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Tukaram Balaji Kadam and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 205 of 1981
Reported in1984(2)BomCR457
ActsIndian Penal Code (IPC), 1860 - Sections 23, 24, 405 and 409
AppellantTukaram Balaji Kadam and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateS.G. Samant, Adv.
Respondent AdvocateC.M. Kothari, P.P.
criminal - breach of trust - sections 23, 24, 405 and 409 of indian penal code, 1860 - appeal against conviction under section 409 - government apartment was given in possession of accused for particular purpose - government continued to be owner of such apartment - order of allotment directed premises be used for himself and family - accused asked somebody else to go into possession in violation of legal contract - accused received wrongful gain to himself under section 405 - handing over possession to some person whom government had no intention to allot resulted in wrongful loss to government - held, appeal against order of conviction liable to be dismissed. - maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik,.....sharad manohar, j.1. this is an appeal filed by the original accused against the order of conviction and sentence passed by the learned additional special judge, bombay, convicting the appellant of the offence under section 409, indian penal code but sentencing him only to pay fine of rs. 1500/- or in default to suffer r.i. for 4 months.2. when the appeal reached hearing before me and when the prosecution case was stated by the learned counsel for the appellant, i was prima faice of the view that a somewhat positive and refreshing approach was taken by the officers concerned who had conceived of this prosecution and after going through the judgment of the lower court with the help of the learned counsel for the defendant, i was further satisfied at least prima faice that there was a bold.....

Sharad Manohar, J.

1. This is an appeal filed by the original accused against the order of conviction and sentence passed by the learned Additional Special Judge, Bombay, convicting the appellant of the offence under section 409, Indian Penal Code but sentencing him only to pay fine of Rs. 1500/- or in default to suffer R.I. for 4 months.

2. When the appeal reached hearing before me and when the prosecution case was stated by the learned Counsel for the appellant, I was prima faice of the view that a somewhat positive and refreshing approach was taken by the officers concerned who had conceived of this prosecution and after going through the judgment of the lower Court with the help of the learned Counsel for the defendant, I was further satisfied at least prima faice that there was a bold and refreshing approach to the question shown even by the learned Judge in dealing with a case which is almost archetypical of the social evils which threatens to be entrenched deeper and deeper into our mode of living and thinking. I expressed this mere prima facie view to the learned Counsel and he confidently started his argument with the assurance to this Court that he would dispel this Court's view after he had narrated all the relevant facts of the case and the position; of law that had a bearing on the same. In fact not only lengthy but even repeated arguments were advanced by the learned Counsel in this behalf and in order to enable him to present all the aspects of the question before this Court in defence of his client, extensive accommodation was given to him by adjourning the hearing of the appeal from time to time. Nothing that has been said or pointed by him, however, has had any effect other than the one of firmly confirming the earlier view occurring to this Court prima faice.

As mentioned above, the question involves a widespread social evil. I will presently expound the nature of the said evil.

3. The facts which led to the prosecution are as follows :---

The appellant, who will be referred to hereafter as the 'accused', had been serving as a Machine Mukadam in the Government Central Press, Bombay from the year 1969. The prosecution case is that as such he is a public servant Whether he is a public servant or not is a question not very much relevant in this appeal. Fact, however, remains that he was a government servant from the year 1969. As is well-known one of the perquisite of the Government service is that residential accommodation is being made available to some of the Government employees. However, getting such accommodation is almost akin to getting a windfall because the number of the needy Government employees vastly exceeds the number of residential units available with the Government for being made available for the residence of such employees. From the very nature of things, no particular evidence is necessary for stating, and no controversy on this point whatsoever was raised by the learned Counsel for the defence, that there is a long waiting list of the Government employees who are hankering after some kind of accommodation or the other which would give them some shelter in this metropolis groaning under the burden of its ever-expanding populace. Hundreds of them keep waiting for months and years together for their turn to arrive.

After a period of nearly 6 years, the turn of the accused arrived. On 6th March, 1975, an order was passed by the Department of General Administration, Government of Maharashtra, ordering for him an allotment of a government block, namely Block No. IV in Building B-238 situate in the Government employees' colony, Bandra (E), Bombay. The order itself states that these various apartments are being allotted to the various employees in the process of their distribution amongst the Class III employees of the Government. It is mentioned that if the allottee is not employed as a Class III employee of the Government of Maharashtra, the allotment was to be deemed as rescinded ipso facto. The order further mentions that the possession of the apartment had to be taken by the allottee within one week from the date of allotment. What is further important is that there is a specific warning contained in the order that if such possession was not taken by the allottee within one week from the date of the order for any reasons whatsoever, he will not be entitled to the allotment at any time. The significance of this stringent condition will be mentioned presently.

