SUPERINTENDENT & REMEMBERANCER OF LEGAL AFFAIRS,WEST BENGAL versus S. K. ROY

Citation: [1974] 3 S.C.R. 348 · Decided: 12-02-1974 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Appeal(s) allowed

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Judgment (excerpt)

348 
SUPERINTENDENT & REMEMBERANCER OF LEGAL 
A 
AFFAIRS,. WEST BENGAL. . 
v. 
S. K. ROY 
February 12, 1974. 
f.M. H. BEG, Y. V. CHANDRACHUD AND R. S. SARKARIA, JJ.] 
B 
~Vest Bengal Crin1i11al. Law A1nend1ne11t (Special Court) 
~let, 1949-Jtein 
2 of the Schedule read wtth s. 409 J.P.C.-What constitutes criminal breach of 
lrlHf. 
The respondent, a public servant, was tried by a Special Court constituted 
under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, 
for collecting premiums and issuing receipts on behalf of LI.C. in respect of the 
policies of some Pakistani Policy Holders. He was charged for criminal breach 
C 
of trust in respect of such premium5 by making false adjustments of receipts of 
such premiums through the Bank in Pakistan in relevant books of accounts. 
Item 2 of the Si;:hedule in the Act describes the offence as an "offence punish-
able u/s. 409 l.P.C. if committed by a public servant or by an agent of the 
Government in respect of property with which he is entrusted. 
The Special Court came to the conclusion that the respondent purported to 
act, at the relevant time, as a public servant, but as no money was entrusted to 
D 
the respondent in his capacity as a public servant, the respondent was entitled to 
an aquittal for an alleged offence punishable u/s. 409 I.P.C. under the 
proviso 
to sec. 4(1) of the Act, there -could be no conviction for that offence. 
Against the acquittal of the respondent, the Legal Remembrancer of West 
Bengal filed an appeal before the High Court. The High Court also held that !he 
respondent, having no power to receive money in cash from the policy holders 
did not act in his capacity of a public servant while he received the money from 
the policy holders in ca~h in Caolcutta. 
Although it did not quash the order of 
E 
acquittal, the apparent result of its findings was that the trial of the respQndent, 
b~ing without jurisdiction, was null and void, so that the respondent could be 
retired. 
The only question for decision was whether the respondent be said to be 
acting in his capacity as a public servant when he received the monies from the 
policy-holders which he misappropriated. Allowing the appeal. 
HELD : (i) The gravamen of the offence of Criminal breach of trust is the 
F 
dishonest misappropriation of the money or property which comes into the posses-
sion or under the control of a public servant who has the ostensible authority to 
receive it, even though, technically speaking, from the point of view of the dis-
tribution of departmental duties under internal rules of an office, it may not be 
within the scope of his authority or duty to accept the money. The fact that a 
public servant acts fraudulently in the exercise of his duties as a public servant 
to get dominion or control over some property will be an aggra\·ating and not 
an exculpating circumstance. The ";:ntrustment" results from what !he person 
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handing over money or property is made to think, understand and believe about 
the purpose for which he hands over money or p_roperty to a p1;1blic serv~nt. If 
this takes place because of and due to the exercise of the offic1al authonty, the 
requirements of S. 409 I.P.C. are satisfied. To constitute an offence u/s 409, 
I.P .C., it is not required that misappropriation must necessarily take place after 
the <.:reation of a legally correct entrustment or dominion over property. S. 409 
covers both types of cases. that is. those where the receipt of property is itself 
fraudulent or those where the public servant misappropriates it. All that is re-
quired is "cntrustment". [353 Bl 
B 
(II) In the present case, there is evidence and findings of the Special Court 
to show that the respondent was actually representing to the policy-holders that 
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SUPDT. LEGAL AFFAIJl.S V. S. IC. ROY (Beg, /.) 
349 
they could ~ 
their ;-~::nu in Cal'1utta to him and he iliued receipts pur4 
porting to act in bis o 
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capacity. 11lere is, therefore, nexus between the 
actll!ll official copacity and tho conduct of tho Respondent to hold the Respondent 
suiltf of the ol!ence u/s 409 !.P.C. which could be tri~ by the special court. 
l3SS A-BJ 
(State of U.P. and Ors, V. lJabu Ram Upadliya [1961) 2 SCR 679 and.S. N. 
Pnri V. State »I Rajasthan [19721 3 S.C.R. 497 referred to.) 
CRIMINAL AP!'ELLATE JURISDICTION : Criminal appeal No. 189 of 
In~ 
I , 
From the Judgment and Order dated the 19th February

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