# KRISHAN KUMAR v. THE UNION OF INDIA

- **Citation:** [1960] 1 S.C.R. 452
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 114 of 1957
- **Bench:** Jafer Imam, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishan-kumar-v-the-union-of-india-1776
- **Pages:** 10

## Headnote

Criminal Trial-Misappropriation-Servant receiving goods
but failing to account to master-Proof of conversion, if necessaryF alse explanaJ.ion by servant, whether can be taken into consi.Iera·
tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c).
The appellant was employed as an Assistant Store Keeper
in the Central Tractor Organisation, Delhi. He took delivery of
a consignment of iron and steel received by rail for the Organisation and removed them from the railway siding. The goods did
not reach the Organisation. The appellant absented himself
from duty on the following days and when he was called he gave
a false explanation that he had not taken delivery of the goods.
The appellant was tried for misappropriation of the goods, under
s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the
S.C.R.
SUPREME COURT REPORTS
453
trial, he took the defence that he had moved the goods to another
I959
siding but this was not accepted and the appellant was convicted.
The appellant contended that his conviction was bad as the Krishan Kumar
prosecution had failed to prove that he converted the goods to
v.
his own use and did not apply them to the purpose for which he The Union of Indi•
had received them.
Held, that the appellant had been rightly convicted. The
offence of misappropriation was established when the prosecution
proved that the servant received the goods, that he was under a
duty to account to his master and that he had not done so. If
the failure to account was due to an accidental loss then the
facts being within the servant's knowledge, it was for him to
explain the loss; it was not for the prosecution to eliminate all
possible defences or circumstances which may exonerate him.
The giving of a false explanation was an element which the
Court could take into consideration in determining the guilty
intention.
Harakrishna Mehtab v. Emperor, A.I.R. (r930) Pat. 209;
Larnier v. Rex, (r9r4) A.C. 22r ; Emperor v. Santa Singh, A.I.R.
(1944) Lah. 338; Emperor v. Chattur Bhuj, (r935) l;L.R. Pat.
108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch,
(r854) 6 Cox. C. C. 445, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 114 of 1957.
Appeal by special leave from the judgment and
order dated December 6, 1955, of the Punjab High
Court (Circuit Bench) Delhi in Criminal App13al No.
25-D of 1953, arising out of the judgment and order
dated August 27, 1953, of the Court of the special judge
at Delhi in Criminal Case No. 3 of 1953.
R. L. Anand, and S. N. Anand, for the appellant.
H. J. Umrigar, and R. H. Dhebar, for the respondent.
1959. May 21. The Judgment of the Court was
delivered by
KAPUR J.-This appeal by special leave is brought
against the judgment and order of the High Court of
the Punjab confirming the order of conviction of the
appellant under s. 5(l)(c) of the Prevention of Corruption Act, 1947 (II of 1947) (hereinafter referred to as
the Act). The High Court reduced the sentence of the
appellant to nine months' rigorous imprisonment.
Kapur].
454
SUPREME COURT REPORTS [1960(1)]
r959
The appellant was employed as an Assistant Store
Keeper in the Central Tractor Organisation at Delhi
Krishan Kuma,
d
h
d
an amongst ot er
uties his duty was the taking of
The Uni;; of India delivery of consignment of goods received by rail for
Central Tractor Organisation and in that capacity he
Kapu. J.
is alleged to have misappropriated a major portion of
a wagon load of iron and steel W!lighing about 500 Mds.
received at Delhi Railway Station from the Tata Iron
& Steel Co., Tatanagar, under F,ailway Receipt
No. 039967 dated August 12, 1950. This consignment
of goods was taken delivery of on October 2, 1950 at
the Lahori Gate Depot. The consignment had been
lying at the Railway depot for a considerable time
and the Central Tractor Organisation was, before
taking the delivery, making efforts to have the wharf-
~.ge and demurrage charges reduced but Jt only
succeeded in getting a reduction of Rs. lOG
The
appellant pai

## Text

452
SUPREME COURT REPORTS [1960(1))
x959
Malanga who was a Ohandala.
Vishva Mitra was a.
v
G'.
Kshtriya and became a Brahman. Hinduism might
· :
'"
have become static at one stage but its modern history
Dippala ~"''Do,. shows that this is not so now and it would not be
•Kd Othm
wrong to say that caste in Hinduism is not dependent
upon birth but on actions. The whole theory of karma
K•P..• J.
is destructive of the claim of caste being dependent
upon birth..