It is further mentioned in the order that the allotted residential accommodation could be used by the Government employee only for his own residence and for the residence of the members of his family. What is meant by members of the family is also clarified, reference in that behalf is made to the B.C.S. Rule 9(18). It is further mentioned that if the employee is desirous of allowing any person other than such members of his family to stay in the premises with him and his family, a prior permission in writing in that behalf had to be taken by the allottee from the Government to allow such person to reside with him. No room is left for any doubt in the order that each of the conditions imposed in the said order upon the employee concerned is meant to be obeyed. There is nothing directory about it; everything is mandatory and for the very good reasons. I will mention those reasons while discussing the nature of the social evil.

4. The prosecution case is that in pursuance of this allotment order, the accused did receive possession of the apartment in question allotted to him on 11-3-1975, well within the period as directed by the order. He not only executed the possession receipt in that behalf but also filled in and filed a declaration form mentioning the names of the members of his family depending upon him. The other members of his family were his wife Parvatibai, his three sons Prakash, Vasant, Nivrutti and his daughter, Mangala.

There is no dispute that Block No. 4 allotted to him consists of two rooms and a kitchen and a balcony in addition to the sanitary block.

5. The prosecution case further is that in the year 1976 the Anti-Corruption Bureau received a report regarding the practice of some of the employees in the Government Central Press of sub-letting the Government quarters allotted to them at Bandra as well as Kala Chowky and of profiteering at the Government expense. In pursuance of the report, investigation was conducted in connection with the various Government quarters. So far as the block allotted to the accused was concerned, P.S.I. Salvi visited the premises only to find that not the accused at all but one Dr. Mrs. Ranganayaki was in occupation of the entire block as a sub-tenant of the accused since February 1977. P.S.I. Salvi submitted his report and on the basis of the said report an F.I.R. was filed by P.I. Shri Maideo on 17-3-1978 at the relevant Police Station as regards the offence of criminal breach of trust under section 409, Indian Penal Code and as regards the criminal misconduct under sections 5(1)(c) and 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. It was on the basis of this F.I.R. that an offence was registered by Sub-inspector Desai on the same date 17th March, 1978 and after duly obtaining the sanction for investigation, the investigation was carried on. During the course of the investigation the statements of Dr. Mrs. Ranganayaki and others were recorded. Thereafter, sanction was duly obtained from the Manager of the Government Central Press for the prosecution of the accused for the above-mentioned offences and thereafter a charge-sheet was duly filed against the accused in the appropriate Criminal Court.

The case of the prosecution, briefly, is that in allotting the Government quarter to the accused, the accused was in fact and in law entrusted with valuable property by the Government to be used strictly for the purpose of residence of himself and the members of his family mentioned in the declaration form. For that purpose, he was to pay a paltry sum of Rs. 110/- per month to the Government; but the accused parted with possession of the said apartment to Dr. Mrs. Ranganayaki and received Rs. 110/- per month from her. The property that was entrusted to him by the Government was, thus, mis-used by him and by that mis-user, he had made a wrongful gain of Rs. 110/-. This is how the prosecution invoked the provisions of section 409, Indian Penal Code. Further, according to the prosecution, this was also a case of criminal mis-conduct under sections 5(1)(c) and 5(1)(d) read with section 5(2) of the Prevention of Corruption Act

6. Much ado was made about the paucity of the charge framed against the accused and, hence, I may refer to that aspect of the argument a little later. Referring to the charges as they stand, the first charge against the accused was that the accused had been entrusted with and was having a dominion over the said apartment and that during the period between February 1977 and May 1978 he ad allowed Dr. Mrs. Ranganayaki to occupy the said apartment and had made a pecuniary gain to himself dishonestly by collecting Rs. 110/- p.m. from her use of the said premises in violation of the condition laid down in the order in accordance with which the said property was to be used and that this act on his part amount to criminal breach of trust, an offence punishable under section 409, Indian Penal Code.

Charges Nos. 2 and 3 related to offences under the Prevention of Corruption Act. But it is unnecessary to refer to them because there has been an order of acquittal in favour of the accused on those charges and the order acquittal has now become final.

7. The main evidence led by the prosecution consisted of the evidence of Dr. Mrs. Ranganayaki (P.W. 2), the evidence of P.S.I. Salvi (P.W. 3) as also that of P.I. Maideo, who had filed the F.I.R. The evidence of Dr. Mrs. Ranganyaki, if believed, clearly shows that the accused had put her in exclusive possession of the apartment in question during the period between February 1977 and May 1978, that she had vacated the apartment sometimes in May 1978, that the accused had been receiving (at least) Rs. 110/- from her per month and that during that period, the accused was not residing in the premises at all either all alone by himself or along with the members of his family nor was any other member of his family residing in the premises during the said period.

