1. Heard learned counsel appearing for the respective parties. Admit. Heard finally by consent.
2. By this revision, the applicant has challenged judgment and order of conviction and sentence dated 14.3.2014 passed by learned Chief Judicial Magistrate First Class, Nagpur in RCC No.3249/2008 which is confirmed by judgment and order dated 7.10.2015 passed by learned Additional Sessions Judge-7, Nagpur in Criminal Appeal No.68/2014.
3. By the said judgment and order impugned, the applicant is convicted for offence under Section 409 of the IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay fine Rs.2000/-, in default, to suffer rigorous imprisonment for 1 month.
He is further convicted for offence under Section 466 of the IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay fine Rs.2000/-, in default, to suffer rigorous imprisonment for 1 month.
He is further convicted for offence under Section 477 of the IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay fine Rs.2000/-, in default, to suffer rigorous imprisonment for 1 month.
4. Brief facts for disposal of the revision are as under:
The applicant was working in District Court, Nagpur and posted in the Court of Civil Judge Junior Division, Saoner. He was assigned with duty as Property Clerk in the said court from 1.6.2001 to 31.5.2005. During his tenure as property clerk, he received valuable muddemal property and amounts in various crimes from various Police Stations. Though he has given acknowledgment of receipts of the same on carbon copy of invoice to the police, he has not taken entries of the same in the property registers. He has kept the said amounts with him and used for his own purpose. In some cases, he has taken entry in the property registers, but has kept amounts with him for certain period and belatedly deposited with fine Clerk in CrCD Account. Thus, he has misappropriated amount Rs.2,45,989/- and temporary misappropriation was of Rs.46,929/-.
It was further alleged that when he was serving as Property Clerk, he has not taken entries of properties in property registers and had kept pages blank after property No.24 of 2002 was entered. In general property registers also, there are entries of properties and some pages were kept blank. He has also not obtained signatures of the Presiding Officer and reasons are not mentioned for keeping pages blank. Signatures of the Presiding Officer were not taken for entries of cash amounts bearing property No.28 of 2005 to 44 2005. Similarly, entries were scored and the had not been signed by him and also had not obtained signatures of the Presiding Officer.
On the basis of report of the Superintendent of the said Court, the crime was registered against the present applicant and other co-accused.
5. During investigation, the Investigating Officer has seized relevant documents, recorded relevant statements of witnesses, and after completion of the investigation, submitted chargesheet against the present applicant in the Court of learned Additional Chief Judicial Magistrate. Learned Additional Chief Judicial Magistrate framed charge vide Exh.68.
6. In support of the charge, the prosecution placed reliance on 14 witnesses, they are as follows:
| PW Nos. | Names of Witnesses | Exh. Nos. |
| 1 | Aparna Joshi, informant | 80 |
| 2 | Laxman Nimje, pancha on seizure panchanama | 110 |
| 3 | Suryabhan Gaikwad, pancha | 145 |
| 4 | Shrikant Kolte, Senior Clerk | 163 |
| 5 | Sharad Dupare, pancha | 165 |
| 6 | Sheshrao Babhurde, pancha | 187 |
| 7 | Rajendrasing Thakur, Property Clerk | 234 |
| 8 | Neha Rawanhate | 283 |
| 9 | Manohar Welekar | 299 |
| 10 | Ravi Bhagwat | 301 |
| 11 | Waman Rewatkar | 299 |
| 12 | Ramesh Wadbudhe, Police Head Constable | 516 |
| 13 | Shammi Israil Sheikh | 555 |
| 14 | Vasant Rewatkar | 570 |
8. On the basis of the said oral as well as the documentary evidence, the trial court came to conclusion that there is a sufficient evidence against the present applicant and the offence against him is proved. It is further held that sanction under Section 197 of the CrPC is not required as offences are not committed in discharge of official duty. It is specifically held that the present applicant has committed the offences which are not part of his official duty and, therefore, protection is not available to him.
9. Being aggrieved and dissatisfied with the same, the present applicant has preferred an appeal. The said appeal also came to be dismissed by observing that defence of the present applicant rests on only fact that registers of the concerned police station were not verified. Similarly, the properties were not received by him. However, testimony of witnesses clearly demonstrated that amount Rs.2,45,989/- was entrusted with the present applicant and he failed to deposit the same. The evidence of witnesses further discloses that amount Rs.46,929/- was cumulatively accepted by him in various crimes and was deposited belatedly. In the meantime, he has used the said amount for his personal use. Thus, entries taken by the present applicant sufficiently show that he has received the amount, but he has not deposited the same in CrCD Account and thereby he has committed an offence of “criminal breach of trust” of Rs.2,45,989/- and temporary misappropriation was of Rs.46,929/- and thereby confirmed the conviction.
Hence, the present criminal revision application is filed.
10. Learned counsel for the applicant submitted that as per the prosecution case, the alleged incident of misappropriation was in the year 2002. Whereas, the FIR came to be lodged in the year 2005. The entire prosecution evidence rested upon invoices and original invoices are not brought on record.
