The Supreme Court of India has set aside a judgment of the Bombay High Court that reversed the acquittal of a former Telephone Department cashier accused of criminal breach of trust under Section 409 of the Indian Penal Code, 1860. A Bench comprising Justice Ujjal Bhuyan and Justice Atul S. Chandurkar held that the prosecution had failed to establish the foundational ingredients of entrustment and dishonest intention, reiterating that an appellate court cannot overturn an acquittal merely because an alternative view is possible, nor can it impose a sentence upon reversing an acquittal without first hearing the convict on the question of sentence.
Case Background
The appellant, Ramkrushna Prahllad Dongardive, worked as a Cashier-cum-Counter Clerk at the Telephone Department in Aurangabad. The prosecution alleged that between July 1, 1993, and October 9, 1993, the appellant collected telephone charges amounting to Rs. 8,73,737 from subscribers. It was alleged that Rs. 3,88,035 was credited to the government account belatedly, constituting temporary criminal breach of trust, while Rs. 4,75,702 was not deposited at all despite being entrusted to him.
Following a complaint lodged by the Assistant Accounts Officer on October 11, 1993, a case was registered under Sections 409, 477, and 420 of the Indian Penal Code, and a charge under Section 409 was eventually framed. The appellant pleaded not guilty and claimed trial. During his examination under Section 313 of the Code of Criminal Procedure, 1872, the appellant maintained that a false case was lodged against him and stated that the collected amounts were handed over to the Accounts Officer.
The Chief Judicial Magistrate, Aurangabad, acquitted the appellant on February 20, 2002, holding that the prosecution’s evidence was vague and general, material registers were not produced, and the statutory search-and-seizure procedures under Section 100(7) of the Code of Criminal Procedure were violated. On appeal by the State, the Aurangabad Bench of the Bombay High Court reversed the acquittal on October 12, 2017, convicting the appellant under Section 409 of the Penal Code and sentencing him to one year of rigorous imprisonment with a fine of Rs. 5,000. The appellant then approached the Supreme Court.
Arguments of the Parties
Appearing for the appellant, Senior Advocates B.H. Marlapalle and Sudhanshu S. Choudhari submitted that the High Court overlooked settled legal principles governing interference with an order of acquittal. Relying on Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin, they argued that an acquittal cannot be reversed simply because a second view is plausible. They cited R. Venkatakrishnan v. Central Bureau of Investigation to contend that the core requirements of Section 409—entrustment of property and dishonest intention—were not established. Counsel also emphasized that the prosecution failed to produce the daily cash handover register and stock registers despite court orders, warranting an adverse inference, and pointed out that the High Court improperly shifted the burden of proof onto the appellant.
Opposing the appeal, counsel for the State of Maharashtra, Shrirang B. Varma, argued that the High Court’s reversal was fully justified. He submitted that the entrustment of Rs. 8,73,737 was established, and the evidence—including Exhibits 7 to 9 and the handwriting expert’s opinion—proved both the delayed credit and the non-credit of government funds. He argued that the appellant’s conduct manifested dishonest intention and that the charges had been proved beyond reasonable doubt.
The Court’s Analysis
Delivering the judgment, Justice Chandurkar emphasized the well-settled boundaries of appellate review against an order of acquittal. Citing Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin, the Bench noted:
“It cannot be disputed that the High Court, even though it was hearing an appeal from an order of acquittal, had full powers to review the entire evidence on the record and reach its own conclusion that the acquittal order should be set aside. But as the Privy Council pointed out in –‘Sheoswarup v. Emperor’, in exercising these powers the High Court should and will always give proper weight and consideration to such matters as: (1) the views of the trial court as to the credibility of witnesses; (2) presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”
Failure to Prove Entrustment
Turning to the ingredients of criminal breach of trust under Sections 405 and 409 of the Penal Code, the Bench stressed that dishonest intention is an indispensable component. Relying on R. Venkatakrishnan v. Central Bureau of Investigation, the Court noted that breach of trust simpliciter does not constitute an offence unless accompanied by dishonest intention.