8. The defence of the accused was something which has turned out to be the tissues of lies. He admitted that he had allowed Dr. Mrs. Ranganayaki to occupy the premises in question, but he contended that she was not in exclusive possession of the apartment at all. According to him, she was allowed to stay in only one of the rooms in the said apartment and that he himself continue to live in the other part of the apartment. He further contended that he had allowed her to occupy the premises just gratis and that he received not a paise from her as rent or compensation. His plea was that he had accommodated her only for a short time as per the solicitations of his family physician Dr. Dhairyawan for a short time and that after the expiry of the period when he asked her to vacate the premises she refused to respond and, on the contrary, started nourishing a grudge against him and that was the reason why she had been falsely deposing against him about her exclusive possession and about the payment of compensation by her.

9. The contentions raised on behalf of the defence before the lower Court were the following :---

(a) Firstly, it was contended that Dr. Mrs. Ranganayaki was never in exclusive possession of the premises and that the accused had parted with possession of the same;

(b) the accused had not made any wrongful gain to himself because in fact he had not received even a paise from the Doctor as rent or compensation;

(c) the evidence given by Dr. Mrs. Ranganyaki trying to falsify the above contentions of the accused was the result of the grudge entertained by Dr. Ranganayaki against him in the circumstances mentioned above;

(d) in any event, there was no 'entrustment' of any property to the accused by the Government. Hence, no question of criminal breach of trust arose;

(e) there existed no mens rea on the part of the accused because the accused had accommodated the Doctor out of humanitarian considerations;

(f) there was no dishonesty on the part of the accused because no wrongful gain was received by him in this behalf, nor was any wrongful loss caused to the Government in this behalf; and

(g) the remedy of the Government lay by way of an order for eviction of the accused under the Government Premises Eviction Act and not by way of criminal prosecution.

10. The trial Court accepted the evidence of Dr. Mrs. Ranganyaki entirely. The learned Judge turned down the argument that her evidence was not corroborated by pointing out that Dr. Ranganayaki was not a complainant in this case. He observed that these proceedings were not at all instituted or initiated at her instance. As a matter of fact, she has vacated the premises in the year 1978, long before she had given evidence in the proceedings. The learned Judge found that there was intrinsic circumstantial evidence which fully corroborated her contention that she was put in exclusive possession of the premises and that she had been paying Rs. 110/- as rent or compensation to the accused. The learned Judge, therefore, was of the view that so far as the factual position urged by the prosecution was concerned, that position was made fully good by the evidence led by the prosecution. The learned Judge negatived the plea that there was no entrustment of the property in favour of the accused holding that there might not have been any wrongful loss caused to the Government, but when the accused accepted the sum of Rs. 110/- p.m. from the Doctor, in fact he had enriched himself by a wrongful gain of the said amount per month. He negatived the contention based upon the provisions of Government Premises Eviction Act observing that after all the civil and criminal remedies were concurrent remedies and the aims of both of them were entirely different. The learned Judge, however, accepted the defence contention that the provisions of Corruption Act could not be invoked by the prosecution, because the offence was not committed by the accused in his capacity as a public servant, although he was in fact a public servant on the date of the offence. The learned Judge, therefore, convicted the accused of the offence under section 409, I.P.C.; but in view of the unprecedented character of the prosecution he did not impose any sentence of imprisonment upon him but let him off with a light fine of Rs. 1500/- only.

11. Before me, at the very outset, Shri Samant, the learned Counsel for the accused, stated specifically and categorically that he was not disputing and was specifically conceding the two factual positions. Firstly, he conceded that the evidence of Dr. Mrs. Ranganayaki to the effect that during the period between February 1977 and May 1978 she was in exclusive possession of the entire premises could not be found fault with. Secondly, he conceded that her evidence that she was paying Rs. 110/- per month also could not be cavilled at. The learned Counsel specifically proceeded to advance his quite vehement and repeated arguments, made after taking adjournment after adjournment for bringing various authorities on the points, upon the explicit concessions that the findings recorded by the learned Judge about the exclusive possession of Dr. Mrs. Ranganayaki and about the payment of compensation of Rs. 110/- per month to the accused were unimpeachable findings.

The concessions, to my mind, were not only justified but unavoidable. I have gone through the entire evidence on record and after going through the evidence of Dr. Mrs. Ranaganayaki as also the other evidence, I find that no room is left for doubt that it is just inconceivable that Dr. Mrs. Ranganayaki would have been living in the premises along with the accused during the relevant period or that she had been allowed to reside in the premises without payment of any monies to the accused. I am, therefore, proceeding to consider the contentions of the learned defence Counsel on the assumption that the above two positions have been fully made good by the prosecution not only because of the concessions but because of the nature of evidence on record. The concession given by the learned Counsel only obviate the necessity of elaborate discussion of the evidence on record.

12. I will now turn to the other arguments advanced by the learned Counsel. His first contention was that in the instant case the prosecution was very much misconceived because there existed no entrustment of any property by the Government to the accused which was the indispensable postulate for the operation of section 405 or section 409, Indian Penal Code. In support of his contention, he relied upon the judgment of the Supreme Court in the case of Chellor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin, : AIR1953SC478 . It was held in that case that :

'To constitute an offence of criminal reach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation of dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself of by someone else which he willingly suffered to do.'