As far as seizure of documents are concerned, none of pancha witnesses has supported the prosecution case and, therefore, seizure of documents is not proved. In view of provisions of Criminal Manual, it was the Magistrate who has to verify entries, which are not verified by the Magistrate and, therefore, there is a negligence in verification of property registers by the Magistrate also. As original invoices are not on record, aspect of “criminal breach of trust” itself is not established.
He submitted that the Trial Court as well as the First Appellate Court failed to appreciate the evidence that PW1 Aparna Joshi could not establish that it was the present applicant who was assigned with the duty and it was he who has taken entries or accepted amounts. In absence of proof of signatures on invoices of present applicant, learned Judge of the trial court has wrongly convicted the present applicant. In view of that, the revision deserves to be allowed.
11. Per contra, learned APP for the State strongly opposed the said contentions and submitted that in order to substantiate the contentions, the prosecution has examined 14 witnesses. The material witness is Aparna Joshi, who was, at the relevant time, serving as Superintendent. Her evidence shows that Khaperkheda, Kalmeshwar, Kelwad, and Khapa Police Stations were attached to the joint court. The inspection of the joint court at Saoner was carried out in June 2005. The directions were given to complete moster work with immediate effect. For the said moster work, eight employees were deputed by the order of learned Principal District Judge. While completing the moster work, it was further directed to dispose of property No.41, 41, and 42/2002. These numbers were noted on invoices attached with the file. However, the said numbers were missing in register Exh.30 and, therefore, she called invoice register from the Saoner Police Station and found that in so many matters, the then Property Clerk, i.e. the present applicant, though gave receipts to the concerned police, those properties were not mentioned in the property register and, therefore, she obtained photocopies of those invoices from police station and submitted report to the Presiding Officer. The Presiding Officer has directed to take a search of these cases and on searching of 7-8 cases, she found that entries of muddemal were not taken in the muddemal register. Therefore, verification of the account register was also done and it was noticed that entries of cash muddemal were not taken in the concerned register in respect of amount approximately Rs.13,000/-. The said fact was also brought to the notice of the Presiding Officer, who verified the said fact and submitted report to learned Principal District and Sessions Judge, Nagpur on 7.9.2007. Learned Principal District and Sessions Judge, Nagpur directed Superintendent Shri Sheikh to verify the said fact. Thereafter, the Superintendent prepared list of invoices in respect of Saoner Police Station. Other invoices of other police stations are also verified and it revealed that the present applicant has accepted amounts in various crimes, but has not deposited the same though he has taken entries in CrCD Register and some properties were deposited by him belatedly. This fact is further corroborated by the property registers Exhs.302, 303, 304, and 305. She has also prepared Schedule-I Exh.677 in respect of misappropriated amounts pertaining to Saoner Police Station, Khapa Police Station Exh.681, Kelmeshwar Police Station Exh.684, Kelwad Police Station Exh.686, and Khaperkheda Police Station Exh.687. She submitted that the evidence further shows that Senior Clerk PW4 Shrikant Kolte, working in court, also corroborates the evidence of PW1 Aparna Joshi, PW7 Rajendrasing Thakur attached to the Saoner Police Station, PW11 Waman Rewatkar attached to the Saoner Police Station, PW12 Ramesh Wadbudhe deputed as Moharir with Kelwad Police Station, and PW13 Shammi Israil Sheikh representative of various police stations, who also deposed that they deposited the property and invoices were issued to them.
Thus, she submitted that after scrutiny of evidence of witnesses, it revealed that the present applicant was Property Clerk for the period of 1.6.2001 to 31.5.2005. The procedure for depositing the property, as per Criminal Manaual, that he has to deposit the same by taking entry in CrCD Register. The present applicant has not denied that he was serving as Property Clerk of the relevant period.
The evidence further shows that some pages of relevant registers were kept blank.
Thus, the present applicant has not performed his duty. The intention of the present applicant is apparent and, therefore, he has committed offences under Sections 409, 466, and 477 of the IPC.
12. The present applicant has challenged concurrent findings of the Trial Court as well as the First Appellate Court by preferring this revision.
13. As far as scope of revision is concerned, it is well settled that while exercising revisional powers, cardinal principles to be kept in mind is that scope of revision is very limited. Only to see as to correctness, legality, and propriety of any finding and sentence of an order. This Court or the Sessions Court is empowered to call for and examine the record of any proceeding pending before any inferior criminal court situates within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding and sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
14. In the case of Bindeshwari Prasad Singh @ B.P. Singh and anr vs. State of Bihar (now Jharkhand), reported in (2002)6 SCC 650, the Hon’ble Apex Court held as under:
“….. The High Court was not justified in re- appreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.”
15. In another decision, in the case of Ashish Chadha vs. Smt.Asha Kumari and anr, reported in (2012)1 SCC 680, the Hon’ble Apex Court observed that, the High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not.”