I959
May ar.
In.my opinion Mr. Dippala Suri Dora had by his
actions raised himself to the position of Kshtriya and
he was no longer a member of the Scheduled Caste or
Tribe and on that ground also his election cannot be
supported.
I would therefore allow this appeal, set aside the
order of the High Court and restore that of the Tribunal. The appellant will be entitled to costs of this
Court as well as of the Courts below.
ORDER.
In view of the majority judgment of the Court the
appeal is dismissed with costs in favour of Respondent
No. I.
.A.:p:pe,al, diBrnissed.
KRISHAN KUMAR
v.
THE UNION OF INDIA
(JAFER IMAM and J. L. KAPUR, JJ.)
Criminal Trial-Misappropriation-Servant receiving goods
but failing to account to master-Proof of conversion, if necessaryF alse explanaJ.ion by servant, whether can be taken into consi.Iera·
tion-Prevention of Cormption, r947 (II of r947), s. 5(r)(c).
The appellant was employed as an Assistant Store Keeper
in the Central Tractor Organisation, Delhi. He took delivery of
a consignment of iron and steel received by rail for the Organisation and removed them from the railway siding. The goods did
not reach the Organisation. The appellant absented himself
from duty on the following days and when he was called he gave
a false explanation that he had not taken delivery of the goods.
The appellant was tried for misappropriation of the goods, under
s. 5(1)(c} of the Prevention of Corruption Act, 1947. At the
S.C.R.
SUPREME COURT REPORTS
453
trial, he took the defence that he had moved the goods to another
I959
siding but this was not accepted and the appellant was convicted.
The appellant contended that his conviction was bad as the Krishan Kumar
prosecution had failed to prove that he converted the goods to
v.
his own use and did not apply them to the purpose for which he The Union of Indi•
had received them.
Held, that the appellant had been rightly convicted. The
offence of misappropriation was established when the prosecution
proved that the servant received the goods, that he was under a
duty to account to his master and that he had not done so. If
the failure to account was due to an accidental loss then the
facts being within the servant's knowledge, it was for him to
explain the loss; it was not for the prosecution to eliminate all
possible defences or circumstances which may exonerate him.
The giving of a false explanation was an element which the
Court could take into consideration in determining the guilty
intention.
Harakrishna Mehtab v. Emperor, A.I.R. (r930) Pat. 209;
Larnier v. Rex, (r9r4) A.C. 22r ; Emperor v. Santa Singh, A.I.R.
(1944) Lah. 338; Emperor v. Chattur Bhuj, (r935) l;L.R. Pat.
108; Rex v. William, (1836) 7 C. & P. 338 and Reg v. Lynch,
(r854) 6 Cox. C. C. 445, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 114 of 1957.
Appeal by special leave from the judgment and
order dated December 6, 1955, of the Punjab High
Court (Circuit Bench) Delhi in Criminal App13al No.
25-D of 1953, arising out of the judgment and order
dated August 27, 1953, of the Court of the special judge
at Delhi in Criminal Case No. 3 of 1953.
R. L. Anand, and S. N. Anand, for the appellant.
H. J. Umrigar, and R. H. Dhebar, for the respondent.
1959. May 21. The Judgment of the Court was
delivered by
KAPUR J.-This appeal by special leave is brought
against the judgment and order of the High Court of
the Punjab confirming the order of conviction of the
appellant under s. 5(l)(c) of the Prevention of Corruption Act, 1947 (II of 1947) (hereinafter referred to as
the Act). The High Court reduced the sentence of the
appellant to nine months' rigorous imprisonment.
Kapur].
454
SUPREME COURT REPORTS [1960(1)]
r959
The appellant was employed as an Assistant Store
Keeper in the Central Tractor Organisation at Delhi
Krishan Kuma,
d
h
d
an amongst ot er
uties his duty was the taking of
The Uni;; of India delivery of consignment of goods received by rail for
Central Tractor Organisation and in that capacity he
Kapu. J.
is alleged to have misappropriated a major portion of
a wagon load of iron and steel W!lighing about 500 Mds.
received at Delhi Railway Station from the Tata Iron
& Steel Co., Tatanagar, under F,ailway Receipt
No. 039967 dated August 12, 1950. This consignment
of goods was taken delivery of on October 2, 1950 at
the Lahori Gate Depot. The consignment had been
lying at the Railway depot for a considerable time
and the Central Tractor Organisation was, before
taking the delivery, making efforts to have the wharf-
~.ge and demurrage charges reduced but Jt only
succeeded in getting a reduction of Rs. lOG
The
appellant paid Rs. 2,332-4-0 for demurrage by means of
credit notes P. N. and P. 0. on October 2, and on the
following day he paid a further sum of Rs. 57-3-0 by a.
credit note P. Q.