It was further held there that :

'the ownership or beneficial interest in the property in respect which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some was for his benefit.'

Relying upon this view taken by the Supreme Court, contention urged was that in the instant case there is no entrustment of any property by the Government to the accused at all. According to the learned Counsel, the accused was just a tenant of the Government and when a landlord leases the premises to the tenant, there is no entrustment by him to the tenant. If the tenant sub-lets the premises even in violation of any condition contained in the agreement of lease, he may be committing some civil wrong or contractual wrong; no element of criminality is involved because there is no misuse of any property 'entrusted' to the tenant.

13. In the first place, the very assumption of the learned Counsel that the accused was a tenant of the Government is itself devoid of any basis whatsoever. When the Government allots the premises to its employees, it may be that the employee is required to pay some amount as occupation charges to the Government. But that fact by itself does not make the allottee a tenant of the Government. The entire intendment of the allotment is the fulfilment of the public duties undertaken by the Government for the welfare of the people in general and of its own employees in particular. My attention was not invited to any document or any piece of evidence on the strength of which it could be inferred that a landlord-tenant relationship was established between the Government and the accused by virtue of the allotment of the tenement to the accused.

Illustrations can be found galore for the purpose of pin-pointing the fallacy contained in the argument that the accused was constituted the tenant of the premises by virtue of the allotment order. It is well-known that some of the premises allotted to its employees do not even belong to the Government. It is well-known that the Government often requisitions various tenements from the owners or tenants and make them available to its employees. The employees do not become the Government's tenants by virtue of such allotment. When Government takes them on lease from others and allots them to its own employees, the Government is in a sense a statutory lessee of the owner. But the employee to whom the tenement is given for occupation does not become a lessee of the Government. If this was to be otherwise, he would become the sub-tenant vis-a-vis the original tenant and anomalous situation would arise under the Bombay Rent Act, by virtue of which although the Government could not have claimed any right against the original owner, except those arising out of the Land Requisition Act, a sub-tenant itself might be able to claim rights of a sub-tenant against the owner under section 14 of the Rent Act in conceivable circumstances.

14. All this discussion, however, is purely hypothetical. No evidence has been led by the accused to show that he was made a tenant in respect of the premises held by the Government by virtue of the allotment order. My attention was not invited to any authority which takes the view that merely because an employee is required to pay certain portion of his salary for the purpose of the occupation of the premises allotted to him, he becomes a tenant of the Government in respect of the premises. A lease after all is a matter of intention off the parties. The intention of the Government is clear and unambiguous; the intention is that its employees who are supposed to be working for and giving of their best to the Government should have decent roof over their heads and should not be required to hitch their tents on the pavements or keep their belongings in the garrets. The purpose is welfare purpose, not the pecuniary purpose of the ordinary contracting parties. No doubt an element of contract does exist in this transaction. I will presently refer to the said element of contract; but the point is that the relationship is not a commercial relationship of ordinary landlord and tenant. The premises would not have been given to the employee unless he was a Government employee. The premises will not be allowed to continue with the employee the moment he ceases to be the Government employee. The return that he is required to pay is generally commensurate with the salary received by him, in fact charged on the basis of certain percentage of his monthly salary. The intention of creating a landlord and tenant relationship between the Government and its employees, within the meaning of the Transfer of Property Act or the Rent Act can, therefore, be never imputed to the parties.

15. But this apart, the point is that even the premises given into the possession of the tenant can be said to be 'entrusted' to him within the meaning of section 405 of the Penal Code. A simple illustration which I give to the learned Counsel during the course of the arguments is enough to clarify this point.

'A' is the owner of the apartment. 'B' is his arch-enemy indulging in underworld activities. He has an eye on those premises belonging to 'A' and wants to use the premises as a den of his underworld activities. 'A', a respectable person refuses to let out the premises to 'B' come what may and has a face set against letting 'B' into the possession of the premises. But he wants to let it out to some other decent person. Supposing 'C' goes to 'A' and offers to take the premises on rent. 'A', out of abundant caution, puts a strict condition that he should use the premises for his own occupation and must not part with possession of the same in anybody else's favour, 'C' agrees to all these conditions. But after getting into possession, suppose 'C' hands over the premises to 'B. Has not 'C' committed criminal breach of trust? Has not 'C' violated the directions of the legal contract which he has made touching the discharge of the trust reposed unto him by 'A'

It is futile in such a case to say that 'A' has got a civil remedy against 'C'. He does have it. For the matter of that, practically every criminal wrong committed against any person can be, to a certain extent, got remedied by getting relief from civil courts. But is the criminal remedy barred just because there is a civil remedy existing. As I will presently point out, such argument was advanced before the Hon'ble Supreme Court in the famous Akhaney's case (58 Bom.L.R. p. 1026) and the same was repelled by the Supreme Court in no uncertain terms.