16. Thus, in its revisional jurisdiction, this court can call for and examine record of any proceeding for the purpose of satisfying itself as to the correctness, legality, and propriety of any finding or sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice, but the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a Second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for this court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
17. In the light of the above well settled principles, the present revision application requires to be decided.
18. The evidence on record shows that the present applicant was Property Clerk from 1.6.2001 to 31.5.2005. The allegations against the present applicant are that during his tenure as Property Clerk, he has accepted properties received from the concerned police station and though he has given acknowledgment, he has not taken entries to that effect in the property register and has utilized the cash amounts for his own benefit. He has utilized the cash amount of Rs.2,45,989/- for his own use and also temporarily utilized amount Rs.46,929/-, which was subsequently deposited.
To substantiate the said allegation, the prosecution has examined the material witness PW1 Aparna Joshi. From her evidence, it reveals that Khapa, Kalmeshwar, and Kelwad Police Stations were attached to the joint court. The inspection of the joint court at Saoner was carried out in June 2005. In view of that inspection, directions were given to complete moster work and, therefore, eight employees were deputed to complete the moster work. It was further directed to dispose of property Nos.40, 41, and 42 of 2002. These numbers were also noted on the invoice attached with the file. It was noticed by her that the properties are not mentioned in the register Exh.302 and, therefore, she called invoice register from the Saoner Police Station and it revealed to her that in various in matters, the present applicant, who was working as Property Clerk, has given receipts to the concerned police stations, however those properties were not mentioned in the property registers. She obtained photocopies of those invoices from the police station reported the matter to the Presiding Officer. The Presiding Officer directed to take a search of cases and after searching of 7-8 cases, she found that entries of muddemal were not taken in the muddemal register. In view of that, she also verified the account register and noticed that entries of cash muddemal were not taken in the concerned register in respect of amount approximately Rs.13,000/-. This fact was also brought to the notice of the Presiding Officer. After verifying the fact, the Presiding Officer reported to learned Principal District and Sessions, Nagpur on 7.9.2007. Learned Principal District and Sessions, Nagpur deputed Superintendent Shri Shaikh to verify the said fact. On 9.9.2007, PW1 Aparna Joshi along with Superintendent Shri Shaikh prepared list of invoices in respect of Saoner Police Station. Therefore, Superintendent G.B.Patil has verified remaining invoices and submitted report to learned Principal District and Sessions, Nagpur. Thereafter, considering misappropriation of properties, as per directions of Learned Principal District and Sessions, Nagpur, PW1 Aparna Joshi lodged report at Saoner Police Station. The said report is at Exh.81.
19. Perusal of the said report, FIR Exh.82 was registered. Thereafter, she also lodged reports Exhs.86, 87, 88, and 89 in respect of muddemal properties of Khapa, Kalmeshwar, Kelwad, and Khaperkheda Police Stations. Subsequently, all FIRs are amalgamated and the investigation was completed and chargesheet was filed.
20. The evidence shows that Exh.302 is register of the year 2002 wherein muddemal properties upto property No.24 were mentioned and, thereafter, there are no entries in the property register. On verification of invoices of the Saoner Police Station, it reveals that in general property registers since 26.7.2002 and 19.4.2002 no entries after property No.24 of 2002 were taken. Property Nos.40, 41, and 42 of 2002 includes one stone, brick pieces, and iron rod. On verification of the register, it further reveals that fictitious property numbers were mentioned in the invoices, but entries of those properties were not mentioned in the muddemal register and cash muddemal properties. Therefore, CrCD Register was also inspected and it is found that those cash properties are not entered in the CrCD Register. Exh.303 muddemal register No.10 was also examined and it was noticed that muddemal properties upto 2003 were noted in the register. Perusal of invoices received from Saoner Police Station shows that muddemal property numbers onward 150 of 2003 were mentioned on invoices, but entries of the same are not taken. Similarly, in property register No.11 Exh.304 it was noticed that property numbers onward 36 of 2004 were noted, but entries of those properties were not taken in muddemal register No.11 Exh.304 for the year 2004. at property register No.12 Exh.305, overwriting was noticed against entry No.28 of 2005 to entry No.44 of 2005 which was in respect cash amount. Signatures of the Presiding Officer was also not taken and there was overwriting and the overwriting was not initialed either by the present applicant or the Presiding Officer.
