While laying down what the prosecution is required to prove, the Himachal Pradesh High Court in a learned, laudable, landmark and latest judgment titled Shyam Lal v. State of HP in Cr. Revision No. 107 of 2012 and 2022 LiveLaw (HP) 4 delivered as recently as on March 3, 2022, the Himachal Pradesh High Court has stated in no uncertain terms that:
With a view to constitute an offence under S. 409 IPC, prosecution is required to prove that the accused was entrusted with property in the capacity of a public servant and he committed criminal breach of trust qua that property. It must be mentioned that this remark was made by Justice Sandeep Sharma while adjudicating upon an appeal filed by one Shyam Lal who was serving as a Process Server in the court of Naib Tehsildar at the relevant time, when he misappropriated the fine entrusted to him by the parties in the capacity of an officer of the Court. The judgment of conviction was upheld.

To start with, this brief, brilliant and balanced judgment authored by a single Judge Bench comprising of Justice Sandeep Sharma of Himachal Pradesh High Court sets the ball rolling by first and foremost putting forth in para 1 that:
Being aggrieved and dissatisfied with judgment dated 4.10.2010 passed by learned Sessions Judge, Bilaspur, District Bilaspur,, Himachal Pradesh in Cr. Appeal No. 3 of 2008, affirming the judgment of conviction and order of sentence dated 26.12.2007 passed by learned Judicial Magistrate First Class, Bilaspur, Himachal Pradesh in case No. 131/2 of 1998/97 titled State vs. Shyam Lal, whereby learned trial Court, while holding the petitioner-accused(hereinafter, ‘accused’) guilty of having committed offence punishable under S. 409 IPC, convicted and sentenced him to undergo simple imprisonment for two weeks and pay fine of Rs.500/- and, in default of payment of fine, to further undergo simple imprisonment for two weeks.

To put things in perspective, the Bench then envisages in para 2 that:
In nut shell, the case of the prosecution is that, on 19.7.1995, accused, who was serving as a Process Server in the court of Naib Tehsildar, was handed over summons Exhibit PW-3-/A to be served upon one Sita Ram son of Shri Pohlo Ram for recovery of Rs. 250/-. Though the accused, after having served above named person, collected fine of Rs. 250/- in the presence of person namely Gurnam Singh PW-7, and executed a receipt Exhibit PW-1/B in the presence of Ranjeet Singh, PW13, however, he failed to deposit the amount in the Government treasury. Subsequently on 24.7.1995, another summon was given to the accused for serving upon PW-8 Sukh Dei, vide entry made in Register, Ext. PW4/A, for recovery of Rs. 500/-. Accused served PW-8 Sukh Dei with the summons and after having collected fine of Rs. 500/-, executed a receipt Exhibit PW-1/D, in the presence of persons namely, Jai Singh PW-9, Nand Lal PW-10 and Hari Singh PW-11, however, such amount was never deposited in the Government treasury.

Needless to say, the Bench then states in para 3 that:
Since the accused, despite repeated reminders, failed to deposit the amount in Government treasury, an explanation was called from him by PW-2 Roshan Lal, the then Naib Tehsildar Swarghat, but yet accused failed to deposit the fine amount and as such, information was given to the Deputy Commissioner Bilaspur vide Ext. P-3, by Roshan Lal (PW-2). In the aforesaid background matter was reported to the police by PW-2 Roshan Lal, vide Ext. PW-2/A, on the basis of which, FIR Ext. 14/A came to be recorded at Police Station Sadar, Bilaspur.

While elaborating, the Bench then lays bare in para 4 that:
PW-14 ASI Tara Singh, conducted investigation. The leave application, Ext. PW14/A and specimen handwriting of the accused were taken into possession vide memo Ext. PW-14/C. Specimen Handwriting and signatures of the accused were obtained by Shri Arun Bhardwaj, PW15, the then Executive Magistrate Ghumarwin, which are Exts. PW-14/D-1 to PW-14/D-6 and disputed receipts alongwith aforesaid specimen writing and admitted signatures were sent to the handwriting expert, for comparison, who vide report Exhibit PW-14/E opined that the receipts in issue were issued by the accused and bears his signatures. Exhibit PW6A and PW-6/B regarding non-deposit of fine, were obtained from PW-6 Gulab Singh. Abstract of duty register Exts. PW-4/A and PW-4/B were also seized form PW-4 Desh Raj.

As we see, the Bench then states in para 5 that:
After completion of investigation, police presented Challan in the competent court of law, which being satisfied that a prima facie case exists against the accused, charged him for commission of offence punishable under Ss. 420 and 409 IPC, to which he pleaded not guilty and claimed trial.

