LexJIWAN DASS versus STATE OF HARYANA
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A B c D JIWANDASS v. STATE OF HARYANA FEBRUARY 26, 1999 (G.B. PATTANAIK AND M.B. SHAH, JJ.) Criminal Law : Penal Code, 1860 : Section 409. Criminal breach of trust-By public servant-<:harg~stablishing of-lngredients'to be proved-Held: Prosecution must establish (i) Accused is a public servant (ii) is in such capacity entmsted with property or with dominion over it and (iii) he committed criminal breach of tmst in respect of it-Strict proof must be given. Criminal breach of tmst-By public servanH and M, employees of Government Heat Treatment Centre, authorised to bring certain quantity of light diesel oil from Indian Oil Corporation (IOC)--For that purpose bank draft and authority letter given to !-But M took delivery of diesel oil and E signed the cash memo as well as the register in token thereof-Oral evidence of Senior Technical Officer, Government Heat Treatment Centre and Depot Manager IOC confirmed that M took delivery of diesel oil-flowever, diesel oil was found to be deficient by 4300 litres-Subsequently, J gave an under- taking to make up the deficiency-Held: in view of said oral evidence there is no entmstment of diese~ or dominion over the same, to !-Handing over of F bank draft and authority letter to J cannot lead to a contrary inter- ferenc~ven the said undertaking by J cannot amount to confession or admission of guilt on the part of !-Hence, conviction of J under S. 409 not sustainable-However, in view of oral and documentary evidence, Mis rightly held guilty of embezzlement of 4300 litres of diesel oil-flence his conviction G is upheld-Evidence Act, 1872, Ss. 17 and 24. Property-Entrustrnent of--f'roof-Absence of legal and independent proof of entrustrnent-However, partial admission of entrustment obtained by putting a question with regard to entmstment-Held: Such partial admission not sufficient to prove entmstment-Rather, it is improper to even put such a H question. 922 JIWAN DASS v. STATE 923 -.;: The appellants-accused were convicted by the Trial Court Section A 409 of the Penal Code, 1860 and sentenced to undergo rigorous imprison- ment for the three years. The Sessions Judge affirmed the conviction and sentence. The High Court dismissed the revision petition. Hence these appeals. According to the prosecution, J and M, employees of Government B ... Heat Treatment Centre, were authorised to bring a certain quantity of light diesel oil from Indian Oil Corporation (IOC). For that purpose a bank draft and an authority letter were given to J which were deposited in the I OC office M took delivery of the diesel oil and in token there had not only signed on the cash memo but also on the register itself. Senior Technical c Officer, Government Heat Treatment Centre and Depot Manager, IOC in their oral evidence, confirmed that M took delivery of the diesel oil. However, on actual measurement the diesel oil was found to be deficient by 4300 litres. Subsequently, J gave an undertaking that he would make up the deficiency . D ~ Disposing of the appeals, this Court I HELD : 1. To bring home a charge under Section 409 of the Penal Code, 1860, what is necessary to be proved is that the accused is a public servant and in such capacity he was entrnsted with the property in ques- E tion or with dominion over it and that he committed criminal breach of trust in respect of it. The prosecution must strictly prove the necessary elements constituted in the offence. It is true that prosecution need not prove the actual mode of misappropriation and once entrustment of or dominion over the property is established, then it would be for the accused -I to explain as to how the property was dealt with. [926-D-F] F 2. In view of the oral evidence of Senior Technical Officer, Govern- ment Heat Treatment Centre and Depot Manager, India Oil Corporation that M and taken delivery of the diesel oil it must be held that neither there was entrustment of diesel oil to J nor J had any dominion over the G same. Mere fact that J was given the bank draft and authority letter to take delivery of diesel oil does not amount to entrustment of diesel oil to J or that he had dominion over the same. Even the subsequent undertaking t given by J to make up the deficiency cannot amount to a confession or admission of guilt on the part of J. Hence, conviction of J under Section 409 IPC cannot be sustained. However, in view of oral and documentary H 924 SUPREME COURT REPOR
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