16. The decision of the Supreme Court in Chellor Nambudiri's case is readily distinguishable. In that case the person who was appointed by the High Court as the Receiver of the mill and who was to sell the bales to the shop-keeper at the market price received not only the market price but additional amount from the shop-keeper which he retained that extra-amount with himself. It was held that so far as the extra amount was concerned neither the shop-keeper nor the High Court had entrusted that amount to the Receiver. It was held that the sum might have been received by the accused Receiver as an illegal gratification. But there arose no question entrustment of the amount. What was held was that the offence was of bribery and corruption, not of criminal breach of trust.

The simplest manner in which the above decision can be distinguished is to raise the following question :

Supposing the Receiver appointed by the High Court had retained with himself the entire amount of the price of bales and had failed to hand it ever to the High Court by stating that he had not received it at all, could it be said that he had not committed criminal breach of trust? That would be an impossible view. There was certainly an entrustment of that much amount both by the shop-keeper to the Receiver or implicitly by the High Court to the Receiver. When the High Court gave the Receiver the power to collect the same price from the shop-keeper, there was an implicit trust reposed by the High Court in the Receiver in respect of the money which the High Court was to receive directly from the shop-keeper and which the Receiver received from the shop-keeper as the agent of the High Court.

The present case is one of such un-equivocal entrustment. Whether we call it an express entrustment or an implied entrustment, fact remains that it is an entrustment; an entrustment of the apartment to the accused which he was duty-bound to use in the manner injuncted by the order of allotment and in no other way. The judgment of the Supreme Court in Nambudiri's case, therefore, does not help the accused at all.

17. The argument that the entrustment must be in a particular manner known to law is a futile argument. Apart from the fact that the argument does not bear scrutiny on first principle, time and again the Supreme Court has refuted such expansive proposition of law. The observation of the Supreme Court in Akhaney's case (58 Bom.L.R. p. 1026) may be usefully referred to here in this behalf. This is what the Supreme Court has observed in the said judgment :---

'But when section 405 which defines 'criminal breach of trust' speaks of a person being in any manner entrusted with property it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to other person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event.'

In the instant case, the apartment was given into the possession of the accused. The Government continued to be the owner of it. The accused also remained in possession of the premises but only for a particular purpose and was to use only in a particular manner. He was injuncted from using in any other manner and he violated that injunction. Such a violation itself constitutes breach of trust and if it has been done dishonestly, the act is nothing short of a criminal breach of trust.

18. The above position is further clinched by the expression 'in any manner' which is used in said section 405 and which qualifies the words 'entrusted with property'.

In this connection, I may also refer to the judgment of the Supreme Court in the case of Som Nath Puri v. State of Rajasthan, : 1972CriLJ897 . In that case, the accused, a traffic assistant in the office of the Indian Airlines Corporation, demanded on behalf of the Corporation certain excess amounts for trunk call charges from the passengers for reservation of seat. After the a amounts were received, he passed receipts on behalf of the Corporation, but subsequently falsified the counterfoils of the receipts and helped himself with the excess amount. In that context, it was observed by the Supreme Court as follows :---

'The words 'in any manner' in the context are significant. The section does not provide that entrustment of the property should be by some one or the amount received must be the property of the person on whose behalf it is received. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being of some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. The expression 'entrusted' in section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. It may be that a person to whom the property is handed over may be an agent of the person to whom it is entrusted or to whom it may belong, in which case if the agent who comes into possession of it on behalf of his Principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust because as an agent he has entrusted with it.'

19. Question then arises as to whether the accused who was entrusted with the property or with the dominion over the property dishonestly used or disposed of the property in violation of the legal contract which he had made touching the discharge of the trust? Now once it is found that the order of allotment specifically injuncted that the user of the property should be in the particular manner, there would hardly be any scope for misgiving as to whether such violation of the direction contained in the legal contract was made by the accused or not. The order directed him to use the premises only for himself and his family. He gives the same on rent to a total strange. There cannot be conceived of any cases more violative of the order than the present one.

A feeble contention, however, was that the order did not constitute a direction of law prescribing the mode in which the trust was to be discharged nor did it constitute a legal contract express or implied between the Government and the accused touching the discharge of the trust. This argument was two-fold, but, was noticeably hesitant on both the folds. The two prongs of the argument were that :---

(1) the order did not constitute direction of law; and

(2) the order did not constitute any legal contract.

