KRISHAN KUMAR versus THE UNION OF INDIA

x959 Malanga who was Ohandala. Vishva Mitra was a. v G'. Kshtriya and became Brahman. Hinduism might · : '" have become static at one stage but its modern history Dippala ~"''Do,. shows that this is not so now and it would not be •Kd Othm wrong to say that caste in Hinduism is not dependent upon birth but on actions. The whole theory of karma K•P..• J. is destructive of the claim of caste being dependent upon birth..

In.my opinion Mr. Dippala Suri Dora had by his actions raised himself to the position of Kshtriya and he was no longer member of the Scheduled Caste or Tribe and on that ground also his election cannot be supported.

I would therefore allow this appeal, set aside the order of the High Court and restore that of the Tribu-nal. The appellant will be entitled to costs of this Court as well as of the Courts below.

ORDER.

In view of the majority judgment of the Court the appeal is dismissed with costs in favour of Respondent No. I.

.A.:p:pe,al, diBrnissed.

May ar.

KRISHAN KUMAR

THE UNION OF INDIA

(JAFER IMAM and J. L. KAPUR, JJ.)

Criminal Trial-Misappropriation-Servant receiving goods but failing to account to master-Proof of conversion, if necessary-F alse explanaJ.ion by servant, whether can be taken into consi.Iera· tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c).

The appellant was employed as an Assistant Store Keeper in the Central Tractor Organisation, Delhi. He took delivery of consignment of iron and steel received by rail for the Organisa-tion and removed them from the railway siding. The goods did not reach the Organisation. The appellant absented himself from duty on the following days and when he was called he gave false explanation that he had not taken delivery of the goods. The appellant was tried for misappropriation of the goods, under s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the

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trial, he took the defence that he had moved the goods to another I959 siding but this was not accepted and the appellant was convicted. The appellant contended that his conviction was bad as the Krishan Kumar prosecution had failed to prove that he converted the goods to v. his own use and did not apply them to the purpose for which he The Union of Indi• had received them.

Held, that the appellant had been rightly convicted. The offence of misappropriation was established when the prosecution proved that the servant received the goods, that he was under duty to account to his master and that he had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it was for him to explain the loss; it was not for the prosecution to eliminate all possible defences or circumstances which may exonerate him. The giving of false explanation was an element which the Court could take into consideration in determining the guilty intention.

Harakrishna Mehtab v. Emperor, A.I.R. (r930) Pat. 209; Larnier v. Rex, (r9r4) A.C. 22r ; Emperor v. Santa Singh, A.I.R. (1944) Lah. 338; Emperor v. Chattur Bhuj, (r935) l;L.R. Pat. 108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch, (r854) 6 Cox. C. C. 445, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 114 of 1957.

Appeal by special leave from the judgment and

order dated December 6, 1955, of the Punjab High Court (Circuit Bench) Delhi in Criminal App13al No. 25-D of 1953, arising out of the judgment and order dated August 27, 1953, of the Court of the special judge at Delhi in Criminal Case No. 3 of 1953.

R. L. Anand, and S. N. Anand, for the appellant.

H. J. Umrigar, and R. H. Dhebar, for the res-pondent.

1959. May 21. The Judgment of the Court was delivered by

KAPUR J.-This appeal by special leave is brought against the judgment and order of the High Court of the Punjab confirming the order of conviction of the appellant under s. 5(l)(c) of the Prevention of Corrup-tion Act, 1947 (II of 1947) (hereinafter referred to as the Act). The High Court reduced the sentence of the appellant to nine months' rigorous imprisonment.

Kapur].

r959 The appellant was employed as an Assistant Store Keeper in the Central Tractor Organisation at Delhi Krishan Kuma, an amongst ot er uties his duty was the taking of The Uni;; of India delivery of consignment of goods received by rail for Central Tractor Organisation and in that capacity he Kapu. J. is alleged to have misappropriated major portion of wagon load of iron and steel W!lighing about 500 Mds. received at Delhi Railway Station from the Tata Iron & Steel Co., Tatanagar, under F,ailway Receipt No. 039967 dated August 12, 1950. This consignment of goods was taken delivery of on October 2, 1950 at the Lahori Gate Depot. The consignment had been lying at the Railway depot for considerable time and the Central Tractor Organisation was, before taking the delivery, making efforts to have the wharf-~.ge and demurrage charges reduced but Jt only succeeded in getting reduction of Rs. lOG The appellant paid Rs. 2,332-4-0 for demurrage by means of credit notes P. N. and P. 0. on October 2, and on the following day he paid further sum of Rs. 57-3-0 by a. credit note P. Q. The prosecution case was that this consignment never reached the Central Tractor Organisation and that the appellant had removed these goods and had misappropriated them. He was absent from work after October 4, 1950, on the alleged ground of illness but he was sent for on October 7, and appeared before the Director of Administration Mr. F. C. Gera and he gave an explanation that he (the appellant) had lost the Railway Receipt along with another Railway Receipt and blank credit notes which had been signed by the Petrol and Transport Officer. He also stated that he did not know that the goods covered by that Railway Receipt had been cleared. After this explanation the appellant was handed over to the police and case was registered against him at the instance of Mr. F.C. Gera on October 7, 1950.