21. Separate registers for the year 2003, 2004, and 2005, were prepared. Despite the fact that register of the year 2003, after entry of 156/2003, was blank. Similarly, register of the year 2004, after entry No.36 of 2004, was kept blank. PW1 Aparna Joshi has prepared Exh.677 Scheduled-I in respect of misappropriated property and amount pertaining to the Saoner Police Station was to the tune of Rs.1,05,663/-. Exh.678 Scheduled-II is in respect of misappropriated amount Rs.11,388/-. Exh.680 Schedule-1 is in respect of misappropriated amount pertaining to Khapa Police Station comes to Rs.45,165/- and Schedule-II of temporary misappropriated amount comes to Rs.9,444/- pertaining to the Khapa Police Station. Schedule-I Exh.682 is in respect of misappropriated property of which amount comes to Rs.66,426/- and Exh.683 Schedule-II is in respect of temporary misappropriated amount of Rs.1,974/- pertaining to the Kalmeshwar Police Station. Exh.684 Schedule-I is in respect of misappropriated amount of Rs.30,258 and Exh.685 Schedule-II is in respect of temporary misappropriated amount of Rs.19,297/- pertaining to the Kelwad Police Station. Exh.686 Schedule-I is in respect of misappropriated amount of Rs.14,601/- and Exh.687 Schedule-II is in respect of temporary misappropriated amount of Rs.4,526/- pertaining to the Khaperkheda Police Station.
22. During her cross examination, an attempt was made to show that during the inspection for the period from 1.10.2001 to 31.5.2005, no irregularity was notice, but she has explained that compliance of the inspection note for the year 2005 was going on and the Presiding Officer has passed the order and prepared team of employees for completion of moster work and at that relevant time, while complying with the directions for disposal of the property Nos.40, 41, and 42, this misappropriation was brought to the notice. An attempt was made to show that she has no personal knowledge, however being she is a Superintendent, she has deposed on the basis of documents maintained during day to day affairs at the relevant time. Much stress was given on the aspect that no complaint was received from any police stations attached to the Saoner Court, but mere complaint was not received is not sufficient to come to conclusion that mere non filing of the complaint would be sufficient to say that the applicant has not committed any offence.
23. Thus, as far as these documents Exhs.677 to 687 clearly established misappropriation at the hands of the present applicants.
24. The evidence of PW1 Aparna Joshi is further corroborated by PW4 Senior Clerk Shrikant Kolte working at the the Court of Saoner, who deposed that on the directions of Smt.Aparna Joshi that entry is to be taken of the final order regarding property Nos.40, 41, and 42 in the muddemal register. It was noticed by him that property numbers were only upto 24 of 2002 and and, thereafter, pages were kept blank. Therefore, he brought this fact to the notice of PW1 Aparna Joshi. Despite the cross examination, nothing is elicited to falsify his version.
25. The evidence of PW7 Rajendrasing Thakur and PW11 Waman Rewatkar shows that they were attached to the Saoner Police Station. The offence was registered regarding misappropriation of property of Rs.1,50,000/- and the said amount was deposited by the police station in the year 2002 and obtained the signature of the concerned clerk on invoice Exh.279. He has also deposited other properties vide Challans Exhs.280 and 281, which were deposited by him.
26. The evidence of PW11 Waman Rewatkar categorically shows that he was attached to the Saoner Police Station since 1996 to 1.6.2006. The duty assigned to him was to take note in muddemal register of police station in respect of muddemal seized. He used to send the property to the court and used to maintain invoice challan in the office. On some occasions, he used to visit the court. The invoice challans Exhs.332 and 333 and 341 to 495 are shown to him. The same were invoices in respect of properties deposited by the said police station.
During his cross examination, efforts were made to extract from him that these invoices were not verified with the entries in the police station. However, he stated that he personally handled the muddemal register and invoices were returned by him.
27. PW12 Ramesh Wadbudhe, was serving as Moharir with Kelwad Police Station from 2003-2009 and used to carry muddemal from the police station to the court. His evidence also shows that invoice was given to him against the property registered by him. Two registers B & C were seized vide seizure Exh.517. He has handed over the invoices Exhs.518 and 445 to the present applicant, which bear the signature of the present applicant.
28. PW13 Shammi Israil Sheikh is also police constable dealing with the court work for the period 2001 to 2004. He was assigned with the duty to take muddemal from the Saoner Police Station to the Court and hand over the same to the present applicant. Invoices Exhs.365 to 415 were handed over to him by the present applicant. He has deposited the respective properties against invoices Exhs.342, 344 to 364. The said invoices bear signatures of the present applicant.
29. The evidence of PW14 Vasant Rewatkar also shows that he was also working as police constable and dealing with the court works. The present applicant used to receive the properties and issue invoices to him. He has deposited the properties against which invoices challan Nos.577 to 641 were given to him. He has deposited the said properties vide challan Exhs.642 to 654.
30. Thus, the evidence of these witnesses, especially PW7 Rajendrasing Thakur, PW11 Waman Rewatkar, PW12 PW12 Ramesh Wadbudhe, PW13 Shammi Israil Sheikh, and PW14 Vasant Rewatkar, shows that they were assigned with the duty to hand over the muddemal and accordingly, they have obtained the invoices against the muddemal deposited by them.