To my mind, the only thing that was correct about the argument was the hesitant part of it; the argument itself was wholly devoid of substance. When the officer concerned had passed the order of allotment on behalf of the Government, the officer did not do it without having any authority in that behalf. If he had no authority, the possession of the premises by the accused would be illegal at all times. The order was a lawful order. It is not disputed that the officer passing the order had full authority to impose the condition mentioned in law. As matter of fact, it could be seriously contended that absence of this condition would make the order seriously unconstitutional. A simple illustration will bear out this point. Supposing the order had directly stated that the premises are being given to the accused but he could give it to anybody and earn as much income as he liked. Would it be a Constitutional order? Would not the thousands upon thousands of employees standing in queue for getting accommodation pounce upon the officer passing such an order and tell him that the order was illegal because the officer had no business to distribute the premises as if they were largesses. The officer was duty-bound to allot the premises only to the Government employees. But if he allots them to any Government employee with permission so that the latter was at liberty to make them over to any one else with impunity, the power given to the officer of making the allotment to the Government employee would be nothing short of travesty of the Constitutional obligation to which the Government and the bureaucracy are subject.

To my mind, therefore, when the order was passed, it was nothing but a direction of law within the contemplation of section 405, Indian Penal Code.

20. But, to my mind, the alternative view is equally possible. The Court would not be unduly attaining its inferential capacity if it came to the conclusion that when the officer passed the order and the accused made a declaration, as directed by the order, and went into possession of the premises in pursuance of the order, there sprang into being a legal contract between him and the Government. The contract may not be a contract of lease. But it certainly was a contract relating to the manner in which the premises was used by the accused. One may call it an express contract or one may call it an implied contract.

Whichever way one looks at it, one cannot escape the conclusion that the hesitant please advanced by the learned Counsel do not help the accused to wriggle out of the inexorable application of section 405, Indian Penal Code.

21. This brings me to the strongest leg of the Counsel's defence. His contention was that the prime ingredient of the offence under section 405 is the dishonest user of the property entrusted to the accused. The 'dishonesty', under the Penal Code, could be inferred only if there was wrongful gain reaped by the accused or wrongful losses caused by him to the Government. According to the learned Counsel, by virtue of the act committed by the accused, he got not a farthing of gain, let part any wrongful gain, nor did he act in a manner which resulted in any loss to the Government. He pointed out that the amount that was payable by the accused to the Government was Rs. 110/-. He had paid that amount to the Government. Hence, there was no loss to the Government. So far as he himself was concerned even if he had received a rupee more than Rs. 110/- from Dr. Ranganayaki, he could possibly, be said to be helping himself with such wrongful gain of a rupee. But all that he had charged to Dr. Mrs. Ranganayaki was the same amount which he was paying to the Government. He paid Rs. 110/- p.m. to Government and received Rs. 110/- p.m. from Dr. Ranganayaki. 'No gain. where, then, is the wrongful gain?' is the query posed.

For the purpose of this argument, I am prepared to assume that the accused was such a paragon of virtue that even though he was having every opportunity of receiving larger sums from Dr. Mrs. Ranganayaki, he in fact did not receive such amount and he received only the amount of Rs. 110/- per month from her. In normal circumstances, it could have been very difficult for me to believe such an act of magnanimity on the part of the accused. But there is no suggestion made by the prosecution to Dr. Mrs. Ranganayaki that anything more than the sum of Rs. 110/- was paid by her to the accused per month for the purpose of the occupation of the premises. She may have many reasons for not disclosing the fact that in fact she had conferred larger benefits upon the accused than were admitted by herself. But I cannot go into that question because there is not even any suggestion or evidence on record even to suspect that in fact any other consideration was received by the accused from Dr. Ranganayaki over and above the monthly amount of Rs. 110/-. I am, therefore, proceeding upon the firm assumption that all that was paid by Dr. Mrs. Ranganayaki to the accused was a sum of Rs. 110/- as occupation charges. Question is; Does the payment of Rs. 110/- not constitute wrongful gain to him?

A little analysis of the total position would suffice for pin-pointing the underlying fallacy of this pose of innocence. Had not the accused taken any monies from Dr. Mrs. Ranganayaki at all, could he not be liable for that amount of Rs. 110/- all the same? Could he have stated to the Government that he was no occupying the premises, somebody else was occupying them with his permission and hence, he was not liable to the Government for payment of any compensation to the Government? The exchequer, as such, had nothing to do with the question as to whether he had actually occupied the premises or not. No doubt non-occupation of the premises would have rendered him liable to eviction by the Government. But irrespective of the question whether he had occupied the premises or not he would be liable all the same to pay the amount of Rs. 110/- to the Government per month. This much position was not disputed by the learned Counsel.

But if this is the position, does it not mean that by receiving the amount of Rs. 110/- per month from Dr. Mrs. Ranganayaki the accused had enriched himself unlawfully by the sum of Rs. 110/- p.m.

Position was that when the accused received his monthly pay packet, there was bound to be reduction in the pay packet by Rs. 110/- because he was allotted those residential quarters. If the accused tried to make good that deduction by asking somebody else to go into the possession, he has received a wrongful gain to himself within the contemplation of section 405, Indian Penal Code. This is the view taken by the learned Magistrate and I, for one, can find no fault with the same.

