9911796707
TMI Blog2012 (2) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... The accused was the Restaurant Manager of a Kappi Club operated by the petitioner company. He was also entrusted with the work of making payments to vendors for purchases made in the course of running the shop, apart from other works. The accused, after working for about 7 months as the restaurant manager, abruptly left the job. After he left his job, it was detected that many of the bills placed by the vendors towards purchases made from them for operating the aforesaid club for which uncrossed cheques were issued in the name of such vendors and handed over to the accused for payment, remained unpaid. Enquiries with the bank revealed that the accused had encashed all such cheques impersonating as the bearer of such instruments. The company detected that about 23 cheques were illegally and deceitfully encashed by the accused impersonating as the bearer of such instrument and a sum of ₹ 1,32,863/- covered by such instruments had been wrongfully encashed by the accused. He had also not paid the amounts so collected impersonating as bearer of such cheques to the creditors to whom the amounts were payable for supply of goods to the company. Wrongful gain was made by the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged under Sections 406, 420 and 468 of the IPC, the learned magistrate passed the order of acquittal in favour of the accused. The merit of that acquittal is assailed in the revision by the de facto complainant. 4. The learned counsel appearing for the petitioner/de facto complainant contended that the order of acquittal rendered in favour of the accused is thoroughly perverse and, more so, based on total mis-appreciation of the evidence, and also misinterpreting even the penal provisions, for which indictment was levelled in the case. In fact, the learned magistrate erred in appreciating the scope of the word 'entrustment' in relation to criminal breach of trust as covered under Section 405 of the IPC and that has led to wrong appreciation of the evidence let in the case resulting in forming erroneous conclusions leading to miscarriage of justice, is the submission of the counsel. The factum of the case against the accused was that cheques handed over to him to be paid to the suppliers had been encashed and misappropriated by him, and thereby he committed criminal breach of trust against his employer. When entrustment of such cheques is proved, which, on the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of acquittal rendered in favour of the accused by the learned magistrate is liable to be interfered with in exercise of revisional jurisdiction. 5. Per contra, the learned counsel appearing for the first respondent/accused contended that there is no merit in the revision, and after meticulous consideration of the evidence and correctly interpreting the penal provisions charged, the learned magistrate has passed the order of acquittal forming the conclusion that the materials tendered are hardly sufficient to prove the culpability of the accused for any of the offences imputed against him. The defence canvassed by the accused that he has been falsely implicated at the instance of some other employees as he had lodged a complaint against one of them on detecting commission of theft by him was also shown to be probable on the materials available on record, is the further submission of the counsel. Even some of the prosecution witnesses, according to the counsel, have admitted that the accused had lodged such a complaint against one Pradeep another employee before the police alleging commission of theft by him. Canvassing and, in fact, stressing with emphasis that revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f purchases made the accused had collected the cheques from him. Several complaints received from the suppliers as to nonpayment after the accused left the service of his employer were exhibited through him as Exts.P9 to P14. PW.3 was the Accountant of the company. He gave evidence that on verification of the accounts of Muthoot Kappi Club it was detected that the cheques issued in the name of suppliers had been encashed by the accused collecting the sums thereof subscribing his signature as the bearer of those instruments. PW.4 was the Manager of the Bank through which Exts.P1 to P6 series were transacted. He gave evidence that the accused has an account in his bank. He had compared the signature in his account opening form and specimen signatures collected, with those appearing on the reverse side of Exts.P1 to P6 series cheques, and, according to him, such signatures were put by the accused. PWs.5 to 9 and 12 are the suppliers or their authorized agents who had supplied goods to the Kappi Club and later gave complaints as to non-receipt of payments for such goods. Complaints given by them are exhibited in evidence as Exts.P9 to P14. Some of the above witnesses also stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te wrongly interpreting the offence of criminal breach of trust covered by Section 405 of the IPC. The learned magistrate has formed an opinion that to constitute the offence of 'criminal breach of trust' the entrustment of the property with the accused has to be established not with 'handing over or putting in possession', but of its continuance till the point of time the misappropriation takes place. Examining the entrustment part involved in the case, stating it began with the entrustment of Exts.P1 to P6 series of cheques with the accused the learned magistrate has proceeded thus: The entrustment alleged in the case further extends up to the alleged encashment of the cheques by the accused after putting his signature on the reverse side of Exts.P1 to P6 series of cheques. Evidently, the learned magistrate was under a misconception that 'entrustment' with property or with dominion thereof, to be established for constituting an offence of criminal breach of trust must continue till it is misused by such person, and that has to be so established by the prosecution. The learned magistrate has lost sight of the fact that the offence constituted und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the account opening form and specimen signatures of the accused, who had an account in his bank, were found similar, and also the merit of Ext.P18 report received from the Forensic Science Laboratory. Expressing views that even in a case where bearer cheques are issued, banker is duty bound to see that encashment of those cheques should go to the account of the concerned institutions the action of PW.4 comparing the signature of the accused in his account opening form with the signatures on the cheques recovered by the police is taken exception to by the magistrate stating that it was not based on any request of the investigating officer. I have glanced through the evidence of PW.4. I am afraid, that no challenge, as referred to by the magistrate, was canvassed nor even suggested to, during the cross-examination of the aforesaid witness. The evidence of PW.4 is seen discarded by the magistrate stating that he did not state of having any particular qualification and skill which enables him to conduct comparison of signatures. Glancing through the evidence of PW.4 and also other material witnesses in the case, so far as the signature appealing on the reverse side of Exts.P1 to P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factum of entrustment of cheques to the accused is also seen discarded stating flimsy reasons that Ext.P7 application does not disclose that the accused continued in service for the entire period as Manager of the club as alleged and that the competency of the Joint Managing Director to empowered to sign the cheques. Sworn testimony of these witnesses on various aspects covered by the entrustment of the cheques, the period of service of the accused etc., are not even looked into by the magistrate. In the given circumstances where the whole approach made by the magistrate in appreciating the evidence tendered by the prosecution and also interpreting the penal provision covered by criminal breach of trust is found to be not only erroneous but perverse, I find that the order of acquittal rendered in favour of the accused cannot be sustained. So far as the other offences covered by Sections 420 and 468 of the IPC, whether the allegations constitute such offences, or the evidence tendered is sufficient, as the findings made are also based on the mis-appreciation of evidence totally on wrong interpretation of the criminal breach of trust on which the scrutiny of materials was proceede ..... X X X X Extracts X X X X X X X X Extracts X X X X
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