31. Another material witness examined is PW10 Ravi Bhagwat who was as Joint CJJD and JMFC at Saoner from 15.5.2005 to 31.5.2008. His evidence shows that during the inspection for the period from 6.5.2002 to 18.6.2005, as per the inspection note, direction was given to complete moster work. During completion of the moster work, it was noted that no final order was entered regarding property Nos.40 of 2002, 41 of 2002, and 42 of 2002 and it was noticed that the last entry of the property was 24 of 2002 and, thereafter, pages were kept blank. Therefore, as per his directions, the information was collected from Saoner, Kelwad, Kalmeshwar, Khapa, and Khaperkheda Police Stations and it was found that the Property Clerk has mentioned property numbers on those invoices, also put the stamp of the court on those challans, and put his signatures, but not deposited the said muddemal or the amounts. The properties were cash amounts and general muddemal. There was misappropriation of Rs.2,43,113/- and temporary misappropriation was of Rs.46,629/-. The temporary misappropriation means the amount was used by the present applicant for his personal use for some time and it was deposited belatedly.
32. Thus, the evidence of PW10 PW10 Ravi Bhagwat corroborates the evidence of PW1 Aparna Joshi.
33. It was consistently argued that the original registers of the police stations are not verified and it is not brought on record whether such properties were seized and entered in the muddemal register of the police stations.
34. After going through the judgment impugned in the present revision, it shows that the Trial Court as well as the First Appellate Court, on scrutinizing the evidence, observed that the applicant was Property Clerk for the period from 1.6.2001 to 31.5.2005.
35. The procedure for depositing the properties is enumerated in the Criminal Manual. Paragraph Nos.67, 69, 70, 71, and 73 of the Criminal Manual read as under:
“67. (1) When property is produced before a Court with a list, the list should de exhibited and it should be seen that each article is separately marked and numbered for identification.
(2) Where any of the articles mentioned in the list have been sent to the Chemical Analyzer for examination, the corresponding numbers given to those articles by the police while forwarding the articles to the Chemical Analyzer, as well as the numbers given to them by the Chemical Analyzer, should also be shown in the list.
(3) If the property is seized without a list, a list of it should be prepared and exhibited. This list should also give where necessary, the particulars referred to sub- paragraph (2).
(4) All the Sessions Judges and Magistrates should get a map of the Record Room as well as a map of the Muddemal Room of their Courts prepared, showing therein the racks with numbers and category of record of Muddemal kept on each rack, and should see that the said map is fixed at the entrance of each Record Room and Muddemal Room of their Courts.
69. After the receipt of Muddemal and other property along with the record of every Criminal Case in the Court by the Criminal Sheristedar-cum-Clerk, it should be immediately entered in the property Register to be maintained in the following form and a note of the Property Register Number should be taken on the chargesheet (and in case of non-receipt of the property, a note should also be taken that it is not received with the charge-sheet).
The primary responsibility of making the entries of the property in the Property Register and taking the notes as aforesaid on the charge-sheet shall ordinarily be of the Senior Clerk in the Court of a Magistrate and of the Nazir in the Sessions Court. Such entries made in the Property Register and notes taken on the charge- sheet should be verified and countersigned by the Magistrate or by the Clerk of the Court in the Sessions Court in order to indicate that the property produced in the Court has actually been entered.
Before passing any first orders, the Presiding Officer should verify and confirm that the entries in the Property Register and notes on the charge-sheet have duly been made accordingly by the persons concerned, and in case they are not made accordingly, direct the Nazir and the Clerk concerned to make the necessary entries in the Property Register and take the necessary notes on the charge-sheet before passing any first orders in that behalf.
While sending all the papers in the cases placed on dormant file to the District Record Rooms, according to the instructions contained in para 83(iii) of Chapter VI and paragraphs 17(9) and (10) of Chapter XX of Criminal Manual, all the articles of Muddemal property in such cases should not be returned or sent back to the police stations concerned for safe custody under any circumstances, but should normally be preserved or kept in the custody of the Courts of the Magistrates wherein cases are filed or trial is pending. Only in exceptional cases, when there is no sufficient space or accommodation available for the custody of such property in such Courts of the Magistrates, the articles of such muddemal properties should be sent to the Nazir of the Sessions Court concerned for sale custody after obtaining the orders of the District and Sessions Judge in that behalf.
For the purpose of making entries of such muddemal articles received in the District Court from the Criminal Courts, separate and common registers should be maintained in the District Court. Such register should not be Court-wise but they should contain a column for entries indicating the Courts from which the properties are received. The names of the Courts from which the properties are received should be noted specifically in red ink in column 3 of such register above the Criminal Case numbers so as to facilitate the distinguishing of muddemal properties and the different Courts from which they are received.
When the muddemal properties and the records in the cases on the dormant file are sent to the District Courts for the safe custody and preservation, the Magistrate concerned should call back the records of such cases periodically to Issue warrants or summonses, as the case may be.