But, to my mind, there is a more important aspect of the case. To my mind, even the view that no wrongful loss was caused to the Government is quite vulnerable.

22. Some little analysis would be enough for driving this point home. The Government makes available flats to its employees for their residence, in the ultimate analysis, not with just a charitable view but partly because it is a part of its welfare activities and functions and partly because at the same time, it results into improving efficiency of its employees and in ameliorating their conditions of living. It is undisputable and in fact not disputed that there is a long queue of the Government employees waiting for their turn to get a decent roof on their head. But the Government has got limited number of apartments. If a particular employee does not need the apartment the Government makes it a point to give it to the next candidate waiting in the queue. If any one of the employees takes the flat and keeps it, say, simply locked up that will spell inexcusable loss to the next person in the turn; but that is not all. It will be a loss also to the Government because its own employee has been deprived of the precious accommodation and to that extent even the efficiency of the Governmental work suffers. Such a loss is very much a wrongful loss. There is nothing g right about this; everything is wrong. The word 'wrongful' need not be and should not be restricted to pecuniary loss. If the flat is not used for the purpose for which it was allotted to the employee there does result very much of a wrongful loss to the Government.

I do not see any reason why the word 'wrongful loss' should be construed and interpreted in a narrow restricted pecuniary sense alone. There are occasions where the loss which cannot be valued in rupees and paise is much more serious and deplorable than a monetarily assessable loss. It may be that in the earlier times in the past the Court had no occasions to notice this facet of the meaning of the words 'wrongful loss', but that does not mean that this facet never existed. The Court must watch end see whether the challenges thrown by the new evils and new maladies cannot be remedied by finding out new but legitimate dimensions of the meanings and contents of the existing statutory expression.

If the allottee of the Government keeps the flat just locked like a dog in the merger, there shall result a loss to the Government and the loss will be very much a wrongful loss.

The position is in no way altered because the allottee instead of just locking the apartment, hands it over to some person whom the Government had never the intention to allot it and the loss does not become the loss of it because the allottee declares that his intention in doing so is highly noble and humanitarian. The Government had not allotted him the flat for the purpose of using it for charitable purposes. For what purpose the flat should be utilised has got to be determined by the Government in legitimate way. If the allottee wanted to indulge in the acts of charity he could do so at his won cost; not at the cost of the Government. If he does so at the cost of the Government, Government can and ought to contend that it is a wrongful loss caused to them by their self-proclaimed philanthropist employee.

23. The significance of the conditions put by the Government upon the allottee before and at the time of taking possession can be noticed in this context. Even at the time of the allotment of the flat the Government had made it clear to the allottee that if he did not occupy the flat within one week the allotment would be cancelled meaning thereby that the next person in the turn would get the allotment. This clearly shows the somewhat rare but welcome sense of urgency betrayed by the Government. Further, the Government had put a mandatory condition that the allottee was not entitled to induct in the premises any person other than the bona fide members of his family and for that purpose the allottee was required to make a declaration relating to the bona fide members of his family. If the allottee wanted any other person to stay, even along with him in the apartment he could do so only with the permission of the Government. The Court cannot assume or conclude that this condition was an empty formality with no rational purpose behind the same. The condition has a very good reason behind it. The experience has been that under the pretext of bringing somebody to stay along with the allottee, the allottees are very frequently in the habit of---

(a) profiteering by keeping strangers in the Government flat;

(b) allowing strangers to make the principal use of the flat.

The Government do not want such a result to be brought about or facilitated and it is really anomalous to contend that if such a result is brought about, no loss is caused to the Government or that the loss is not wrongful loss.

In this context, it can be seen that the accused came out with a false plea that he was living in the premises jointly with Dr. Mrs. Ranganayaki. The fact that the plea was false is no longer in dispute. Mr. Samant gave up the plea at the very outset, specifically and categorically. Obviously, the plea was taken believing that such joint user mightier not spell any offence. But even there the accused is wrong. There will be caused in which a joint user with a stranger may also result in wrongful loss to the Government. But I need not discuss that aspect of the matter because, this as the plea, was, has been given up.

The reason why I am mentioning this position with an apparently exaggerated emphasis is that this phenomenon is now becoming wide and rampant. The entire intention of the Government to provide accommodation to its employees and at the same time not to allow the facility to be a burden upon the Government and upon the city administration is being defeated by this evil phenomenon.

I am somewhat happy that at least after some dragging of fee, at long last some officers of the Government and some officers in the Police Department have woken up to notice this evil phenomenon and have been diligent enough to place their finger upon the remedy provided for the same in our existing law. I am also very happy that the learned Special Judge to of a realistic view about the case before him and did not allow himself to be carried away by pedantic technical pleas.

24. Mr. Samant argued that the charge framed by the Court did not allege that any wrongful loss was caused by the accused to the Government and hence it was open to this Court to base its finding about criminal breach of trust upon such wrongful loss.

