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TMI Blog1991 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the records can be stated thus: There was a Block Development Office in the district of Sultanpur known as Dhanpatganj Block to which a seed store known as Semrauna seed store was attached. The seed store was to cater the needs and requirements of the cultivators for seeds and fertilisers etc. During 1964-65, the first appellant was incharge of that seed store. On 2.9.65, he was relieved by the second appellant on transfer from Kurebhar. 3. According to the prosecution, the first appellant in his official capacity was entrusted with fertilisers, pesticides, seeds etc. which were meant to cater the needs of the cultivators within Semrauna area. In 1965, there were several village level workers. It is said that on 29.7.65, the first appellant prepared forged bills in the names of some village level workers (hereinafter referred to as VLWs) bearing bill Nos. 57, 59, 60, 61, 62 and 64 of book No. 7767 as if the VLWs were supplied with articles of Agricultural Department on credit, the total amount of which being Rs. 1591.04 and thereby committed breach of trust, punishable under Section 409 I.P.C. The indictment against the second appellant is that he being a public servant of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of these witnesses. Their statements satisfactorily make out an offence under Section 409 I.P.C. against two appellants in both the cases.... I am, therefore, of the opinion that the conviction of the two appellants ordered by the Trial Court under Section 409 I.P.C. is justified. 7. By these two appeals, the appellants challenge the correctness of their conviction. Mr. R.K. Garg, the learned senior counsel appearing on behalf of the appellants contended, inter alia, stating that though the Government had instructed that credit sales from the seed stores be discontinued, yet the long established practice was continued and in fact the Government was also well aware of this position and that it was the reason why as late as 2.8.67, the Government had been repeatedly issuing circulars inviting the attention of the employees concerned to stop the practice of credit sales and warning that any official or officer issuing will be held responsible to pay the outstanding amount and, therefore, in such circumstances there could not be any case of misappropriation in any form since from the very beginning, the first appellant had been stating that credit sales had been made. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commodities purchased from 95-Capital outlay are still sold and credit otherwise the dues should not increase in this office circular letter No. IA-7250/Dues-129 dated 21.10.1964 and circular No. 4934/Dues 29.7.1965 it was made clear that the practice of credit sales should be stopped and on your visits to seed stores you should see that there was no credit sales and take suitable action against official and officer responsible for such sales. It appears that these instructions have not been followed vigorously. Government has taken serious exception to the practice of credit sales despite their orders stopping this practice. It is therefore, impressed again that credit sales of articles from the Government Agricultural seed stores is strictly prohibited and any official or officer issuing stores or authority sign their issue on credit be held personally responsible to pay the outstanding amount. At the time of handing over charge, all credit sales be a seed store Incharge should be treated as shortage and recovery effected from him. Suitable action including assessment of monetary responsibility, should also be taken against supervising officials and officers who do not report c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bill books to ensure that no credit sales have been made and in case some such sales have been made take action as indicated above. 4. It may please be kept in view that the receipts and recoveries under the head 95 Capital outlay should equal to the expenditure incurred thereunder. In case the receipts and recoveries fall short in comparison to the expenditure, the future allotments of funds will be reduced accordingly and the drawing and disbursing officer responsible for drawing funds from 95 capital outlay called upon to explain the irregularity and short fall in recovery. 5. The above instructions should be brought to the notice of all concerned under a registered cover for strict compliance and the quarterly report for the quarter ending June 1968 submitted by 15.8.68. Please acknowledge receipt of this letter. Sd/- R.R. Agarwal, Director 14. The copy of the above circular was forwarded to all Functional Deputy Directors of Agriculture and Horticulture and Jute Development Officer, Lucknow and District Agriculture Officers and Superintendent Govt. Gardens for information and necessary action. 