The muddemal property herein does not include valuable property.
| Sr. No. 1 | Date of Receipt of the property 2 | Criminal Case No. 3 | Name of parties Complainant/Accused 4 | Description of articles with particulars and value (weights in case of valuables) 5 | Initials of the Magistrate or Clerk of the Court, Sessions Court as to the receipt. 6 |
| Order of Magistrate or Judge regarding disposal with date 7 | Date of issue of notice for return of the muddemal property to the claimant and the date fixed for appearance. 8 | Date and manner of final disposal 9 | Signature of the recipient of the property with date 10 | Name, signature and address of the person identifying the recipient of the muddemal property 11 | Signature of the Magistrate or Clerk of the court, Sessions Court. 12 | Remarks, if any 13 |
(b) The following shall be treated as valuable properties:
(i) All cash consisting of current coins and currency notes irrespective of the total value;
(ii) Gold and silver coins and currency notes withdrawn from circulation or which have ceased to be legal tender;
(iii) Counterfeit coins and currency notes;
(iv) Gold, Silver and Platinum in whatever form including articles or ornaments thereof;
(v) Precious stones, pearls and corals including articles or jewellery made from or set with these;
(vi) Wrist watches, time-pieces, transistors, fountain- pens and such other costly articles of luxury;
(vii) Curios and antiques of considerable value;
(viii) Opium, Ganja and other narcotics;
(ix) All valuable securities, including Government and other promissory notes negotiable instruments of all kinds, debenture and share certificates security deeds and deposit receipt and certificates;
(x) Title deeds relating to immovable property;
(xi) Important original documents; and
(xii) Such other articles which the Magistrate or the Judge thinks should be regarded as valuable articles having regard to their utility and value, and the attraction the articles have for the public generally.
71. All Judicial Magistrates and clerks of the Court of Session shall have a test check of 10 percent of the items of property every month and a complete check once in six months in case of non-valuable muddemal property with reference to property register. They shall verify the valuable property with reference to valuable property register at least once a month. They shall make an endorsement with date about such verification, in the remarks column of the above register and also make a report to the Sessions Judge every month of having verified the valuable muddemal property and every six months of having verified the other muddemal property.
73. (1)(a) As the scope for loss of muddemal property is greater in the case of disposed of cases, the Presiding Officer should see that the property in non- appealable cases is disposed of as soon as possible after such cases are decided
(b) In appealable cases, where the appeal lies to the Sessions Court or the District Magistrate, the muddemal property may be disposed of after a period of 90 days from the date of the decision of the case, if in the meanwhile no intimation of an appeal having been fled has been received, but if such animation is received before that period, such property shall not be disposed of until the appeal is decided.
(c) In appealable cases, where the appeal lies to the High Court but arises from the Metropolitan Magistrate's Court, the muddemal property may be disposed of alter a period of 180 days from the date of the decision of the case, if in the meanwhile no intimation of an appeal having been filed in the High Court has been received but if such an intimation is received before that period, such property shall not be disposed of until the appeal is decided by the High Court.
(d) In appealable cases, where the appeal lies to the High Court but a from the Sessions Court, the Muddemal property may be disposed of after a period of one year from the date of the decision of the case, if in the meanwhile no intimation of an appeal having been filed in the High Court has been received, but if such an intimation is received before that period, such property shall not be disposed of until a period of one year expires from the date of the decision of the appeal to the High Court, and if in the meanwhile an intimation is received by the Sessions Court of an appeal having been filed before the Supreme Court, such property shall not be disposed of until the appeal is decided by the Supreme Court.
(2) Muddemal should be restored, when a non- appealable sentence is passed on the expiration of two months from the date of the sentence, except in the case of livestock, or property subject to speedy and natural decay, which may be restored at once, and except in cases in which a bond is executed under sub section (2) of Section 452 of the Code of Criminal Procedure, 1973.
(3) In every case, after the expiry of the respective periods mentioned in that behalf in sub-paragraphs (1) and (2) above, the Magistrate should issue a notice in duplicate or by a Registered Post A.D. or both to the person entitled to receive back the muddemal property and fix a date for appearance of such person for receipt of the property. In case of dispute or doubt regarding the identity of the claimant, the Court may, in its discretion, direct the persons claiming claiming to be entitled to receive the property under the orders of the Court, to furnish such security as it deems fit for return of the property or its value. If, after intimation, the person fails to appear before the Court to receive the muddemal on the fixed date or, if due to want of address or otherwise it is not possible to give the notice to the said person, the muddemal should be sold at his cost by public auction and the amount so realized be credited to Criminal Deposits. No sale will be necessary in the case of property which consists of cash only. The fact of issue of the notice as above, of appearance of the claimant on the date fixed for receipt of the Muddemal Property and actual delivery of the property to the recipient on that date or any other date to which the matter may be adjourned, should be entered in the Property Register.
Provided that if the value of the property is less than Rs.100 the person entitled to receive back the muddemal property may be served with a notice issued under certificate of posting.
(4) A quarterly report should be submitted to the Sessions Judge along with the one referred to in paragraph 71, to the effect that the muddemal property in cases decided six months prior to the date of the report has been disposed of. The report should also state the number of cases in which the muddemal property remained to be disposed of, with the necessary explanation therefor.
