Case – Jaikrishnadas Manohardas Desai v. State of Bombay, 1960
Case Summary
Citation : Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889 | |
Keywords : Section 409 read with Section 34 of the Indian Penal Code , Criminal Breach of Trust | |
Facts : On June 15, 1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth. Jaikrishnadas Manohardas Desai was the Managing Director and the second appellant, a Director and technical expert of a cloth dyeing concern known as Parikh Dyeing and Printing Mills Ltd. They submitted their tender, and their tender was accepted. The company entered into a contract with the Textile Commissioner undertaking to dye a large quantity of cloth which was supplied to the company for that purpose. In pursuance of the contract certain quantity of cloth was dyed and delivered to the Textile Commissioner by the company but it failed to dye and deliver the balance of cloth which remained in its possession and was not returned to the Textile Commissioner despite repeated demands. On November 20, 1950, the contract was cancelled by the Textile Commissioner in respect of the balance of cloth and the company was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for material spoiled or not accounted for. The company admitted its liability. On December 29, 1952, the premises of the company and the place of residence of the appellants were raided, but no trace of the cloth was found. A complaint was then filed with the police charging the two appellants with criminal breach of trust in respect of 1,32,4041 yards of cloth belonging to the Government. | |
Issues :a)Whether appellants had dominion over yards of cloth? b)Whether breach of trust must be proved by direct evidence and by precise mode? | |
Contentions : To establish a charge of criminal breach of trust, the prosecution was not bound to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he had dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. The mere failure of the accused to account for the property entrusted to him might not be the foundation of his conviction in all cases. But where he was unable to account and rendered an explanation for his failure which was untrue, an inference of misappropriation with dishonest intent might readily be made. No information was given at any time to the Textile Commissioner after December 4, 1950, that the cloth had been eaten up by white-ants and moths, and was therefore thrown away or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants. Supreme Court dismissed the appeal and held that conviction of both persons under section 409 r/w section 34 by High Court was justified. It was accepted that First appellant had dominion over property. | |
Law Points : | |
Judgement : | |
Ratio Decidendi & Case Authority |
Full Case Details
J.C. SHAH, J. – At a trial held with the aid of a common jury in Case No. 38 of the V Session
1955 before the Additional Sessions Judge, City Court, Greater Bombay, the two appellants
were convicted of offences under Section 409 read with Section 34 of the Indian Penal Code.
The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment
for five years and the second appellant to suffer rigorous imprisonment for four years. In
appeal, the High Court of Bombay reviewed the evidence, because in the view of the Court,
the verdict of the jury was vitiated on account of a misdirection on a matter of substantial
importance, but held that the conviction of the two appellants for the offence under Section
409 read with Section 34 of the Indian Penal Code was, on the evidence, not liable to be set
aside. The High Court accordingly confirmed the conviction of the two appellants but
reduced the sentence passed upon the first appellant to rigorous imprisonment for three
years and the sentence against the second appellant to rigorous imprisonment for one year.
Against the order of conviction and sentence, the appellants have appealed to this court
with special leave.