The prosecution case was that this
consignment never reached the Central Tractor
Organisation and that the appellant had removed
these goods and had misappropriated them. He was
absent from work after October 4, 1950, on the alleged
ground of illness but he was sent for on October 7, and
appeared before the Director of Administration Mr.
F. C. Gera and he gave an explanation that he (the
appellant) had lost the Railway Receipt along with
another Railway Receipt and blank credit notes which
had been signed by the Petrol and Transport Officer.
He also stated that he did not know that the goods
covered by that Railway Receipt had been cleared.
After this explanation the appellant was handed over to
the police and a case was registered against him at the
instance of Mr. F.C. Gera on October 7, 1950.
On the following day, that is, October 8, 1950, the
appellant made a statement to Sub~Inspector Sumer
Shah Singh that he had given the goods to Gurbachan
Singh who was traced and in the presence of this SubInspector who was not in uniform at the time Gurbachan Singh handed over Rs. 200 to the appellant
S.C.R.
SUPREME COURT REPORTS
455
which the Sub-Inspector took possession of and then
z959
Gurbachan Singh took the party which consisted of
.
.
the Sub-Inspector, Dharam Vir of the Central Tractor Krishan Kumar
Organisation and witness Karta.r Singh to the premises The Uni:~ of India
of Amar Singh at Kotia Khan where iron and steel
goods were seized and recovery memos prepared. Of
Kapur J.
the goods covered by the consignment seven packages
were later rec0rnred from the Lahori Gate Goods
Depot.
The defence of the appellant was that he took
delivery of the goods on October 2 and 3 and removed
them to another Railway Siding known as Saloon
Siding where the goods of the Central Tractor Organisation used occasionally to be stacked in order to save
wharfage and demurrage. In his evidence he stated
that he removed these goods to the Saloon Siding on
October 2 and 3 by means of a truck of the Central
Tractor Organisation which was driven by Sukhdev
Singh. The appellant produced Sukhdev Singh and
two chowkidars in support of his defence that he had
removed these goods from the Lahori Gate Depot to
the Saloon Siding by means of the truck of Sukhdev
Singh and on some on carts. The High Court has not
accepted this evidence. Therefore the position comes
to this that the goods received in that. consignment
were, according to the appellant's own showing,
removed from the Lahori Gate Depot but it is not
proved that they reached the Saloon Siding and they
did not reach the Central Tractor Organisation. There
is also the fact that the appellant gave false explanation on October 7, 1950, as to what had happened to
the Railway Beceipt or the credit notes which he had
received from the Central Tractor Organisation and
there is the further fact that the appellant was absent
from duty from October 4 to October 7 till he was sent
for Mr. F.C. Gera.
The prosecution also tried to show that the goods
were removed by Gurbachan Singh to Amar Singh's
place from where certain iron and steel goods were
recovered. Now these iron and steel goods do not
tally with the goods which were received from Tatanagar under Railway Receipt No. 039967 and the goods
456
SUPREME COURT REPORTS [1960(1)]
•9$9
seized from Amar Singh's place have not been shown
to be of the Tata Iron & Steel Co's manufacture.
Krlshan Kumar
v.
Therefore the case reduces itself to this that the appelTh• Union of India lant took delivery of the goods. These goods were
removed from the Lahori Gate Railway Depot by the
K•P•• J.
appellant and they never reached the Central Tractor
Organisation. The prosecution sought to connect the
goods found at Amar Singh's place with the goods
received, taken delivery of and removed by the appellant but they failed to do so because neither the
identity of the goods is the same nor has Gurbachan
Singh been produced to depose that it was the appellant who asked him to remove the goods for being
taken to Amar Singh's place.