In order to enable the Presiding Officers and the Clerks of the Courts to verify the muddemal property with reference to the entries in the Property Register, on the first of every month, the Senior Clerk in the Judicial Magistrates' Courts and the Nazir in the Sessions Court should prepare the Balance Sheets of undisposed of Muddemal Property, showing only the numbers of the cases, the years and the serial numbers in the Property Register. It is, however, not necessary to copy out the details of the articles therein. Every day new additions, if any, should be entered therein and the entries of the cases from the Balance Sheets in which Muddemal Property has been disposed of should be struck off.
The Senior Clerk and Nazir should obtain the signatures of the Presiding Officers and the Clerks of the Courts respectively on such Balance Sheets and the same should be kept handy by the Muddemal Clerks.
The Judicial Magistrates and the Clerks of the Courts should verify the Muddemal Property with the help of the Balance Sheets. The Senior Clerks and the Nazir should be held solely responsible for the preparation and the correctness of the Balance Sheets.
All the Judicial Officers and the members of the staff should bear in mind that it is their duty to see that proper precautionary measures are taken every time scrupulously for prevention of thefts of muddemal properties from their Courts.
Whenever the Clerks in charge of Muddemal articles is transferred or if any charge is made in his duties, the said Clerk should hand over the Muddemal articles to the clerk taking over and the latter should take such Muddemal articles in his charge after verifying the same with reference to the Property Register, (which includes both Property Registers viz, Valuable and General) and with reference to the monthly Balance Sheet.”
36. The applicant has not challenged the fact that he was serving as Property Clerk at the relevant period. In view of the procedure laid down, he was under obligation to take entries in the property registers after due verification of the said properties and to give acknowledgment on the copy of the invoice challan. The proved documents which are already referred sufficiently show that it was the applicant who has received the said muddemal properties, but the same were not entered in the property registers. The evidence on record clearly demonstrates that the properties mentioned in the invoices, though accepted, not entered into the relevant registers. There was final order of disposal of these properties after the disposal of cases, but the said properties were not found in the registers. The evidence of witnesses, as discussed above, clearly demonstrates that amount of Rs.2,45,989/- was entrusted to the present applicant to which he failed to deposit the same. CrCD Register No.7 i.e. relevant entry Exh.674 demonstrates that cash amount of Rs.1,155/- was received on 6.12.2001 and deposited on 19.1.2002 vide CrCD NO.229 of 2002. Exh.675, the another entry, demonstrates that cash amount of Rs.52/- was received on 4.12.2001 and deposited on 19.1.2002. Entry Exh.676 demonstrates that cash amounts of Rs.755/- and Rs.705/- were received on 28.12.2001, but the same were deposited on 28.1.2002 vide CrCD Nos.232 of 2002 and 233 of 2002.
37. Thus, Schedule of temporary misappropriation Exhs.678, 683, and 685 tallies with the entries in the property registers and the CrCD Registers. Thus, temporary misappropriation was of Rs.27,629/-. Similarly, regarding general property register Exh.302 shows entries of property Nos.59 of 2002 and 24 of 2002 and, thereafter, pages were kept blank. In general property register No.10 Exh.303, entries are taken to property No.1 of 2003 to 156 of 2003 and page Nos.141 to 200 are kept blank. Similar is the position in respect of register No.11 Exh.304 wherein page Nos.26 to 200 were kept blank and Exh.305, property register No.12, wherein also the pages were kept blank. Entry Nos.28 of 2005 to 44 of 2005 in property register Exh.305 in respect of cash amount were scored, but the signatures of the Presiding Officer were not obtained. Thus, these entries demonstrate that the cash amounts were received as muddemal, but the said cash amounts were not transferred to the CrCD Registers.
38. Thus, the entire evidence adduced by the prosecution sufficiently shows that the applicant has committed “criminal breach of trust” and misappropriated amount of Rs.2,45,113/- and temporary misappropriation was of Rs.46.629/-.
39. Section 409 of the IPC deals with criminal breach of trust by public servant, or by banker, merchant or agent, which is reproduced as under:
“409. Criminal breach of trust by public servant, or by banker, merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
40. What amounts to “criminal breach of trust” is provided under Section 405 of the IPC, which reads as follows:
“405. Criminal breach of trust.— Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
Explanation 1.— A person, being an employer of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.— A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Illustrations
(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriate them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’s direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company’s paper. A dishonestly disobeys the direction and employs the money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’s advantage to hold shares in the Bank of Bengal, disobeys Z’s directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company’s paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.”
41. Thus, to attract the offence under Section 409 of the IPC, two ingredients are to be established namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and ii) the accused dishonestly misappropriated or converted it to his own use to the detriment of the persons who entrusted it.
42. A crucial question is, whether essential ingredients of the offence under Section 409 of the IPC are attracted.
43. The evidence adduced is already demonstrated that involvement of the present applicant is established by the prosecution on the basis of the evidence adduced before the court.
