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Champaklal Nemchand Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR262
AppellantChampaklal Nemchand
RespondentThe State
Excerpt:
.....must be other circumstances to prove the element of dishonesty and unless the element of dishonesty is proved the mere retention of the money would not by itself to be the offence of criminal breach of trust. the applicant is therefore clearly guilty of criminal breach of trust in respect of this amount of rs......prosecution case that there was, however, one item which was not paid, viz. rs. 70/- paid by one sava jadav to the applicant. both the courts below have accepted the prosecution case that the money in question had been paid to the applicant as part payment of tagavi loans by agriculturists concerned. the courts below have came to the conclusion that in regard to rs. 571-87 np which the applicant had credited into the government treasury there was retention between december 1957 and april 1958 and that this constituted criminal misappropriation and criminal breach of trust. as regards the ether item of rs. 70/- paid by saba jadav both the courts have held that the applicant tad committed the offence of criminal breach of trust because he denied having received this money from sava jadav.....
Judgment:

V.B. Raju, J.

1. This is a Criminal Revision Application by one Champaklal against his conviction under Section 409 I.P.C. which was confirmed in appeal by the learned Sessions Judge, Jamnagar. The charge related to Rs. 640/-paid in December 1957 to the applicant who was admittedly a Talati by agriculturists as repayment of Tagavi loans, The applicant had credited Rs. 570/- and odd in the government Treasury, in April 1958. It was the prosecution case that there was, however, one item which was not paid, viz. Rs. 70/- paid by one Sava Jadav to the applicant. Both the courts below have accepted the prosecution case that the money in question had been paid to the applicant as part payment of Tagavi loans by agriculturists concerned. The courts below have came to the conclusion that in regard to Rs. 571-87 nP which the applicant had credited into the Government Treasury there was retention between December 1957 and April 1958 and that this constituted criminal misappropriation and criminal breach of trust. As regards the ether item of Rs. 70/- paid by Saba Jadav both the courts have held that the applicant tad committed the offence of criminal breach of trust because he denied having received this money from Sava Jadav although in his statement made by him before the Mamlatdar he had admitted having received Rs. 55/from Sava Jadav.

2. As regards the amount of Rs. 571-87 nP. the only contention urged by the Learned Counsel for the applicant is that the temporary retention of money would not by itself amount to criminal breach of trust. As a general proposition this statement is correct. Before a person can be convicted under Section 405 I.P.C. it must be proved that there was an entrustment of property or a dominion over property. Secondly it must be proved that there was dishonest misappropriation or conversion by a person to his own use of that property or that there was dishonest use or disposal of that property in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract express or implied which he has made touching the discharge of such trust or that he willfully suffered any other person to do so. Retention of property entrusted would amount to this offence only if from the fact of retention of property entrusted the second ingredient stated above namely dishonest misappropriation or conversion etc. can be properly inferred. Even if a person was required under rules to deposit the amount entrusted in the Treasury within a few days the failure to do so would not by itself amount to the offence of criminal breach of trust because in addition it must be proved that there was dishonest misappropriation or conversion or dishonest use or disposal of that property etc. The element of dishonesty must also be proved. Sometimes a person may due to negligence or forgetfulness fail to deposit the money which may have been entrusted to him. The mere failure to deposit the money would not therefore prove dishonesty and there must be other circumstances to prove the element of dishonesty and unless the element of dishonesty is proved the mere retention of the money would not by itself to be the offence of criminal breach of trust.

3. In this case however there are circumstances which prove the element of dishonesty. In the case of the amount of Rs. 571 nP. according to the prosecution and according to the findings of both the courts below the amount was received in December 1957. But at the trial the applicant stated that the amount was received in April 1958 and denied that the amounts were received on the dates on which they are proved to have been paid. This false explanation is sufficient to prove the element of dishonesty. The courts below were therefore right in convicting the applicant for criminal breach of trust in respect of the amount of Rs. 571-87 nP. although the applicant had paid this money in the Treasury in April 1958. As regards the amount of Rs. 70/- said to have been paid by Sava Jadav both the courts below have come to a concurrent finding that the amount had been paid by Sava Jadav. It is however contended by the Learned Counsel for the applicant that the persons who were said to have been present at the time of the alleged payment have not been examined and that ordinarily payment should not be held to be proved by the evidence of merely one person if persons who were said to have been present at that time are not examined Ordinarily this principle is correct. But in the instant case according to the findings of both the courts below the applicant himself had made a statement before the Mamlatdar admitting that he had received Rs. 55/from Sava Jadav. It is true that the did not admit the receipt of Rs. 70/but in view of the fact that he had admitted having received some money from Sava Jadav it was open to the courts below to believe the evidence of Sava Jadav notwithstanding that the persons who were said to have been present at the time of the alleged payment were not examined. This is a matter of appreciation of evidence and the findings of both the courts below rest on evidence. In regard to this amount admittedly the amount has not been credited to the Treasury. The applicant is therefore clearly guilty of criminal breach of trust in respect of this amount of Rs. 70/also. There is therefore no reason to interfere with the conviction of the applicant under Section 409 I.P.C. With regard to the sentence it is contended by the Learned Counsel for the applicant that the applicant has already suffered imprisonment for two months and that therefore the sentence of fine of Rs. 200/passed upon him should be set aside as the applicant is a new recruit to the cadre of Talati. In view of the circumstances narrated above I see no reasons to reduce the sentence. The Application is therefore dismissed.


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