- The facts which gave rise to the charge against the two appellants are briefly these:
On 15-6-1948, the Textile Commissioner invited tenders for dyeing Pugree Cloth. The
Parikh Dyeing and Printing Mills Ltd., Bombay – hereinafter to be referred to as “the
company” – of which the first appellant was the Managing Director and the second appellant
was a Director and technical expert, submitted a tender which was accepted on 27-7-1948,
subject to certain general and special conditions. Pursuant to the contract, 2,51,05 ¾ yards
of cloth were supplied to the company for dyeing. The company failed to dye the cloth
within the stipulated period and there was correspondence in that behalf between the
company and the Textile Commissioner. Approximately 1,11,000 yards out of the cloth were
dyed and delivered to the Textile Commissioner. On 25-3-1950, the company requested the
Textile Commissioner to cancel the contract and by his letter dated 3-4-1950, the Textile
Commissioner complied with the request, and cancelled the contract in respect of 96,128
yards. On 20-11-1950, the contract was cancelled by the Textile Commissioner in respect of
the balance of cloth and the company was called upon to give an account without any
further delay of the balance undelivered and it was informed that it would be held
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responsible for “material spoiled or not accounted for”. On December 4, 1950, the company
sent a statement of account setting out the quantity of cloth actually delivered for dyeing,
the quantity of cloth returned duly dyed and the balance of cloth viz. 1,32,160 yards
remaining to be delivered. Against the cloth admitted by the company remaining to be
delivered, it claimed a wastage allowance of 2412 yards and admitted liability to deliver
1,29,748 yards lying with it on Government account. - It appears that about this time, the company was in financial difficulties. In December
1950, the first appellant left Bombay to take up the management of a factory in Ahmedabad
and the affairs of the company were managed by one R.K. Patel. In June 1952, an application
for adjudicating the two appellants insolvents was filed in the Insolvency Court at
Ahmedabad. An insolvency notice was also taken out against the two appellants at the
instance of another creditor in the High Court at Bombay. Proceedings for winding up the
company were commenced in the High Court at Bombay. In the meantime, the mortgagee
of the machinery and factory of the company had entered into possession under a covenant
reserved in that behalf, of the premises of the factory of the company. - The Textile Commissioner made attempts to recover the cloth remaining undelivered
by the company. A letter was posted by the Textile Commissioner on 16-4-1952, calling upon
the company to deliver 51,756 yards of cloth lying with it in bleached condition to the Chief
Ordnance Officer, Ordnance Depot, Sewri, but the letter was returned undelivered. It was
ultimately served with the help of the police on the second appellant in October 1952.
Thereafter on 7-11-1952, another letter was addressed to the company and the same was
served on the second appellant on 25-11-1952. By this letter, the company was reminded
that 1,35,726¾ yards of cloth were lying with it on account of the Government and the same
had to be accounted for, and that the instructions to deliver 51,756 yards to the Chief
Ordnance Officer, Ordnance Depot, Sewri, had not been attended to. The Textile
Commissioner called upon the company to send its representatives to “clarify the position”
and to account for the material. After receiving this letter, the second appellant attended at
the office of the Textile Commissioner and on 27-11-1952, wrote a letter stating that “the
main factors involved in not delivering the goods in finished state was that the material was
very old”, was “dhobi-bleached in different lots”, was “bleached under different conditions
and therefore unsuitable for vat colour dyeing in heavy shades”, that it varied in length,
weight, and finish and had “lost affinity for vat colour dyeing”. It was also stated that the
company had in dyeing the basic material, suffered “huge losses” estimated at Rs 40,000. It
was then stated: “We are, therefore, however prepared to cooperate with the Government
and are willing to make good the government’s bare cost. Please let us know the detail and
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the actual amount to be deposited so that we may do so at an early date. We shall thank you
if we are given an appointment to discuss the matter as regards the final amount with
respect to the balance quantity of the basic material.” - On December 29,1952, the premises of the company and the place of residence of the
appellants were raided, but no trace of the cloth was found. A complaint was then filed with
the police charging the two appellants with criminal breach of trust in respect of 1,32,404½
yards of cloth belonging to the Government. - There is no dispute that approximately 1,30,000 yards out of the cloth entrusted to
the company by the Textile Commissioner for dyeing has not been returned. By its letter
dated December 4, 1950, the company admitted liability to deliver 1,29,748 yards of cloth,
but this cloth has not been returned to the Textile Commissioner in spite of repeated
demands. That the appellants, as Directors of the company had dominion over that cloth
was not questioned in the trial court. The plea that there were other Directorsof the
company besides the appellants who had dominion over the cloth has been negatived by the
High Court and in our judgment rightly. Direct evidence to establish misappropriation of the
cloth over which the appellants had dominion is undoubtedly lacking, but to establish a
charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode
of conversion, misappropriation or misapplication by the accused of the property entrusted
to him or over which he has dominion. The principal ingredient of the offence being
dishonest misappropriation or conversion which may not ordinarily be a matter of direct
proof, entrustment of property and failure in breach of an obligation to account for the
property entrusted, if proved, may in the light of other circumstances, justifiably lead to an
inference of dishonest misappropriation or conversion. Conviction of a person for the
offence of criminal breach of trust may not, in all cases, be founded merely on his failure to
account for the property entrusted to him, or over which he has dominion, even when a
duty to account is imposed upon him, but where he is unable to account or renders an
explanation for his failure to account which is untrue, an inference of misappropriation with
dishonest intent may readily be made. - In this case, on a search of the factory on December 29, 1952, the cloth remaining to
be delivered by the company was not found. At the trial, the appellants sought to explain
the disappearance of the cloth from the factory premises where it was stored, on the plea
that it was old and was eaten up by white-ants and moths, and had been thrown away as
rubbish. This plea of the appellants was not accepted by the High Court and we think rightly.