Truth be told, the Bench then brings out in para 6 that:
Prosecution, with a view to prove its case, examined as many as 15 witnesses, whereas, accused though in his statement recorded under S. 313 CrPC, denied the case of prosecution in toto but failed to lead any evidence in his defence despite adequate opportunity given to him.

Furthermore, the Bench then lays bare in para 7 that:
Learned trial Court, on the basis of evidence, led on record by prosecution, though acquitted the accused of charge framed under S. 420 IPC but found him guilty for his having committed offence under S. 409 IPC and accordingly convicted and sentenced him, as per description given herein above.

As it turned out, the Bench then discloses in para 8 that:
Being aggrieved and dissatisfied with the judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal before learned Sessions Judge Bilaspur but the same was also dismissed vide judgment dated 4.10.2010. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgment of conviction and order of sentence passed by learned court below.

Of course, the Bench then holds in para 12 that:
Having heard learned counsel for the parties and perused the evidence led on record by respective parties, vis-à-vis reasoning assigned by learned courts below in the impugned judgments of conviction and order of sentence, this court sees no reason to interfere in the impugned judgments of conviction and order of sentence passed by learned courts below, which otherwise appear to have been passed on the basis of proper appreciation of the evidence, be it ocular or documentary.

Most forthrightly, the Bench then holds in para 13 that:
With a view to constitute an offence under S.409 IPC, prosecution is required to prove that the accused was entrusted with property in the capacity of a public servant and he committed criminal breach of trust qua that property. Though, in the case at hand, learned senior counsel for the accused attempted to carve out a case that at no point of time, accused was entrusted with property in the capacity of a public servant and he also argued that the accused was not authorized to collect the fine, however, careful perusal of the evidence collected on record by prosecution, clearly reveals that the accused, who at the relevant time was working as a Process Server was entrusted with duty to serve summons upon PW-8 Sukh Dei and another person Sita Ram, who were imposed fine of Rs. 500/- and Rs. 250/- respectively on account of encroachment. Though the accused collected fine from both the persons, amounting to Rs. 500/- and Rs. 250/- respectively, but failed to deposit the same with the Government treasury.

Practically speaking, the Bench then clearly states in para 14 that:
If the statements of PW-1 and PW-2 are read in conjunction, they clearly prove the factum with regard to the duty given to the accused to serve summons upon PW-8 Sukh Dei (complainant). PW-1 Daya Krishan Thakur has categorically deposed that on the askance of the accused, he had deposited Rs. 250/- collected by accused from person namely Sita Ram in the Government treasury but he never returned that money to him. This witness also deposed that despite repeated reminders, accused failed to deposit Rs. 500/- recovered by him from Sukh Dei.

Quite glaringly, the Bench then reveals in para 15 that:
Leaving everything aside, accused himself in his statement recorded under S. 313 CrPC, admitted the factum with regard to his having been deputed to serve summons upon PW-8, complainant on the given date. In his statement he admitted that he was a public servant in the year 1995 and was working as a Process Server in the office of Naib Tehsildar Swarghat. PW-1 Daya Krishan and PW-2 Roshan Lal never came to be cross examined qua the question of posting and entrustment of duty to the accused to serve summons upon PW-8 and as such, it stands duly established on record that the accused, in his official capacity, had gone to residence of PW-8 Sukh Dei to serve summons on 24.7.1995.

Going ahead, the Bench then enunciates in para 16 that:
Besides above, accused in his statement recorded under S.313 CrPC, while answering question No. 11, specifically admitted that on 24.7.1995, he was given summons vide entry No. 195 made in the Register Exhibit PW-4/A to be served upon PW-8 Sukh Dei for recovery of Rs. 500/-. Similarly, allegations with regard to collection of Rs. 500/- as fine from PW-8 by the accused stands duly proved on record. PW-8 Sukh Dei complainant deposed that she is known to the accused, who is deployed in Sub Tehsil Swarghat. She stated that about four years back, accused came to her house in the presence of PW-9, Jai Singh Pradhan, PW-10 Hari Singh and another person and she handed over Rs. 500/- as fine in respect of illegal encroachment. She also deposed that the accused issued receipt, Exhibit PW-1/D, which was handed over to the police. She deposed that the aforesaid receipt was issued in the presence of witnesses.