On the following day, that is, October 8, 1950, the appellant made statement to Sub~Inspector Sumer Shah Singh that he had given the goods to Gurbachan Singh who was traced and in the presence of this Sub-Inspector who was not in uniform at the time Gur-bachan Singh handed over Rs. 200 to the appellant

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which the Sub-Inspector took possession of and then z959 Gurbachan Singh took the party which consisted of . . the Sub-Inspector, Dharam Vir of the Central Tractor Krishan Kumar Organisation and witness Karta.r Singh to the premises The Uni:~ of India of Amar Singh at Kotia Khan where iron and steel goods were seized and recovery memos prepared. Of Kapur J. the goods covered by the consignment seven packages were later rec0rnred from the Lahori Gate Goods Depot.

The defence of the appellant was that he took delivery of the goods on October 2 and 3 and removed them to another Railway Siding known as Saloon Siding where the goods of the Central Tractor Organi-sation used occasionally to be stacked in order to save wharfage and demurrage. In his evidence he stated that he removed these goods to the Saloon Siding on October 2 and 3 by means of truck of the Central Tractor Organisation which was driven by Sukhdev Singh. The appellant produced Sukhdev Singh and two chowkidars in support of his defence that he had removed these goods from the Lahori Gate Depot to the Saloon Siding by means of the truck of Sukhdev Singh and on some on carts. The High Court has not accepted this evidence. Therefore the position comes to this that the goods received in that. consignment were, according to the appellant's own showing, removed from the Lahori Gate Depot but it is not proved that they reached the Saloon Siding and they did not reach the Central Tractor Organisation. There is also the fact that the appellant gave false explana-tion on October 7, 1950, as to what had happened to the Railway Beceipt or the credit notes which he had received from the Central Tractor Organisation and there is the further fact that the appellant was absent from duty from October 4 to October 7 till he was sent for Mr. F.C. Gera.

The prosecution also tried to show that the goods were removed by Gurbachan Singh to Amar Singh's place from where certain iron and steel goods were recovered. Now these iron and steel goods do not tally with the goods which were received from Tata-nagar under Railway Receipt No. 039967 and the goods

•9$9 seized from Amar Singh's place have not been shown to be of the Tata Iron & Steel Co's manufacture. Krlshan Kumar v. Therefore the case reduces itself to this that the appel-Th• Union of India lant took delivery of the goods. These goods were removed from the Lahori Gate Railway Depot by the K•P•• J. appellant and they never reached the Central Tractor Organisation. The prosecution sought to connect the goods found at Amar Singh's place with the goods received, taken delivery of and removed by the appel-lant but they failed to do so because neither the identity of the goods is the same nor has Gurbachan Singh been produced to depose that it was the appel-lant who asked him to remove the goods for being taken to Amar Singh's place.

In this view of the matter the question for decision

is whether the case of the prosecution should be held to be proved that the appellant had misappropriated the goods. It emerges from the evidence of both par-ties that the goods were received by the appellant and removed by him; and they never reached the Cen~ral Tractor Origanisation. Indeed before the High Court it was not disputed that the appellant took delivery of the whole consignment at Lahori Gate Depot and " he was responsible for the actual removal of two consider-able portions of the consignment on the 2nd and 3rd of October. "

The offence of which the appellant has been convict-

ed is s. 5(i) (c) of the Act which i~ as follows:-

5. (1)" public servant is said to commit the offence

of criminal misconduct in the discharge of his duty-

( c) if he dishonestly or fraudulently misappropri-ates or otherwise converts for his own use any property entrusted to him or under his control as public servant or allows any other person so to do";

The word 'dishonestly' is defined in s. 24 of the Indian

Penal Code to be

"Whoever does anything with the intention of

. causing wrongful gain to one person or wrongful loss to another person is said to do that thing 'dishonestly'.

