

    Judgment

    revn130.15

    40

    section (2) of Section 452 of the Code of Criminal
    Procedure, 1973.

    (3) In every case, after the expiry of the respective
    periods mentioned in that behalf in sub-paragraphs
    (1) and (2) above, the Magistrate should issue a
    notice in duplicate or by a Registered Post A.D. or both
    to the person entitled to receive back the muddemal
    property and fix a date for appearance of such person
    for receipt of the property. In case of dispute or doubt
    regarding the identity of the claimant, the Court may,
    in its discretion, direct the persons claiming claiming
    to be entitled to receive the property under the orders
    of the Court, to furnish such security as it deems fit for
    return of the property or its value. If, after intimation,
    the person fails to appear before the Court to receive
    the muddemal on the fixed date or, if due to want of
    address or otherwise it is not possible to give the
    notice to the said person, the muddemal should be
    sold at his cost by public auction and the amount so
    realized be credited to Criminal Deposits. No sale will
    be necessary in the case of property which consists of
    cash only. The fact of issue of the notice as above, of
    appearance of the claimant on the date fixed for
    receipt of the Muddemal Property and actual delivery

    …..41/-

    Judgment

    revn130.15

    41

    of the property to the recipient on that date or any
    other date to which the matter may be adjourned,
    should be entered in the Property Register.

    Provided that if the value of the property is less than
    Rs.100 the person entitled to receive back the
    muddemal property may be served with a notice
    issued under certificate of posting.

    (4) A quarterly report should be submitted to the
    Sessions Judge along with the one referred to in
    paragraph 71, to the effect that the muddemal
    property in cases decided six months prior to the date
    of the report has been disposed of. The report should
    also state the number of cases in which the muddemal
    property remained to be disposed of, with the
    necessary explanation therefor.

    In order to enable the Presiding Officers and the
    Clerks of the Courts to verify the muddemal property
    with reference to the entries in the Property Register,
    on the first of every month, the Senior Clerk in the
    Judicial Magistrates’ Courts and the Nazir in the
    Sessions Court should prepare the Balance Sheets of
    undisposed of Muddemal Property, showing only the
    numbers of the cases, the years and the serial numbers

    …..42/-

    Judgment

    revn130.15

    42

    in the Property Register. It is, however, not necessary
    to copy out the details of the articles therein. Every
    day new additions, if any, should be entered therein
    and the entries of the cases from the Balance Sheets in
    which Muddemal Property has been disposed of
    should be struck off.

    The Senior Clerk and Nazir should obtain the
    signatures of the Presiding Officers and the Clerks of
    the Courts respectively on such Balance Sheets and the
    same should be kept handy by the Muddemal Clerks.

    The Judicial Magistrates and the Clerks of the Courts
    should verify the Muddemal Property with the help of
    the Balance Sheets. The Senior Clerks and the Nazir
    should be held solely responsible for the preparation
    and the correctness of the Balance Sheets.

    All the Judicial Officers and the members of the staff
    should bear in mind that it is their duty to see that
    proper precautionary measures are taken every time
    scrupulously for prevention of thefts of muddemal
    properties from their Courts.

    Whenever the Clerks in charge of Muddemal articles is
    transferred or if any charge is made in his duties, the

    …..43/-

    Judgment

    revn130.15

    43

    said Clerk should hand over the Muddemal articles to
    the clerk taking over and the latter should take such
    Muddemal articles in his charge after verifying the
    same with reference to the Property Register, (which
    includes both Property Registers viz, Valuable and
    General) and with reference to the monthly Balance
    Sheet.”