15. A cursory reading of both the circulars shows that inspite of the circulars di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore investigation by the C.I.D. This accused N.P.N. Singh himself admitted to have deposited moneys for these bills Nos. 57, 59 to 62 and 64. 19. As borne out from the records, the payments with regard to the questionable bills made between 1.9.65 to 29.6.66 were as follows: S. No. Bill No. Amount Date and amount paid 1. 57 29-7-65/12-8-65 138.00 19-12-65 14-2-66 Rs. 96.40 Rs. 41.40 Rs. 138.00 2. 59 318.86 19-12-65 29-6-66 Rs. 282.06 Rs. 36.80 Rs. 318.86 3. 60 495.94 19-12-65 Rs. 495.94 4. 61 357.48 19-12-65 6-1-66 Rs. 185.48 Rs. 172.00 Rs. 357.48 5. 62 155.26 18.12-65 Rs. 155.26 6. 63 125.50 1-9-65 Rs. 125.50 20. The above payments clearly establish that there is no outstanding amount towards any one of the bills by 29.6.66. PWs 1 to 3 (VLWs) have unanimously testified that they did not purchase anything from the first appellant on credit and also did not receive these bills in question and have further deposed that they did not make payments as shown in the cash receipts prepared by the second appellant. On the contrary, the specific case of the appellant is that none of the bills or cash receipts is either false, fictitious or bogus and they are all genuine bills and receipts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad dishonestly misappropriated or converted the property entrusted to him to his own use or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged; secondly whether the second appellant was also a privy to the alleged misappropriation; thirdly whether both the appellants forged false bills and cash receipts and then fraudulently or dishonestly used such documents as genuine; and fourthly whether the appellants in their capacity of public servants dishonestly misappropriated or converted that property to their own use or willfully suffered the Department by doing any act in violation of the directions, thereby making themselves liable to be punished for the aggravated form of criminal breach of trust under Section 409 I.P.C. The expression 'dishonestly' is defined under Section 24 of the Indian Penal Code. It is true that the series of circulars issued by the Directorate of Agriculture have laid down certain directions prescribing the mode in which such trust was to be discharged. 25. Notwithstanding such circulars, it appears that the long established practice of credit sale of seeds, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 27. The charge under Section 409 is levelled against both the appellants. In our view, this charge against both the appellants cannot be sustained for the reasons to be presently mentioned. 28. The then D.A.O. Sultanpur passed the transfer order of certain officials inclusive of these two appellants by his order dated 9.5.65 whereunder the first appellant was transferred from Semrauna to block Kurebhar vice Puran Singh (second appellant) and the latter from Kurebhar to Semrauna vice N.P.N. Singh, the first appellant. It is not in dispute that the first appellant handed over the charge to the second appellant on 2.9.65 and till then the first appellant was incharge of both the seed stores situated in Semrauna and Kurebhar. The first appellant submitted his compliance report on 3.9.65 which is Exh. Ka-15. If it is so, how the second appellant who had not taken charge of seed store of Semrauna till 2.9.65 could be held to be liable for an offence under Section 409 in respect of the amount covered by the bills in question i.e. bill Nos. 57, 59 to 62 and 64 which were all prepared between 29.7.65 to 12.8.65 i.e. earlier to the second appellant joining the block of Semrauna. Hence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 7767 and thereby made himself liable for the commission of breach of trust. This charge cannot be sustained both in law and facts for the reasons to be mentioned. Admittedly, the first appellant was incharge of the block at Semrauna till 2.9.65. According to this charge, the offence is said to have been committed on 4.7.64 when the second appellant was working in the block of Kurebhar and, therefore, both the appellants cannot be jointly charged on the allegation that on 4.7.64 they being the public servants of the seed store of Semrauna committed the breach of trust. Secondly, the prosecution has not satisfactorily established the main ingredient of 'dishonestly' against any of the appellants, even though at the worst, it may be said that the first appellant was guilty of dereliction of his duty in not collecting the outstanding amount by taking any appropriate steps in that regard. When the conviction recorded by the Trial Court under Section 467 is set aside by the High Court as against which no appeal is preferred by the State, the second appellant cannot in any way be fastened with the criminality of misappropriation by issuing the cash receipts in question. A clos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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