Entrustment and Dishonest Intention Unproved: Supreme Court Restores Telephone Cashier's Acquittal in Section 409 IPC Case

The appellant, a Cashier-cum-Counter Clerk in the Telephone Department at Aurangabad, was alleged to have collected Rs 8,73,737 in telephone charges between 01.07.1993 and 09.10.1993, crediting Rs 3,88,035 late and not crediting Rs 4,75,702; he was charged under Section 409 IPC (para 2). On 20.02.2002 the Chief Judicial Magistrate, Aurangabad acquitted him, finding the evidence vague and the seizure of 46 articles from his house unproved for breach of Section 100(7) CrPC (paras 8, 26). On 12.10.2017 the Bombay High Court at Aurangabad reversed the acquittal and sentenced him to one year's rigorous imprisonment and a Rs 5,000 fine (paras 1, 21).

An appellate court reversing an acquittal must give weight to the trial court's view of the witnesses, the presumption of innocence and the benefit of doubt (para 11). Criminal breach of trust needs entrustment and dishonest intention (para 12). The complainant never produced the original cashbook, daily register, audit report or the registers the appellant sought, despite the investigating officer's requests; the trial court rightly drew an adverse inference, and the High Court wrongly faulted the appellant for not producing them (paras 13-14). With both panch witnesses hostile and Sections 100(4) and 100(7) CrPC not followed, the seizure could not rest on the investigating officer's word alone; such non-compliance does not by itself vitiate a seizure, but weighs cumulatively against the prosecution in an appeal against acquittal (paras 18-19). The unsigned printed list at Exhibit-9 did not connect the appellant to the figures (para 20). The High Court also sentenced him without hearing him on sentence, contrary to Mukesh Kumar Yadav (paras 21-23), and wrongly shifted the burden to him; following Rabindra Kumar Dey, the onus never shifts from the prosecution (para 24).