In order to establish an offence under section 408 I.P.C. there must be a dishonest misappropriation of the property entrusted. So long as the amount has not been recovered from the person of the respondent or from his house and there is no evidence that he has taken the amount, though he was answerable for the amount as cashier, it cannot be held that he has dishonestly misappropriated that amount. In a bank transaction due to the rush of the customers who come for transactions in the counter, the amount might have been missed by paying excess amount to the customers. Every such incident of missing of the amount in the counter cannot be said to be an act of criminal breach of trust, unless there exists material to implicate the incumbent for criminal offence.
Whoever does anything with the intention of causing wrongful gain or loss to any other is said to have committed that thing dishonestly. Therefore in order to constitute an offence under sections 403 and 408 I.P.C. there must be a wrongful gain to the person who commits the offence or there must be wrongful loss to another person. Thrust of the provision is to the gain or loss. In these circumstances it is important to note that so long as the money has not been recovered either from the person or from the house of the respondent it cannot be said that he had an intention of causing wrongful gain by taking the said amount. No witness has spoken that the amount was taken by the respondent. Therefore, as rightly observed by the Court below no offence of criminal breach of trust has been constituted in the facts and circumstances of the case and the Court below rightly acquitted the respondent. Sometimes the respondent may be liable for negligence but not liable for the offence, he was charged. In view of this we do not find any ground to interfere with the impugned judgment.
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Whoever does anything with the intention of causing wrongful gain or loss to any other is said to have committed that thing dishonestly. Therefore in order to constitute an offence under sections 403 and 408 I.P.C. there must be a wrongful gain to the person who commits the offence or there must be wrongful loss to another person. Thrust of the provision is to the gain or loss. In these circumstances it is important to note that so long as the money has not been recovered either from the person or from the house of the respondent it cannot be said that he had an intention of causing wrongful gain by taking the said amount. No witness has spoken that the amount was taken by the respondent. Therefore, as rightly observed by the Court below no offence of criminal breach of trust has been constituted in the facts and circumstances of the case and the Court below rightly acquitted the respondent. Sometimes the respondent may be liable for negligence but not liable for the offence, he was charged. In view of this we do not find any ground to interfere with the impugned judgment.
Bombay High Court
The State Of Maharashtra vs Mohan Radhkrishna Pednekar on 2 July, 1998
Equivalent citations: 1999 (5) BomCR 792, 1998 CriLJ 3771, 1999 (2) MhLj 459
1. While Criminal Revision Application No. 432 of 1984 has been filed by The Maharashtra State Co-operative Bank for setting aside the order of acquittal passed by the learned Metropolitan Magistrate, XXII Court, Andheri in Criminal Case No. 480/P of 1979 dated 25-7-1984 and for remanding the case for fresh trial to the learned Metropolitan Magistrate, Criminal Appeal No. 95 of 1985 has been filed by the State of Maharashtra against the same order of acquittal of respondent Mohan Radhakrishna Pednekar for the offence punishable under section 408 I.P.C. and for setting aside the said order.
Since both these matters arise out of the same set of facts and a common judgment we are disposing them off by one judgment.
2. The brief facts of the case runs as under:
The respondent was working as a Head Cashier at The Maharashtra State Co-operative Bank, Vile Parle (West) Branch, Bombay, from 12-10-1978 onwards. On 21-10-1978 the safe of the bank was closed by the respondent as cashier of the bank and the Manager of the said branch one Mr. Shantilal Becherdas Shah P.W. 1. At that time it was found that there was a cash balance of Rs. 71,326.13 paise. This cash balance was jointly verified by the respondent and the Manager P.W. 1. The safe used to be opened with two keys, one with the Manager P.W. 1 and another with the respondent. The operation of the safe used to be done by opening the safe first by the Manager by applying his key and thereafter by the respondent cashier by applying his key. Without these two keys the safe cannot be opened. The closing of the safe also undergoes the same procedure. The cash which was required for the transaction for a day used to remain with the respondent.