No information was given at any time to the Textile Commissioner after December 4, 1950,
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that the cloth had been eaten up by white-ants and moths, and was therefore thrown away
or otherwise destroyed. Nor was any evidence led in support of the plea by the appellants. - In this court, counsel for the first appellant contended that failure to return the cloth
may give rise to a civil liability to make good the loss occasioned thereby, but in the
circumstances of the case, the first appellant cannot be found guilty of the offence of
criminal breach of trust. Counsel submitted that the first appellant had left Bombay in 1950
and had settled down in Ahmedabad and was attending to a State of Bombayfactory in that
town, that thereafter the first appellant was involved in insolvency proceedings and was
unable to attend to the affairs of the company in Bombay, and if, on account of the preoccupation of the first appellant at Ahmedabad, he was unable to visit Bombay and the
goods were lost, no criminal misappropriation can be attributed to him. But the case
pleaded by the appellant negatives this submission. The first appellant in his statement
before the trial court admitted that he often went to Bombay even after he had migrated to
Ahmedabad and that he visited the mill premises and got the same opened by the Gurkha
watchman and he found that the heap of cloth lying in the mill was getting smaller every
time he visited the mill and on inquiry, he was told by the watchman that every day one
basketful of sweepings was thrown away. He also stated that he was shown several places in
the compound of the factory where pits had been filled up with these sweepings, and that
he found a small heap lying by the side of the “Tulsipipe gutter” and also in the warehouses
in the mill premises. It is clear from this statement and other evidence on the record that
even after he migrated to Ahmedabad, the first appellant was frequently visiting the factory
at Bombay. The evidence also discloses that meetings of Directors were held from time to
time, but the minutes of the Directors’ meetings have not been produced. The books of
account of the company evidencing disbursements to the Directors of remuneration for
attending the meetings and the expenses for the alleged collection and throwing away of
the sweepings have not been produced. It is admitted by the first appellant that the letter
dated 27-11-1952, was written by the second appellant under his instructions. In his
statement at the trial, the first appellant stated that he was informed of the letter dated 26-
11-1952, from the Textile Commissioner and that he could not attend the office of that
officer because he is attending to the insolvency proceedings and that he deputed the
second appellant to attend the office and to explain and discuss the position. He then stated,
“We had informed the Commissioner that the company was prepared to pay for the cloth
remaining after deducting the amount claimed as damages”. The letter dated 27-11-1952,
was evidently written under the direction of the first appellant and by that letter, liability to
pay for the cloth after certain adjustments for losses alleged to be suffered by the company
in carrying out the contract was admitted. By the letter dated December 4, 1950, liability to
deliver the cloth was admitted and by the letter dated 27-11-1952, liability to pay
compensation for the loss occasioned to the Government was affirmed. The appellants who
were liable to account for the cloth over which they had dominion have failed to do so, and
they have rendered a false explanation for their failure to account. The High Court was of
the opinion that this false defence viewed in the light of failure to produce the books of
account, the stock register and the complete absence of reference in the correspondence
with the Textile Commissioner about the cause of disappearance established
misappropriation with criminal intent. - Counsel for the first appellant contended that probably the goods passed into the
possession of the mortgagees of the assets of the company, but on this part of the
submission, no evidence was led in the trial court. Counsel for the first appellant, relying
upon the observations in Shreekantiah Ramayya Munipalli v. State of Bombay[(1955) 1 SCR
1177] also contended that in any event, a charge under Section 409 read with Section 34 of
the Indian Penal Code cannot be established against the first appellant unless it is shown
that at the time of misappropriation of the goods, the first appellant was physically present.