    36. The applicant has not challenged the fact that he was

    serving as Property Clerk at the relevant period. In view of

    the procedure laid down, he was under obligation to take

    entries in the property registers after due verification of the

    said properties and to give acknowledgment on the copy of

    the invoice challan. The proved documents which are already

    referred sufficiently show that it was the applicant who has

    received the said muddemal properties, but the same were

    not entered in the property registers. The evidence on record

    clearly demonstrates that the properties mentioned in the

    invoices, though accepted, not entered into the relevant

    …..44/-

    Judgment

    revn130.15

    44

    registers. There was final order of disposal of these properties

    after the disposal of cases, but the said properties were not

    found in the registers. The evidence of witnesses, as

    discussed above, clearly demonstrates that amount of

    Rs.2,45,989/- was entrusted to the present applicant to which

    he failed to deposit the same. CrCD Register No.7 i.e.

    relevant entry Exh.674 demonstrates that cash amount of

    Rs.1,155/- was received on 6.12.2001 and deposited on

    19.1.2002 vide CrCD NO.229 of 2002. Exh.675, the another

    entry, demonstrates that cash amount of Rs.52/- was received

    on 4.12.2001 and deposited on 19.1.2002. Entry Exh.676

    demonstrates that cash amounts of Rs.755/- and Rs.705/-

    were received on 28.12.2001, but the same were deposited on

    28.1.2002 vide CrCD Nos.232 of 2002 and 233 of 2002.

    37. Thus, Schedule of temporary misappropriation

    Exhs.678, 683, and 685 tallies with the entries in the property

    registers and the CrCD Registers. Thus, temporary

    misappropriation was of Rs.27,629/-. Similarly, regarding

    …..45/-

    Judgment

    revn130.15

    45

    general property register Exh.302 shows entries of property

    Nos.59 of 2002 and 24 of 2002 and, thereafter, pages were

    kept blank. In general property register No.10 Exh.303,

    entries are taken to property No.1 of 2003 to 156 of 2003 and

    page Nos.141 to 200 are kept blank. Similar is the position

    in respect of register No.11 Exh.304 wherein page Nos.26 to

    200 were kept blank and Exh.305, property register No.12,

    wherein also the pages were kept blank. Entry Nos.28 of

    2005 to 44 of 2005 in property register Exh.305 in respect of

    cash amount were scored, but the signatures of the Presiding

    Officer were not obtained. Thus, these entries demonstrate

    that the cash amounts were received as muddemal, but the

    said cash amounts were not transferred to the CrCD Registers.

    38. Thus, the entire evidence adduced by the prosecution

    sufficiently shows that the applicant has committed “criminal

    breach of trust” and misappropriated amount of Rs.2,45,113/-

    and temporary misappropriation was of Rs.46.629/-.

    …..46/-

    Judgment

    revn130.15

    46

    39. Section 409 of the IPC deals with criminal breach of

    trust by public servant, or by banker, merchant or agent,

    which is reproduced as under:

    “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.”

    40. What amounts to “criminal breach of trust” is provided

    under Section 405 of the IPC, which reads as follows:

    “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

    …..47/-

    Judgment

    revn130.15

    47

    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 wilfully suffers any other person so
    to do, commits “criminal breach of trust”.

    Explanation 1.– A person, being an employer 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.

    …..48/-

    Judgment

    revn130.15

    48

    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 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 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
    appropriate 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

    …..49/-

    Judgment

    revn130.15

    49

    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 rupees to A, with directions to A to
    invest the same in Company’s paper. A dishonestly
    disobeys the direction 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, though 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,

    …..50/-

    Judgment

    revn130.15

    50

    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.”

    41. Thus, to attract the offence under Section 409 of the

    IPC, two ingredients are to be established 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 dishonestly misappropriated or converted

    it to his own use to the detriment of the persons who

    entrusted it.

    42. A crucial question is, whether essential ingredients of

    the offence under Section 409 of the IPC are attracted.

    43. The evidence adduced is already demonstrated that

    involvement of the present applicant is established by the

    …..51/-

    Judgment

    revn130.15

    51

    prosecution on the basis of the evidence adduced before the

    court.

