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TMI Blog2003 (9) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 2. Case of the prosecution was that on 23rd August, 1982 the appellant went to the State Bank of India, Jharia Branch for taking two banks drafts of ₹ 75,000/- each. His servant Indradeo Ram was also with him. The appellant had carried a sum ₹ 1,50,200/- with him out of which ₹ 75,100/- was of Mahabir Bhandar of which appellant was owner, while balance ₹ 75,100/- was of Swastik Bhandar belonging to brother of appellant. The total amount was handed over to accused-Ganauri Sao for the purpose of counting at the instance of accused-Gautam Bose - the Head Cashier. The cash peon told him that he would count the money, and return the bag in which the money was carried at 2.00 p.m. Informant-appellant handed over cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 409 IPC read with Section 34 IPC and were sentenced to undergo imprisonment for two years each. The said accused persons filed two appeals before the Additional Sessions Judge, Dhanbad, who in Crl. Appeal No. 145/1986 and Crl. Appeal No. 151/1986 held that accusations have not been brought home because there were many infirmities in evidence and there was doubt as regards the manner of entrustment for bringing in application of Section 409 IPC. The matter was carried in revision before the Patna High Court by the informant-appellant. By the impugned judgment, learned Single Judge held that though the money appears to have been handed over, it has not been established by credible and cogent evidence when the money were really missing. It, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har submitted that the stand adopted by the appellant is adopted by it. 7. Section 409 IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent. In order to bring in application of said provision, entrustment has to be proved. In order to sustain conviction under Section 409, two ingredients are to be proved. They are: (1) the accused, a public servant, or banker or agent was entrusted with property of which he is duty bond to account for; and (2) the accused has committed criminal breach of trust. 8. What amounts to criminal breach of trust is provided in Section 405 IPC. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the cash counter. It is not the case of prosecution that money which was given to the accused-Gautam Bose and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an Intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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