On the question of whether the cash was entrusted to the appellant, the Court examined the deposition of the Investigating Officer (PW12), who admitted that the complainant did not produce the original cashbook, daily register, rough cashbook, balance sheet, or audit report during the investigation. The Court observed:
“The aforesaid admissions clearly indicate that despite being called upon by the IO to produce the original cashbook, audit report and other relevant documents including collection of amounts from subscribers, the same were not produced by the complainant, PW1 and other officers of the Telephone Department. These documents formed the basis of entrustment of property to the appellant. However, in the absence of these material documents, it would be difficult to hold that there was, in fact, entrustment of the amount of cash to the appellant, which is one of the basic ingredients for constituting breach of trust.”
The Court held that the trial court was fully justified in drawing an adverse inference against the prosecution under Section 114(g) of the Indian Evidence Act for withholding these records, and criticized the High Court for ignoring this failure and assuming that the appellant had to produce the records.
Doubts Over Documentary Seizure
The Supreme Court scrutinized the prosecution’s reliance on forty-six documentary articles purportedly seized from the appellant’s residence under Exhibit-86. The Court noted that both independent panch witnesses (PW6 and PW7) turned hostile and stated their signatures were obtained at the police station. Furthermore, the Investigating Officer failed to obtain the appellant’s signature on the panchnama, did not date his own signature, and did not provide a list of seized articles to the appellant as required by Section 100(7) of the Code of Criminal Procedure.
Referring to Sunder Singh v. State of Uttar Pradesh and State of Punjab v. Balbir Singh, the Court acknowledged that procedural irregularities under Section 100 do not per se vitiate a search, but ruled that when viewed cumulatively with other evidentiary deficiencies, they cast serious doubt on the prosecution’s case:
“In this scenario, the seizure could not be held to be duly proved solely on the basis of deposition of the IO without any further corroboration. There is no explanation given by the IO as to why a list of the articles seized from the appellant’s house was not furnished to him. We, therefore, find that the High Court erred in relying upon the seizure of the said articles and further observing that the same was an incriminating circumstance against the appellant, for which he had not furnished any explanation.”
The Court added that Exhibit-9—a ten-page printed list showing amounts paid and unpaid—bore neither the appellant’s signature nor any handwriting to link him to the figures.
Reversal of Acquittal and Failure to Hear on Sentence
The Bench highlighted an additional procedural flaw in the High Court’s ruling: convicting and sentencing the appellant simultaneously without giving him an opportunity of being heard on sentence. Referring to Mukesh Kumar Yadav v. The State (UT of Andaman & Nicobar Islands), Kumar Exports v. Sharma Carpets, and Suryamoorthi v. Govindaswamy, the Court reiterated:
“What is clear from the above discussion is that, a court which convicts the accused for the first time has to hear the accused on sentence. If it is a trial court then Section 235(2), Cr.P.C., will apply. If it is the appellate court which is convicting the accused for the first time after reversing the acquittal, the appellate court has to hear the convict on sentence. The appellate court cannot relegate the matter to the court below only for the purpose of imposing a sentence after the appellate court had recorded a conviction. That will be contrary to Section 386(a), Cr.P.C., and the judgments of this Court.”
Impermissible Shifting of the Burden of Proof
The Supreme Court observed that the High Court placed undue weight on the appellant’s alleged inability to explain the documents seized. Citing Rabindra Kumar Dey v. State of Orissa, the Court restated the three cardinal principles of criminal law: the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt, the accused is presumed innocent until proven guilty, and the prosecution’s burden never shifts. The Court observed:
“These observations are sufficient for us to conclude that the High Court erred in shifting the burden on the appellant.”
The Decision
Holding that the trial court’s verdict was well-founded, the Supreme Court concluded:
“Thus, having considered the entire material on record, we are of the considered view that the trial Court had rightly acquitted the appellant. The prosecution had failed to prove entrustment of property to the appellant. The material on record is insufficient to conclude that the appellant was guilty of misappropriation of that property. There is also no evidence whatsoever to indicate any dishonest intention on the part of the appellant that would have resulted in commission of an offence punishable under Section 409 of the Penal Code.”
The Supreme Court set aside the High Court’s judgment dated October 12, 2017, restored the trial court’s acquittal order dated February 20, 2002, acquitted the appellant of the charge under Section 409 of the Penal Code, and directed the cancellation of his bail bonds.
Case Details
Case Title: Ramkrushna Prahllad Dongardive v. The State of Maharashtra
Case No.: Criminal Appeal No. 1432 of 2019
Bench: Justice Ujjal Bhuyan and Justice Atul S. Chandurkar
Date: October 8, 2026