S.C.R. SUPREME COUH,T REPORTS 457

" Fraudulently has been defined in the Indian Penal r959 Code in s.· 25 as follows : K . K · 'd t th' dul tl 'f ris an umti7 " person is sa1 o o mg rau en y i v. does that thing with intent to defraud but, not other- Tire Union of India wise."

Wrongful gain includes wrongful retention and wrong-

Kapur J.

ful lass includes being kept out of the property as well

as being wrongfully deprived of property. Therefore when particular thing has gone into the hands of servant he will be guilty of misappropriating the thing in all circumstances which show malicious intent to deprive the master of it. As was said ·by Fazl Ali, ,J., in Haralcrishna jlfahtab v. Emperor (1):

"Now I do not mean to suggest that it is either necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused; because under the law, even temporary retention is

an offence, provided that it is dishonest,. ............. .

........................ I must point out that the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dis-honest intention or-not. As the question of intention is not matter of direct proof, the Courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding whether in particular case the accused had or had not mens rea for the crime. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving false account of its use is generally consi-dered to be strong circumstance against the accused.''

The offence under s. 5(l)(c) is the same as embezzle-ment, which in English law, is constituted when the property has been received by the accused for or in the name or on account of the master or employer of the accused and it is complete when the servant. fraudulently misappropriates that property. (Hals-bury's Laws of England, Vol. 10, 3rd Edition, p. 787) In Larnier v. Rex(") the offence of embezzlement was (1) A.I.R. (1930) Patna 209. (2) (191~) A.C. A.C. 22r.

(2) (191~) A.C. A.C. 22r.

z959 described as wilful appropriation by the accused of Krishan Kumar the property of another. court of Justice, it was v. said in that case "cannot reach the conclusion that The Union of India the crime has been committed unless it be just result of the evidence that the accused in what was done or Kap"' J. omitted by him was moved by the guilty mind."

So the essence of the offence with which the appel-lant was charged is that after the possession of the property of the Central Tractor Organisation he dishonestly or fraudulently appropriated the property entrusted to him or under his control as public servant and deprived the owner, i.e., Central Tractor Organisation of that property.

It is not necessary or possible in every case to prove in what. precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not matter of direct proof but giving false account of what he has done with the goods received by him may be treated strong circumstance against the accused person. In the case of servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish prima facie case in·the first instance. It is not enough to establish facts which give rise to suspicion and then by reason of s. 106 of the Evid-ence Act to throw the onus on him to prove his inno-cence. See Harries, C.J., in Emperw v. Santa Singh (1) In the present case the appellant received the consign-ment of goods which ca.me from Tatanagar. It is admitted that he.removed them and it was found by

(1) A.I.R. (191tl Lah. ~38 at p. 346.

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the High Court that they never reached the Central I959 Tractor Organisation. He gave an explanation in Krishan Kumar court which has been found to be false. Before v. Mr. F. C. Gera he made statement to the effect that The Union of In4i4 he had lost the Railway Receipt and therefore had never got the delivery of the goods which Wll\S also Kapur J. false. In these circumstances, in our opinion, t~e court would be justified in concluding that he had dishonestly misappropriated the goods of the Central Tractor Organisation. The giving of false explanation is an element which the Court can take into conside-ration. (Emperor v. Chattur Bhuj (1)). In Rex v.

William ([2]). Coleridge, J., charged the jury as follows :-

"The circumstances of the prisoner having quit-ted her place and gone off to Ireland is evidence from which you may infer that she intended to appropriate the money and if you think that she did so intend, she is gully of embezzlement".

Again in Reg v. Lynch ([3]), Moore, J., said:-

"You have further the fact that, after gettingthe money, the prisoner absconded and did not come ha.ck till he was in custody. You may infer that he intended to appropriate this money, and if so, he is guilty of embezzlement."