But the essence of liability under Section 34 is to be found in the existence of a common
intention animating the offenders leading to the doing of a criminal act in furtherance of the
common intention and presence of the offender sought to be rendered liable under Section
34 is not, on the words of the statute, one of the conditions of its applicability. As explained
by Lord Sumner in BarendraKumar Ghose v. King-Emperor [AIR 1925 PC 1, 7] the leading
feature of Section 34 of the Indian Penal Code is “participation” in action. To establish joint
responsibility for an offence, it must of course be established that a criminal act was done by
several persons; the participation must be in doing the act, not merely in its planning. A
common intention – a meeting of minds – to commit an offence and participation in the
commission of the offence in furtherance of that common intention invite the application of
Section 34. But this participation need not in all cases be by physical presence. In offences
involving physical violence, normally presence at the scene of offence of the offenders
sought to be rendered liable on the principle of joint liability may be necessary, but such is
not the case in respect of other offences where the offence consists of diverse acts which
may be done at different times and places. In Shreekantiahcase, misappropriation was
committed by removing goods from a Government depot and on the occasion of the
removal of the goods, the first accused was not present. It was therefore doubtful whether
he had participated in the commission of the offence, and this Court in those circumstances
held that participation by the first accused was not established. The observations in
Shreekantiahcase in so far as they deal with Section 34 of the Indian Penal Code must, in our - judgment, be read in the light of the facts established and are not intended to lay down a
- principle of universal application.
- The High Court has found that the two appellants were liable to account for the cloth
over which they had dominion and they failed to account for the same and therefore each
had committed the offence of criminal breach of trust. The High Court observed: “In such a
case, if Accused 1 and 2 (Appellants 1 and 2) alone were concerned with the receipt of the
goods, if they were dealing with the goods all the time, if they were receiving
communications from the Textile Commissioner’s office and sending replies to them, and if
the part played by each of them is apparent from the manner in which they are shown to
have dealt with this contract, then it is a case of two persons entrusted with the goods and a
breach of trust obviously being committed by both of them”. - It was submitted that the High Court erred in finding the appellants guilty of offences
under Section 409 of the Indian Penal Code when the charge framed against them was one
under Section 409 read with Section 34 of the Indian Penal Code. A charge framed against
the accused person, referring to Section 34 is but a convenient form of giving notice to him
that the principle of joint liability is sought to be invoked. Section 34 does not create an
offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance
of the common intention of the offenders. Conviction of an accused person recorded, relying
upon the principle of joint liability, is therefore for the offence committed in furtherance of
the common intention and if the reasons for conviction establish that the accused was
convicted for an offence committed in furtherance of the common intention of himself and
others, a reference in the order recording conviction to Section 34 of the Indian Penal Code
may appear to be a surplusage. The order of the High Court recording the conviction of the
appellants for the offence under Section 409 of the Indian Penal Code is therefore not illegal. - It was submitted for the first appellant that the sentence passed against him was
unduly severe, and that in any event, no distinction should have been made between him
and the second appellant in the matter of sentence. It is evident on the findings accepted by
us that property of considerable value has been misappropriated by the first appellant. He
was the Managing Director of the company and primarily, he had dominion over the
property entrusted to the company. The second appellant was, though a Director, essentially
a technician. Having regard to these circumstances, if the High Court has made a distinction
between the two appellants, we ought not to interfere with the sentence, which by itself
cannot be said to be excessive. The appeal fails and is dismissed.