TMI Blog1974 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity of a public servant or in the way of his business as such agent . Provided that when trying any case, a. Special Court may also try any offence other than an offence specified in the schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial . The Special Court framed the following charge against the respondent : That you, between 12th May, 1958 and 7th May, 1959 Hindustan Building Calcutta, being a Pub. Servant, to wit, Supdt. of Pakistan Section (Pak Unit) of Hindustan Co-operative Life Insurance Society, Unit of LIC of India, Calcutta, and in that capacity entrusted with or with domination over the premiums of some Pakistan Policy Holders, amounting to about ₹ 2350-49 np., collected by you directed from these policyholders or their representatives viz. 6, 7, 8, and 15 and other, under receipts 6 (Ext. 3 series other than Ex. 3/5) issued by you on behalf of the said LIC in respect of the Policies of those policy-holders, committed Criminal breach of trust in respect of such premiums by making false adjustments of receipt of such amounts through the Bank in Pakistan in relevant books (Exts. 5, 8, and 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the respondent to put forward his authority to receive the sums of money, and, therefore to realize the amounts paid by the deceived policy holders who appeared as witnesses and were rightly believed by the Special Court despite the denial of the respondent that he did not personally receive the amounts but had,- mechanically and in good faith, signed the receipts put up before him by Clerks. The respondent s suggestions that it may have been the Clerks who had received monies and thus deceived him as well as the policy holders, was rightly rejected by the Special Court. Nevertheless, the Special Court came to the conclusion that, as no money was entrusted to the respondent in his capacity as a public servant, the respondent was entitled to an acquittal for an alleged affect punishable under Section 409 Indian Penal Code. It also held that, as no alternative charge could be framed under section 406 I.P.C. under the proviso to Section 4(1) of the Act, there could be no conviction for that offence. It held that an alternative charge could not be framed by it in addition to the charge under Section 409 I.P.C. on the same facts and also that a Special Court could not, after taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant while he received the money from the policy holders in cash in Calcutta. It also observed It is quite possible that the respondent had deceived the policy holders when he received cash money from them including them to believe that those were valid payments towards premium and the payees had been put to damage, loss and harm which make him liable to be proceeded against for cheating. But when it is found that the respondent had acted clearly beyond and outside his duties as a Public servant having well defined duties which do not include cash receipt of premium, the offence which he committed is not criminal breach of trust punishable under section 409 I. P. C. within the meaning of item No. 2 in the schedule of Act XXI of 1949, the Court had no jurisdiction to proceed with the trial as the offence does not fall within the schedule : the proper course for the learned Judge was to discharge the respondent . Although it did not quash the order of acquittal, the apparent result of its findings was that the Trial of the respondent, being without jurisdiction, was null and void so that the respondent could be retired. We are unable to concur with the view of the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duties as a public servant to get dominion of control over some property will be an aggravating and not an exculpating circumstances. The entrustment results from what the person handing over money or property is made to think, understand, and believe about the purpose for which he hands over money or property to a public servant. If this takes place because of an due to the exercise of the official authority the requirements of Section 409 1. P. C. are satisfied. There may be cases in which a person who parts with property to a public servant, may have done so for reasons or in a manner so completely disconnected with the official capacity of the public servant that it may not be reasonably possible to conceive of it as an offence connected with or committed in the course of performance of any official duty at all so that official capacity becomes really irrelevant. Ordinarily, it is the ostensible or apparent scope of public servant s authority when receiving property and not its technical limitations, under some internal rules of the department or office concerned, and the use made by the servant of his actual official capacity which would, in our opinion, determine whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A case cited before us, to support the contention that acquisition of dominion or possession and control over property by an accused would even if wrongful, be an entrustment or create an obligation the violation of which, by misappropriation, would be punishable under Section 409 I.P.C. if the accused used his official capacity to obtain the property, was : State of U.P. Ors. Vs. Babu Ram Upadhya. Again, in S. N. Puri Vs. State of Rajasthan, this Court, after referring to decisions of different High Courts on the subject, held, that the expression entrusted is used in Section 409 I.P.C. in a wide sense and include all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. The obligation to act in a certain manner with regard to or to deal honestly with property, over which a public servant obtains dominion or control by the use of his official capacity, may arise either expressly or impliedly. Even if the respondent or the life Insurance Corporation, on whose behalf the respondent had purported to act, had not, at the time of receipt of money from a po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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