The appllent'.s counsel relied on certain observations in certain decided cases which, according to his sub-mission, support his contention that the prosecution has to prove not only receipt of goods by the accused but also to prove that he converted them tc. his own use and did not apply them to the purpose for which he received them. He referred to Ghulam Haider v. Emperor (4); In re Ramakkal & Others (5) ; Bolai Chandra Khara v. Bishnu Bejoy Srimani (6); Bhik-chand v. Emperor (7) ; Pritchard v. Emperor {8)~ So broadly stated this submission does not find' support even from the cases relied upon by the appellant's counsel. They are all decisions on the peculiar circum-stances of each case. In Ghulam Raider's case(')

(1) (1935) l.L.R. 15 Patna 108.

(5) A.I.R. 1938 Mad. 172.

(2) (1836) 7 C. & P. 338.

(6) A.I.R. 1934 Cal. 425.

(7) A.I.R. 1934 Sindh 22.

(3) 1854 6 Cox. C.C. 445·

(8) A.I.R. 1928 Lah •. 382.

(4) AI.R. 1938 Lah. 534·

'959 the proposition was qualified by saying that proof of f\'rishaii J(a11uir receipt and failure to account "is long wav towards J v. proof of misappropriation but not the whole way." The u .. ;o,. of India In that case the books in which receipts ought to -have been entered were not produced and there was Kapur J. absence of" clear accounts." In Ramakkal's case ([1]) the accused was the receiver of currency note found bv child and it was held that mere intention to misappropriate or even preparation to that end was not an offence. It was case brought to the High Court at an intermediate stage for quashing the charge and the High Court did not do so. Bolai Charul1ra KJw,ra's case(') only emphasised that p1·oof of one ele-ment of the criminal breach of trust is not enough for conviction and proof of non-payment of money collec-ted by gomastha must be given by the prosecution. In Bhikchand's case(') it was held that it is only on proof of non-payment of money received by the accused that "presumption will arise of misappropriation." In Pritchard's case(•) also the prosecution did not produce the books of account showing non-payment. All these decisions must be confined to their peculiar facts and in their ultimate analysis do not support the proposition contended for by the appellant. What the prosecution have proved in this case is that the appellant took delivery of the goods on October 2 and 3. His own statement on oath shows that he removed these goods from the Railway Siding. This removal is also proved by documentary evidence in· the form of gate passes. There is also proof of the fact that the goods did not reach the Central Tractor Orga.nisaUon. The appellant has given an explanation that he removed these goods to the Saloon Siding. This explanation has not been accepted. The pro-secution have also proved that the appellant in the first instance ga. ve false explanation that he had not taken delivery of the goods. He had absented himBEllffrom duty and had to be called by the Officer-in-charge. He has set up the defence of removal to ·the Sa.loon Siding which was not accepted.

(3) A.I.R. 193-J Sindh 22.

(t) A.l.R. 1938 Mad. 172.

(4} A,l.R. 1928 Lah. 382.

(z) A.l.R. 1934 Cal. 425.

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The prosecution also set out to prove that the goods z959 were disposed of by the appellant by giving them to one Krishan Kumar Gurbachan Singh who in turn put these at the premi-v. ses of Amar Singh and some steel goods were recover- The Union of India ed from there but the prosecution have neither produced Gurbachan Singh nor has it been proved Kapur J. that the goods are part of the consignment which was taken delivery of by the appellant. If under the law it js not necessary or possible for the prosecution to prove the manner in' which the goods have been misappropriated then the failure of the prosecution to prove facts it set out to prove would be of little relevance. The question would only be one of intention of the appellant and the circumstances which have been been above set out do show that the appellant in what he ha.s done or has omitted to do was moved by guilty mind.

In our opinion the appellant was rightly convicted and we would therefore dismiss this appeal.

.A.J>peal dismissed.

C. S. D. SW AMY

THE STATE

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. W ANCHOO, JJ.)

Prevention of Corruption-Criminal miscondztct in discharge of official duty-Charge in respect of specific instances of corruption found unsustainable on evidence-Conviction based on presumption-V a:tidity-Prevention of Corruption Act, z947, (2 of z947), ss. 5(z)(a), 5(z)(d), 5(3).

The appellant was put up on trial on charges under ss. 5(1)(a) and 5(1)(d) of the Prevention of Corruption Act, 1947. Payments of particular sums by way of bribe were not proved against him. But the High Court, holding that the'appellant's bare statements from the dock unsupported by any other acceptable evidence could not satisfactorily account for the large deposits standing to his credit in his bank accounts raised. the presumption under s. 5(3) of the Act and held him guilty of criminal misconduct in the discharge of his official duty under s. 5(1)(d) of the Act, confirming the condction and sentence passed on him by the

l959 May 21.