    44. Sections 407 to 409 of the IPC make special provisions

    for various cases in which property is entrusted to the

    enumerated categories of persons who commit the offence. To

    constitute an offence of criminal breach of trust, there must

    be an entrustment, there must be misappropriation or

    conversion to one’s own use, or use in violation of legal

    direction or of any legal contract: and the misappropriation or

    conversion or disposal must be with a dishonest intention.

    When a person allows others to misappropriate the money

    entrusted to him that amounts to a criminal breach of trust as

    defined by Section 405 . The section relatable to property in a

    positive part and a negative part. The positive part deals with

    criminal misappropriation or conversion of the property and

    the negative part consists of dishonestly using or disposing of

    the property in violation of any direction and of law or any

    contract touching the discharge of trust.

    …..52/-

    Judgment

    revn130.15

    52

    45. If the evidence in the present case is taken into

    consideration, it sufficiently shows that the amounts were

    entrusted to the present applicant and he has misused the

    same for his own use and this fact was rightly considered by

    the Trial Court as well as the First Appellate Court.

    46. The Hon’ble Apex Court has laid down litmus test to

    ascertain, whether case under Sections 409, 420, and 477A of

    the IPC is made out or not.

    47. In Criminal Appeal No.5/2010 decided on 13.12.2021

    (N.Raghvender vs. State of A.P.), it has been observed that,

    “the entrustment of public property and dishonest

    misappropriation or use thereof in the manner illustrated

    under Section 405 are a sine qua non for making an offence

    punishable under Section 409 IPC. The expression ‘criminal

    breach of trust’ is defined under Section 405 IPC which

    provides, inter alia, that whoever being in any manner

    entrusted with property or with any dominion over a property,

    …..53/-

    Judgment

    revn130.15

    53

    dishonestly misappropriates or converts to his own use that

    property, or dishonestly uses or disposes of that property

    contrary to law, or in violation of any law prescribing the

    mode in which such trust is to be discharged, or contravenes

    any legal contract, express or implied, etc. shall be held to

    have committed criminal breach of trust.”

    It has further been held that, “unless it is proved that

    the accused, a public servant or a banker etc. was ‘entrusted’

    with the property which he is duty bound to account for and

    that such a person has committed criminal breach of trust,

    Section 409 IPC may not be attracted. ‘Entrustment of

    property’ is a wide and generic expression. While the initial

    onus lies on the prosecution to show that the property in

    question was ‘entrusted’ to the accused, it is not necessary to

    prove further, the actual mode of entrustment of the property

    or misappropriation thereof. Where the ‘entrustment’ is

    admitted by the accused or has been established by the

    prosecution, the burden then shifts on the accused to prove

    …..54/-

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    revn130.15

    54

    that the obligation vis-à-vis the entrusted property was carried

    out in a legally and contractually acceptable manner.”

    48. In the light of the above said observations, 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.

    49. As far as “intention” is concerned, for which direct

    evidence would not be available, but certain tests envisage

    that it can be ascertained on the basis of circumstances on

    record.

    50. The evidence of witnesses clearly shows that the

    present applicant was acting as Property Clerk and was

    having custody and domain over the Court’s properties which

    include general properties and cash amounts. The cogent and

    reliable evidence adduced shows and demonstrates that the

    …..55/-

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    revn130.15

    55

    applicant working as Property Clerk accepted amounts and

    issued invoices, however he has not deposited the said

    amounts and has not transferred the same to CrCD Register

    and he has used the same for his personal use. Therefore,

    there is a sufficient evidence which conclusively establishes

    that the present applicant was incharge of the said properties.

    He has misappropriated the amounts which were deposited

    and some amounts were for temporary period used by him for

    his personal use and thereby he has committed the offence of

    “criminal breach of trust.”