3. As pointed out earlier the net closing balance of the cash was Rs. 71,326.13 paise on 21-10-1978. The next day, being Sunday, i.e. on 22-10-1978 the Bank was closed. On 23-10-1978 when the safe was opened in usual manner the respondent was in possession of the sum of Rs. 71,326.13 paise. At the end of the day, on 23-10-1978 it was noticed that there was a shortage of Rs. 29,200/-. Immediately the entire staff of the bank became alert and tried to detect the shortage. The shortage was not detected, The explanation of the accused was obtained. According to that explanation, generally during the working hours only the cashier and one peon used to be there in the cabin which usually remained unlocked. According to the respondent the cash amount might have been stolen from the drawer of the table where he was working during the lunch time. This possibility cannot be ruled out that the cash might have been removed during the lunch interval as the cabin did not have a lock. He stated in his explanation that the amount which was lying in the drawer of the table where the respondent was working, absentmindedly, might have remained open and somebody might have removed the cash in the afternoon. This explanation was not acceptable to the Bank authorities.
4. Complaint, Exhibit P-7, therefore came to be lodged by the Manager of the Bank, P.W. 1, and P.S.I. Nalavade recorded the same and registered as F.I.R. at 7.30 a.m. on 24-10-1998. On receipt of the complaint P.S.I. Nalavade took up the investigation and further investigation was entrusted to P.I. Anpat. He has admitted that the complainant was present along with the respondent. The respondent has contented that there was a theft of cash and no property was found in his house when search was taken. Admittedly the property was not recovered from the possession of the respondent. The search of the house was taken immediately and no money was found from there also. After the investigation charge-sheet was filed. Before the Court the respondent denied the charges totally. Hence trial ensued.
5. After the trial the respondent was acquitted by the learned Magistrate on the ground that no offence has been made out under section 408 I.P.C. on the facts and circumstances of the case.
6. The facts of this case are more or less admitted by all the persons concerned. There was a missing of cash of Rs. 29,200/- from the counter. Prima facie, the cashier is answerable for this loss. According to the respondent the cash was missing but he has not misappropriated it. On the facts and circumstances proved in this case the respondent has not committed any offence of misappropriating the amount. Merely because the respondent was not able to produce the property which was entrusted to him it cannot be said that the respondent is liable for criminal breach of trust as defined under section 408 I.P.C. Section 408 I.P.C. reads thus:
"408. Criminal breach of trust by clerk or servant---Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
We are fully in agreement with the finding of the learned Magistrate.
7. In order to establish an offence under section 408 I.P.C. there must be a dishonest misappropriation of the property entrusted. So long as the amount has not been recovered from the person of the respondent or from his house and there is no evidence that he has taken the amount, though he was answerable for the amount as cashier, it cannot be held that he has dishonestly misappropriated that amount. In a bank transaction due to the rush of the customers who come for transactions in the counter, the amount might have been missed by paying excess amount to the customers. Every such incident of missing of the amount in the counter cannot be said to be an act of criminal breach of trust, unless there exists material to implicate the incumbent for criminal offence.
Criminal breach of trust has been defined under section 405 I.P.C., which reads thus:
"405. Criminal breach of trust.---Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"."
To constitute an offence of criminal breach of trust as rightly pointed out by the Court below there must be a dishonest misappropriation. Mere misappropriation will not amount to criminal breach of trust. It must be dishonest.
Dishonest misappropriation is again defined under section 403 I.P.C., which reads as under:
"403. Dishonest misappropriation of property.---Whoever dishonestly misappropriates or converts to his own use any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
'Dishonestly' has been further defined under section 24 of the Indian Penal Code, which reads as under:
"24. 'Dishonestly'.---Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
Whoever does anything with the intention of causing wrongful gain or loss to any other is said to have committed that thing dishonestly. Therefore in order to constitute an offence under sections 403 and 408 I.P.C. there must be a wrongful gain to the person who commits the offence or there must be wrongful loss to another person. Thrust of the provision is to the gain or loss. In these circumstances it is important to note that so long as the money has not been recovered either from the person or from the house of the respondent it cannot be said that he had an intention of causing wrongful gain by taking the said amount. No witness has spoken that the amount was taken by the respondent. Therefore, as rightly observed by the Court below no offence of criminal breach of trust has been constituted in the facts and circumstances of the case and the Court below rightly acquitted the respondent. Sometimes the respondent may be liable for negligence but not liable for the offence, he was charged. In view of this we do not find any ground to interfere with the impugned judgment.
8. In the result the appeal filed by the State is liable to be dismissed. We do so.
For the aforesaid reasons, Criminal Revision Application No. 432 of 1984 filed by The Maharashtra State Co-operative Bank is also dismissed respondent is on bail. His bail bond stands discharged.
9. Appeal by State dismissed.
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