MUSTAFIKHAN versus STATE OF MAHARASHTRA

Citation: [2006] SUPP. 10 S.C.R. 15 · Decided: 04-12-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

J 
MUSTAFIKHAN 
v. 
ST A TE OF MAHARASHTRA 
DECEMBER 4, 2006 
[DR. ARIJITPASAYAT AND S.H. KAPADIA,JJ.] 
Penal Code, 1860-Section 409-Criminal breach of trust-
Misappropriation of Government money-By Public Servant-Payments made 
A 
B 
to fictitious persons proved-Entrustment of money admitted by the accused- C 
Conviction-Justification of-Held: Conviction is justified-Where entrustment 
of property is admitted by the accused, burden to prove the discharge of the 
entrustment lies on the accused-Evidence-Burden to prove. 
Appellant-accused was incharge of execution of construction of 
irrigation tanks under a Government Scheme. During a particular period D 
same set of21 labourers were shown to have been engaged at one and the 
same time for construction of the tank at two places. Payments were shown 
to have been made by the appellant. In reality bogus names were shown. The 
investigation revealed that appellant was responsible for misappropriation. 
Accused No. 2 was a labourer engaged and he was made to put his thumb 
marks on the muster rolls to show receipt of monies by fictitious persons. E 
Both the accused were charged under Sections 409, 407, 468 read with 
Section 109 IPC and Sections 5(1)(d) and 5(2) of Prevention of Corruption 
Act, 1947. Trial Court convicted appellant-accused of all the charges except 
under Section 467 IPC. Accused-2 was acquitted of all the charges. On appea~ 
High Court convicted the appellant only under Section 409 IPC and acquitted F 
him of all the charges. Hence the present appeal. 
Dismissing the appeal, the Court 
HELD: 1. In View of the clinching evidence tendered by the prosecution 
which has been analysed at great length by the trial Court and the High Court, G 
there is no scope for interference. 119-F-G) 
2. In order to sustain a conviction under Section 409 IPC the prosecution 
is required to prove that (a) the accused, a public servant was entrusted with 
property of which he has duty bound to account for, (b) the accused had 
15 
H 
.. 
16 
SUPREME COURT REPORTS (2006] SUPP. IO S.C.R. 
A misappropriated the property. Where the entrustment is admitted by the 
accused, it is for him to discharge the burden that the entrustment has been 
carried out as accepted and the obligation has been discharged. [18-D-FJ 
Jagat NarayanJha v. State of Bihar, [1995[ 4 SCC 518, relied on. 
B 
3. It is not necessary or possible in every case to prove as to in what 
precise manner the accused had dealt with or appropriated the goods. In a 
case of criminal breach of trust, the failure to account for the money, proved 
to have been received by the accused or giving a false account of its use is 
generally considered to be a strong circumstance against the accused. 
C Although onus lies on the prosecution to prove the charge against the accused, 
yet where the entrustment is proved or admitted it would be difficult for the 
prosecution to prove the actual mode and manner of misappropriation and in 
such a case the prosecution would have to rely largely on the truth or falsity 
of the explanation given by the accused. [18-F-H; 19-A) 
D 
4. It was found by the trial Court and the High Court with reference to 
the evidence on record that payments were shown to have been made to persons 
who were found to be fictitious. PW8 - a Finger Print Expert after comparing 
the thumb prints, he gave his opinion that the disputed prints were not of any 
of the six persons whose prints were submitted to him for examination, but 
were of one and the same person. He found that prints in the muster rolls of 
E place 'D' were identical with the finger print of the acquitted accused. In 
respect of the muster rolls of place 'K' he found lhat the finger prints were 
not identical with the specimen impressions of six persons named above, but 
they were identical inter se, that is they were of the same person. The evidence 
of the village kotwal, also shows that there was no such person in the village 
F to whom the appellant claimed to have made payment [19-B-F) 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1261 of 
2006. 
From the final Judgment and Order dated 22-2-2006 of the High Court 
G of Judicature at Bombay, Nagpur Bench, Nagpur in Crl. A. No. 32511996. 
Garvesh Kabra, Ms. Deepti R. Mehrotra and Ravi Prakash Mehrotra for 
the Appellant. 
Aniruddha P. Mayee for the Respondent. 
H 
The Judgment of the Court was delivered by 
j 
MUSTAFIKHAN v. STATE OF MAHARASHTRA [PASAYAT,J.] 
17 
Dr. ARI.TIT PASAYA

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