The State of Uttaranchal (now State of Uttarakhand) v. Brahma Pal Singh

perused the lower court record. (3) Prosecution story, in brief, accused/respondent Brahma Pal Singh was posted as Assistant Logging Officer with U.P. Forest corporation, Uttarkashi, Division New Tehri. He was looking after the work of Section Officer at Chamba. In the year 1992-93, he was found absent from the duty, and as such, relieved from the charge of Section Officer Chamba, with effect from

23.12.1992. Another Logging Officer one A.K.Joshi, was asked look after said work. On his taking over the charge it was found that out of the amount of ` 60,000/- entrusted to the accused Brahma Pal Singh as an advance money for meeting the casual expenses there was no account of expenditure of ` 31,785/-. On receiving report of said effect PW1 P Bhrama Nandan Divisional Logging Manager of the Corporation lodged First Information Report (Ex- A1) with the police at Police Station Tehri, where on 3 the basis of said report, check First Information Report (Ex-A6) was registered as Crime No. 41 of 1993, against accused Brahma Pal Singh relating to offence punishable under section 409 of I.P.C. The crime was investigated by PW6 Sub Inspector Rajendra Pal Madana, who was on completion of investigation submitted charge sheet (Ex-A5) against accused Brahma Pal Singh, for his trial in respect of offence punishable under section 409 of I.P.C. (4) The Chief Judicial Magistrate, Tehri Garhwal, on receipt of the charge sheet, after giving necessary copies to the accused, and hearing the parties framed charge of offence punishable under section 409 of I.P.C, on 06.06. 1996 against accused Brahma Pal Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 P Bhrama Nandan Divisional Logging Manager of U.P. Forest Corporation, Dehradun (complainant), PW2 Dinesh Chandra Uniyal (the then official of Logging Devision New Tehri), PW3 Buddhi Singh (who was posted in Uttarkashi as AG-2 with U.P. Forest Corporation), PW4 Surender Dutt Belwal Accountant of U.P. Forest Corporation New Tehri, PW5 Jagmohan 4 Ghildiyal Deputy Manager/Field Officer of State Bank of India, Dehradun, PW6 Rajendra Pal Madana (who investigated the crime) and PW7 Head Constable Nav Kishore (who made necessary entries in General Dairy and prepared the check report of First Information Report). The oral and documentary evidence was put to the accused under section 313 of Cr.P.C., in reply to which he admitted that whatever amount of cash was received by him he had accounted for the same to the department. He further pleaded that he did not misappropriate any amount. In defence accused got himself examined as DW1 Brahma Pal Singh after obtaining permission under section 315 of Cr.P.C., and explained the expenditure made by him of the cash entrusted to him. The trial court after hearing the parties opined that accused has explained the expenditure of the cash entrusted to him, as such, it cannot be said that he committed any criminal breach of trust. Accused Brahma Pal Singh was acquitted of the charge of offence punishable under section 409 of I.P.C. Aggrieved by said judgment and order dated