I have my doubt as to whether the charge can be faulted on this account. The charge alleged the offence of criminal breach of trust and one of the offence is the causing of wrongful loss. But in order to cut short the argument. I offered to suitably clarify the charges. No further evidence need be led by the prosecution even if the charge is so clarified. I even offered it to the accused that I was prepare to record his further statement under section 313 of the Criminal Procedure Code in answer to the clarified charge. Mr. Samant, however, declined to avail of the opportunity and refrained from pursuing the said point any further.

25. The last point urged by Mr. Samant was that on the prosecution's own showing the accused was not the only person who had indulged in such illegality and that, still, it was only the accused who was singled out by the department for the prosecution. If there are so many of them committing identical offence, why pick and choose me alone for the punishment? asked the accused.

I was somewhat at a loss to understand the thrust of the rhetoric, because I asked the learned Counsel whether he was relying upon Article 14 of the Constitution of India with a grievance that he was being discriminated against; but the learned Advocate made no bones about it and stated quite categorically that violation of his fundamental right under said Article 14 was not his grievance. He added that he was fully aware of the legal position settled by virtue of a series of judgments of the Supreme Court that if out of the several offenders, some are not proceeded against by the State, the others, cannot put a caveat that they are discriminated against.

But if that was the position, of which the learned Counsel was aware, I just failed to perceive what he was driving at and I had a lurking suspicion that the learned Counsel himself was suffering from similar difficulty. All the same, I called upon the learned Public Prosecutor, Mr. Kothari to file in this Court a statement as regards the factual position in this behalf. He has filed a statement showing the number of such allottees who are alleged to have committed similar offences, the number of those against whom even prosecution has been launched and number of cases in which the prosecution is pending. Time was given to the accused to verify the correctness of the statement. But the correctness of it has not been called in question by the present accused. In view of the said statement, it becomes clear that the plea that the present accused has been alone singled out for prosecution is factually incorrect.

But from the statement filed by the learned Public Prosecutor, it is clear that the present case is being prosecuted by the Government as a test case. In this context, I wish to express the happiness of this Court on account of the refreshing alertness of mind shown by all the officers concerned as also by the Police Officers in diligently instituting and pursuing this prosecution. I am also happy about the realistic approach evinced by the learned Special Judge.

26. The appeal, therefore, stands dismissed.

However, in view of the fact that this is the first case of this kind which is brought to the precincts of this Court and further in view of the fact that the accused, I am told by Mr. Kothari, the learned Public Prosecutor had already retired from service on 1-1-1984, it is necessary that some observations be made in this judgment so that the ultimate punishment named out to the accused will not be inordinately harsh Mr. Kothari, the learned Public Prosecutor, has very fairly stated that if by virtue of this order of conviction which is being confirmed by me, the accused, who is now under suspension, is dismissed from service by the Government, his future right of pension is likely to be gravely jeopardised. I am of the opinion that such a situation will spell the punishment inordinately disproportionate to the nature of offence committed. I make it clear that I am observing this only because this is the first case of this kind. If the Government employees continue to commit such offence inspite of this judgment, even an order of dismissal from service resulting in the above-mentioned loss to the recalcitrant employee may be perfectly justified but so far as the present case is concerned, that much of punishment will be disproportionate with the offence, having regard to the facts of this case.

But for fact that the conviction is under section 409 of the Indian Penal Code, I would certainly have given benefit to the accused of the provisions of the Probationers Offenders Act. However, I do opine that in the interest of fairness, no order should be passed against the accused in the departmental proceedings depriving the present accused of the benefits of pension, gratuity and provident fund.

27. After the judgment was declared in the open Court and signed, Mr. Samant mentioned the appeal before me for speaking to minutes. He pointed out in para 26 of the judgment that I had made reference to the likelihood of the right of the accused in respect of pension being adversely affected by virtue of the conviction which I have confirmed by the judgment in appeal. Mr. Samant stated that in addition to the question of pension, there were other benefits such as salary, gratuity etc. which were likely to be adversely affected by virtue of the order of conviction. He pointed out that I have already made it clear in my judgment that the case which I was dealing with did not called for such extensive punishment. I have mentioned therein that if the punishment in addition to the one given by the Court was required to be suffered by the accused indirectly, it would be an inordinately disproportionate punishment having regard to the nature of the offence committed by the accused.

In view of this position, Mr. Samant prayed that I should also mention in my judgment that the Department should make every effort to see that the accused who has now already retired should not be made to suffer adverse effect relating to his salary, gratuity etc.

I heard Mr. Kothari, the learned Public Prosecutor for the State on this point. He was fair enough to leave the matter to the Court.

I agree with Mr. Samant that this is a fit case where the accused should not be made to suffer indirect punishment of loss in respect of salary, gratuity etc., in the same way, as he should not be made to suffer any loss in connection with his pension. I am sure that the authorities concerned will take this aspect of my ruling.

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