44. Sections 407 to 409 of the IPC make special provisions for various cases in which property is entrusted to the enumerated categories of persons who commit the offence. To constitute an offence of criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use, or use in violation of legal direction or of any legal contract: and the misappropriation or conversion or disposal must be with a dishonest intention. When a person allows others to misappropriate the money entrusted to him that amounts to a criminal breach of trust as defined by Section 405 . The section relatable to property in a positive part and a negative part. The positive part deals with criminal misappropriation or conversion of the property and the negative part consists of dishonestly using or disposing of the property in violation of any direction and of law or any contract touching the discharge of trust.
45. If the evidence in the present case is taken into consideration, it sufficiently shows that the amounts were entrusted to the present applicant and he has misused the same for his own use and this fact was rightly considered by the Trial Court as well as the First Appellate Court.
46. The Hon’ble Apex Court has laid down litmus test to ascertain, whether case under Sections 409, 420, and 477A of the IPC is made out or not.
47. In Criminal Appeal No.5/2010 decided on 13.12.2021 (N.Raghvender vs. State of A.P.), it has been observed that, “the entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression 'criminal breach of trust' is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust.”
It has further been held that, “unless it is proved that the accused, a public servant or a banker etc. was 'entrusted' with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. 'Entrustment of property' is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was 'entrusted' to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the 'entrustment' is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner.”
48. In the light of the above said observations, basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it.
49. As far as “intention” is concerned, for which direct evidence would not be available, but certain tests envisage that it can be ascertained on the basis of circumstances on record.
50. The evidence of witnesses clearly shows that the present applicant was acting as Property Clerk and was having custody and domain over the Court’s properties which include general properties and cash amounts. The cogent and reliable evidence adduced shows and demonstrates that the applicant working as Property Clerk accepted amounts and issued invoices, however he has not deposited the said amounts and has not transferred the same to CrCD Register and he has used the same for his personal use. Therefore, there is a sufficient evidence which conclusively establishes that the present applicant was incharge of the said properties. He has misappropriated the amounts which were deposited and some amounts were for temporary period used by him for his personal use and thereby he has committed the offence of “criminal breach of trust.”
51. Admittedly, the present applicant was working in a Court where several litigants are approaching for getting justice. The society is having an utmost faith in the judicial system. In the light of the above faith, integrity and discipline from the court staff is expected. The integrity and honesty are essence of organizations like courts. The discipline is absolutely imperative and no compromise can be made as far as integrity of employees is concerned. Looking to the nature of services, which the applicant was rendering, sense of integrity, commitment, and discipline are paramount. It is the duty of the applicant to safeguard interests of the public who are approaching the court for justice. The act of the applicant is against interests of litigants and serious in nature and, therefore, considering the seriousness of allegations, no protection can be granted to him.
52. The Hon’ble Apex Court, in the case of Anwar Chand Sab Nanadikar vs. State of Karnataka, reported in 2003 (10) SCC 521, observed that, “the court of law is described as “A Temple of Justice.” Logically, the Presiding Officer is “Pujak” and members of staff are “Sewaks.” It is, therefore, a matter of grave concern when a "Sewak" is alleged to have misappropriated funds of the temple.
53. Learned counsel for the applicant has also raised an issue that in view of Section 197 of the CrPC, a sanction was not obtained before prosecuting the present applicant.
54. Language and tenor of Section 197 of the CrPC makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty.
55. Thus, protection under Section 197 of the Code has its limitations and protection is available when the act done by public servant is reasonably connected with discharge of his official duty and official duty is not merely a cloak for doing the objectionable act.
56. A careful reading of Section 197 of the CrPC unequivocally delineates a statutory bar on the Court's jurisdiction to take cognizance of offences alleged against public servants, save without the prior sanction of the appropriate government. The essential precondition for the applicability of this provision is that the alleged offence must have been committed by the public servant while acting in the discharge of, or purported discharge of, their official duties. The guiding principle governing the necessity of prior sanction stands well settled. The only enquiry required is, whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated.
57. In view of the above settled law, admittedly, the act committed by the present applicant was not his official duty and, therefore, protection under Section 197 of the CrPC is not available with him.
58. In the facts and circumstances of the present case and the evidence discussed above, offences under Sections 409, 466, and 477 of the IPC are made out against the present applicant.
59. In the light of the well settled principles, while exercising revisional powers, the revisional court cannot reappreciate the evidence and cannot come to a different conclusion in a revision. The only scope of revision is to see, correctness, legality, or propriety of findings, sentence, or order.
60. In the revisional jurisdiction of this court, re- appreciation of the evidence is not permissible. The Trial Court and the First Appellate Court have appreciated the evidence and there is a consistent finding as to involvement of the present applicant in the alleged offence and, therefore, I do not find any reason to interfere with the judgment and order impugned in the revision.
61. In view of that, the revision being devoid of merits is liable to be dismissed and the same is dismissed. The applicant shall surrender before the Superintendent of Central Jail, Nagpur to undergo the sentence on 17/04/2026.
Revision stands disposed of.