08.06.2001, passed by Chief Judicial Magistrate, Tehri Garhwal, in Criminal Case No. 1382 of 1993, State preferred this appeal against acquittal of the accused. 5 (5) This Court issued notice accused/respondent, granted leave to appeal, after condoning the delay in filing the same. Appeal was admitted and lower court record was summoned. (6) It is admitted to the parties that accused Brahma Pal Singh was posted as Assistant Logging Officer, Uttarkashi, and had also charge of Chamba Office since February 1992. It is also not disputed that some advance amount for meeting expenses for the official work used to be given to the person holding charge of Section Officer in Chamba Office. It is proved by PW1 P Brahma Nandan Divisional Logging Manager that ` 60,000/- were paid in November 1992, as advance for meeting expenditure to the accused. PW4 Surendra Dutt Belwal Accountant of U.P. Forest Corporation has corroborated the fact that in November 1992, one cheque of amount of ` 15000/- and another cheque ` 45,000/- towards disbursement of salary of the employee and other miscellaneous expenses was issued. PW5 Jag Mohan Ghildiyal Deputy Manager/Field Officer of State Bank of India has proved the fact that said amount was withdrawn from the bank. As such, so far as the entrusted 6 amount of ` 60,000/- to the accused is concerned, it is established that the same was given to the accused. Now, the question is whether accused Brahma Pal Singh, the then Assistant Logging Officer, who was looking after the work of Section Officer, Chamba, committed breach of trust by misappropriating the sum entrusted to him. In the cross examination, PW1 P Bhrama Nand, the Divisional Logging Manager of U.P. Forest Corporation, has admitted that out of the amount entrusted salary of the employee was also to be distributed for the month of November, 1992. It is pertinent to mention here that it is not a case of prosecution that salary for the month of November 1992, was not distributed to the employees of the Corporation. What is alleged is this that account of the entrusted amount was not given after the accused was relieved of the charge. However, it is stated by PW1 P Brahma Nandan the Divisional Logging Manager of U.P. Forest Corporation in his examination in Chief itself that in March 1993, the accused deposited ` 14,000/- in cash in the office of the Divisional Logging Manager. (7) To explain the expenditure of the amount entrusted DW1 Brahma Pal Singh has stated that 7 under oral orders of Divisional Logging Manager he made payment of ` 16,000/- to a contractor named Rajendra Prasad on 11.11.1992. However, the said contractor was later got black listed and department stopped his payment. The witness (DW1) has further stated on oath that on 30th of November 1992, he paid ` 5,250, to Sher Singh Rawat labour towards official expenditure for which the receipt was obtained from him. Similarly ` 5,000/- were paid to Kamleshwar Prasad Belwal on 14.11.1992, and all these entries are in the cash book of the office. PW1 Brahma Pal Singh further stated that the Divisional Logging Manager told him that even after accepting his explanation ` 14,000/- still remained out standing, which he deposited on 18.03.1993. (8) Learned counsel for the State/appellant argued that by depositing the amount as above accused cannot escape punishment for committing criminal breach of trust. On the other hand, learned counsel for the accused/respondent argued that the entire remaining amount was deposited in March 1993, before the First Information Report could be lodged in April 1993, and placed reliance in the case of Ravindra Kumar Dey vs. State of Orissa AIR 1977 Supreme Court 170, in which it has been held 8 that where the accused is able to prove that the explanation of expenditure was probable and reasonable, it cannot be said that accused had misappropriated the amount entrusted to him. Similarly in Narendra Pratap vs. State of U.P. AIR 1991 S.C. 1394 it has been held that where accused has deposited unexplained amount of expenses before investigation started it is not necessary to convict the accused. (9) Having considered the rival submissions and after going through the statements of the prosecution witnesses, and that of the defence witness, and the documentary evidence including copies of the cash register (Ex-A2 and Ex-A3) and further considering the receipt of payment of ` 14,000/- proved on the record, this Court finds that there appears no criminal intention of the part of the accused in the expenditure made by him of the amount entrusted to him in the official work done by the department. From the statement of PW1 Bhrama Nandan Divisional Logging Manager and DW1 Brahma Pal Singh (accused) Assistant Logging Officer it is clear that after listening to the explanation of the accused the manager allowed him to pay balance of ` 14,000/- (which was unexplained amount), and the 9 accused deposited the same as directed by superior officer, and as such it cannot be said that the ingredients of the offence punishable under section 409 of I.P.C., are made out. It is relevant to mention here that to constitute the criminal breach of trust dishonest intention is necessary as evident from definition given in section 405 of I.P.C. (10) For the reasons as discussed above, this Court finds no illegality in the order passed by the trial court that the charge of offence punishable under section 409 of I.P.C., is not proved against the accused/respondent. (11) Therefore, the appeal is liable to be dismissed. Accordingly, the same is dismissed. Lower court record be sent back. Dt.21.12.2012 N.P (Prafulla C. Pant, J.)