    51. Admittedly, the present applicant was working in a

    Court where several litigants are approaching for getting

    justice. The society is having an utmost faith in the judicial

    system. In the light of the above faith, integrity and discipline

    from the court staff is expected. The integrity and honesty

    are essence of organizations like courts. The discipline is

    absolutely imperative and no compromise can be made as far

    as integrity of employees is concerned. Looking to the nature

    …..56/-

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    revn130.15

    56

    of services, which the applicant was rendering, sense of

    integrity, commitment, and discipline are paramount. It is the

    duty of the applicant to safeguard interests of the public who

    are approaching the court for justice. The act of the applicant

    is against interests of litigants and serious in nature and,

    therefore, considering the seriousness of allegations, no

    protection can be granted to him.

    52. The Hon’ble Apex Court, in the case of Anwar Chand

    Sab Nanadikar vs. State of Karnataka, reported in 2003 (10)

    SCC 521, observed that, “the court of law is described as “A

    Temple of Justice.” Logically, the Presiding Officer is “Pujak”

    and members of staff are “Sewaks.” It is, therefore, a matter

    of grave concern when a “Sewak” is alleged to have

    misappropriated funds of the temple.

    53. Learned counsel for the applicant has also raised an

    issue that in view of Section 197 of the CrPC, a sanction was

    not obtained before prosecuting the present applicant.

    …..57/-

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    revn130.15

    57

    54. Language and tenor of Section 197 of the CrPC makes

    it absolutely clear that sanction is required not only for acts

    done in discharge of official duty, it is also required for an act

    purported to be done in discharge of official duty and/or act

    done under colour of or in excess of such duty or authority.

    To decide whether sanction is necessary, the test is whether

    the act is totally unconnected with official duty or whether

    there is a reasonable connection with the official duty.

    55. Thus, protection under Section 197 of the Code has its

    limitations and protection is available when the act done by

    public servant is reasonably connected with discharge of his

    official duty and official duty is not merely a cloak for doing

    the objectionable act.

    56. A careful reading of Section 197 of the CrPC

    unequivocally delineates a statutory bar on the Court’s

    jurisdiction to take cognizance of offences alleged against

    public servants, save without the prior sanction of the

    …..58/-

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    revn130.15

    58

    appropriate government. The essential precondition for the

    applicability of this provision is that the alleged offence must

    have been committed by the public servant while acting in the

    discharge of, or purported discharge of, their official duties.

    The guiding principle governing the necessity of prior

    sanction stands well settled. The only enquiry required is,

    whether the impugned act is reasonably connected to the

    discharge of official duty. If the act is wholly unconnected or

    manifestly devoid of any nexus to the official functions of the

    public servant, the requirement of sanction is obviated.

    57. In view of the above settled law, admittedly, the act

    committed by the present applicant was not his official duty

    and, therefore, protection under Section 197 of the CrPC is

    not available with him.

    58. In the facts and circumstances of the present case and

    the evidence discussed above, offences under Sections 409,

    …..59/-

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    59

    466, and 477 of the IPC are made out against the present

    applicant.

    59. In the light of the well settled principles, while

    exercising revisional powers, the revisional court cannot

    reappreciate the evidence and cannot come to a different

    conclusion in a revision. The only scope of revision is to see,

    correctness, legality, or propriety of findings, sentence, or

    order.

    60. In the revisional jurisdiction of this court, re-

    appreciation of the evidence is not permissible. The Trial

    Court and the First Appellate Court have appreciated the

    evidence and there is a consistent finding as to involvement of

    the present applicant in the alleged offence and, therefore, I

    do not find any reason to interfere with the judgment and

    order impugned in the revision.

    61. In view of that, the revision being devoid of merits is

    liable to be dismissed and the same is dismissed. The

    …..60/-

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    60

    applicant shall surrender before the Superintendent of Central

    Jail, Nagpur to undergo the sentence on 17/04/2026.

    Revision stands disposed of.

    (URMILA JOSHI-PHALKE, J.)

    !! BrWankhede !!

    Signed by: Mr. B. R. Wankhede
    Designation: PS To Honourable Judge …../-
    Date: 08/04/2026 18:39:32



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