S.409 IPC| Prosecution Must Prove Accused Committed Criminal Breach Of Trust Qua Property Entrusted In "Capacity Of Public Servant": Himachal Pradesh HC

The remarks were made by Justice Sandeep Sharma while adjudicating upon an appeal filed by one Shyam Lal, serving as a Process Server in the court of Naib Tehsildar at the relevant time, when he misappropriated the fine entrusted to him by the parties in the capacity of an officer of the Court.

Though the Appellant argued that at no point of time he was entrusted with property in the capacity of a public servant and that he was not authorized to collect the fine, the Court noted that the Appellant had himself admitted in his statement recorded under Section 313 CrPC, that he was a public servant and was working as a Process Server in the office of Naib Tehsildar.

"careful perusal of the evidence collected on record by prosecution, clearly reveals that the accused, who at the relevant time was working as a Process Server was entrusted with duty to serve summons upon PW-8 Sukh Dei and another person Sita Ram, who were imposed fine of Rs. 500/- and Rs. 250/- respectively on account of encroachment. Though the accused collected fine from both the persons, amounting to Rs. 500/- and Rs. 250/- respectively, but failed to deposit the same with the Government treasury," the Court noted in the facts of the case.

The Appellant had sought acquittal after setting aside the judgment of conviction passed by the Sessions Judge.

The counsel for the Appellant contended that the conviction and order of sentence passed by the trial Court cannot sustain in the eyes of the law as the conviction was not based upon proper appreciation of evidence. The counsel further stated that since report of Handwriting Expert never came to be proved in accordance with law, learned courts below ought not have held the accused guilty

The counsel also pointed out that since the alleged offence took place 27 years back, accused has turned 65 years of age and has undergone mental trauma. Thus, he urged that the court may consider extending benefit of Section 4 of the Probation of Offenders Act which denotes the Power of court to release certain offenders on probation of good conduct.

The counsel for the Respondent stated that the conviction of the accused was not solely on the basis of Handwriting Report. Rather, the same was based upon statements of material prosecution witnesses, who, in unison, had deposed before the trial court. The counsel further stated that this court has a very limited jurisdiction to re-appreciate the evidence, especially when learned counsel for the petitioner has not been able to point out any perversity in the same under S.397 CrPC.

Findings

On the perusal of facts and evidences, the court found out that the accused collected the amount (fine) but failed to deposit it further in the Government Treasury. Further, the testimony of prosecution witnesses could not be discarded since the defence was unable to contradict their statements during cross-examination.

"Cross-examination conducted upon this witness also nowhere suggests that the defence was able to extract anything contrary to what this witness stated in his examination-in-chief. Though, in the case at hand, accused set up a plea that he is innocent and has been falsely implicated in the case, but while making his statement under S. 313 CrPC, he never attributed any motive to PW-8 and P-9, qua his alleged false implication. Otherwise also, there is no evidence, if any, led on record by accused, suggestive of the fact that PW-8 and PW-9 were inimical towards him and to implicate him, falsely deposed against him," it added.

The Court further said that failure to compare Handwriting report with specimen writing and signatures would not mar the prosecution case given the "overwhelming evidence" led on record by prosecution.

Accordingly, the judgment of conviction was upheld. However, Appellant's plea for benefit of Section 4 of the Probation of Offenders Act, 1958 was allowed.

Case Title : Shyam Lal v. State of HP

Citation: 2022 LiveLaw (HP) 4

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