Be it noted, the Bench then discloses in para 17 that:
Cross-examination conducted upon this witness, nowhere suggests that the defence was able to extract anything contrary to what this witness stated in her examination-in-chief. In her cross-examination, she denied the suggestion that no such amount was handed over by her to the accused as fine. This witness also denied that Ext. PW-1/D(receipt) was forged by her in connivance with the police.

Going forward, the Bench then reveals in para 18 that:
Afore version of PW-8 is duly corroborated by PW-9 Jai Singh, the then Pradhan, Gram Panchayat, who deposed that PW-8 handed over Rs. 500/- to the accused in his presence. He deposed that the accused was deployed in Tehsil Office, Swarghat four years back, when he was Pradhan of the Gram Panchayat. He deposed that the accused came to the house of SuKh Dei and told her that she has been fined Rs. 500/- on account of encroachment. He deposed that the accused asked PW-8 Sukh Dei to hand over Rs. 500/- to him in his presence and two other witnesses. He deposed that PW-8 handed over Rs. 500 to the accused, who told that proper receipt would be issued by the office but himself issued receipt Ext. PW-1/D, which was prepared by him in the presence of PW-8 and other witness.

It cannot be glossed over that the Bench then points out in para 19 that, Cross-examination conducted upon this witness also nowhere suggests that the defence was able to extract anything contrary to what this witness stated in his examination-in-chief. Though, in the case at hand, accused set up a plea that he is innocent and has been falsely implicated in the case, but while making his statement under S. 313 CrPC, he never attributed any motive to PW-8 and P-9, qua his alleged false implication. Otherwise also, there is no evidence, if any, led on record by accused, suggestive of the fact that PW-8 and PW-9 were inimical towards him and to implicate him, falsely deposed against him.

It cannot be lost on us that the Bench then also acknowledges in para 20 that, True it is that the receipt Ext. PW-1/D does not bear signatures of PW-9 Jai Singh, but such fact is of no consequence, especially when perusal of receipt itself suggests that PW-9, was very much present on the spot at the time of its execution. It has been categorically stated in the receipt Exhibit PW-1/D that the fine amount was received in the presence of Pradhan, Gram Panchayat i.e. PW-9 and persons namely Hari Singh and Nand Lal, PW-10 and PW-11. PW-9 has admitted in his cross-examination that the receipt Exhibit PW-1/D does not bear his signatures but the presence of PW-9 at the time of execution of receipt Exhibit PW1/D stands duly proved with bare reading of receipt, which confirms receipt of Rs. 500/- as fine by the accused from PW-8, complainant, Sukh Dei.

Notably, the Bench then states in para 21 that:
Though learned senior counsel for the accused argued that the independent witnesses namely PW-10 Nand Lal and PW-11 Hari Singh, have not supported the prosecution case, but cross-examination conducted upon these witnesses, if read in entirety, clearly proves their presence on the spot at the time of execution of receipt Exhibit PW-1/D. Though these witnesses were declared hostile, on account of their failure to support the case of the prosecution, but both the witnesses admitted their signatures upon the receipt. No plausible explanation came to be rendered on record by these witnesses qua their signatures upon receipt, Ext PW-1/D. PW-10 admitted that he has studied upto 10th class and can read and write Hindi. Since Exhibit PW-1/D is in Hindi, it is not understood that how, without reading the contents of the receipt, this witness put his signatures upon the same.

Quite rightly, the Bench then maintains in para 27 that:
Having scanned the entire evidence available on record, this court finds no illegality or infirmity in the conclusion drawn by learned Courts below that the prosecution has successfully proved its case against the accused beyond reasonable doubt that the accused misappropriated the amount received by him as fine from PW-8, Sukh Dei and as such, committed criminal breach of trust qua said amount.

As a corollary, the Bench then rules in para 28 that:
Consequently, in view of the detailed discussion made herein above, I find no merit in the present petition, which is accordingly dismissed. Impugned judgments of conviction and order of sentence passed by learned Courts below are upheld.

In addition, the Bench then holds in para 33 that:
In view of the aforesaid law as well as submissions having been made by learned counsel appearing on behalf of the accused and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958.

Finally, the Bench then concludes by holding in para 34 that:
Accordingly, Registry is directed to call for the report of the Probation Officer concerned on or before next date of hearing. Registry to list this matter on 5.4.2022.

In a nutshell, the single Judge Bench of Himachal Pradesh High Court comprising of Justice Sandeep Sharma clearly lays down that the prosecution must prove that accused committed criminal breach of trust qua property entrusted in capacity of public servant. Of course, it merits no reiteration that the prosecution must always bear this in mind. There can be just no denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.