In this view of the matter the question for decision
is whether the case of the prosecution should be held
to be proved that the appellant had misappropriated
the goods. It emerges from the evidence of both parties that the goods were received by the appellant and
removed by him; and they never reached the Cen~ral
Tractor Origanisation. Indeed before the High Court
it was not disputed that the appellant took delivery of
the whole consignment at Lahori Gate Depot and " he
was responsible for the actual removal of two considerable portions of the consignment on the 2nd and 3rd
of October. "
The offence of which the appellant has been convicted is s. 5(i) (c) of the Act which i~ as follows:-
5. (1)" A public servant is said to commit the offence
of criminal misconduct in the discharge of his duty-
( c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any
property entrusted to him or under his control
as a public servant or allows any other person so
to do";
The word 'dishonestly' is defined in s. 24 of the Indian
Penal Code to be
"Whoever does anything with the intention of
. causing wrongful gain to one person or wrongful
loss to another person is said to do that thing
'dishonestly'.
S.C.R.
SUPREME COUH,T REPORTS
457
" Fraudulently has been defined in the Indian Penal
r959
Code in s.· 25 as follows :
K . h
K
A
·
'd t d
th'
f
dul tl 'f h
ris an
umti7
'
"
person is sa1
o o a
mg rau
en y i
e
v.
does that thing with intent to defraud but, not other- Tire Union of India
wise."
·
Wrongful gain includes wrongful retention and wrongKapur J.
ful lass includes being kept out of the property as well
as being wrongfully deprived of property. Therefore
when a particular thing has gone into the hands of a
servant he will be guilty of misappropriating the thing
in all circumstances which show a malicious intent to
deprive the master of it. As was said ·by Fazl Ali, ,J.,
in Haralcrishna jlfahtab v. Emperor (1):
"Now I do not mean to suggest that it is either
necessary or possible in every case of criminal
breach of trust to prove in what precise manner the
money was spent or appropriated by the accused;
because under the law, even temporary retention is
an offence, provided that it is dishonest,. ............. .
........................ I must point out that the essential
thing to be proved in case of criminal breach of
trust is whether the accused was actuated by dishonest intention or-not. As the question of intention
is not a matter of direct proof, the Courts have from
time to time laid down certain broad tests which
would generally afford useful guidance in deciding
whether in a particular case the accused had or had
not mens rea for the crime. So in cases of criminal
breach of trust the failure to account for the money
proved to have been received by the accused or
giving a false account of its use is generally considered to be a strong circumstance against the
accused.''
The offence under s. 5(l)(c) is the same as embezzlement, which in English law, is constituted when the
property has been received by the accused for or in
the name or on account of the master or employer of
the accused and it is complete when the servant.
fraudulently misappropriates that property. (Halsbury's Laws of England, Vol. 10, 3rd Edition, p. 787)
In Larnier v. Rex(") the offence of embezzlement was
(1) A.I.R. (1930) Patna 209.
58
(2) (191~) A.C. 22r.
458
SUPREME COURT REPORTS [1960(1)]
z959
described as a wilful appropriation by the accused of
Krishan Kumar the property of another. A court of Justice, it was
v.
said in that case "cannot reach the conclusion that
The Union of India the crime has been committed unless it be a just result
of the evidence that the accused in what was done or
Kap"' J.
omitted by him was moved by the guilty mind."
So the essence of the offence with which the appellant was charged is that after the possession of the
property of the Central Tractor Organisation he
dishonestly or fraudulently appropriated the property
entrusted to him or under his control as a public
servant and deprived the owner, i.e., Central Tractor
Organisation of that property.
It is not necessary or possible in every case to prove
in what. precise manner the accused person has dealt
with or appropriated the goods of his master. The
question is one of intention and not a matter of direct
proof but giving a false account of what he has done
with the goods received by him may be treated a
strong circumstance against the accused person. In
the case of a servant charged with misappropriating
the goods of his master the elements of criminal
offence of misappropriation will be established if the
prosecution proves that the servant received the
goods, that he was under a duty to account to his
master and had not done so. If the failure to account
was due to an accidental loss then the facts being
within the servant's knowledge, it is for him to
explain the loss. It is not the law of this country
that the prosecution has to eliminate all possible
defences or circumstances which may exonerate him.
If these facts are within the knowledge of the accused
then he has to prove them. Of course the prosecution
has to establish a prima facie case in·the first instance.
It is not enough to establish facts which give rise to
a suspicion and then by reason of s. 106 of the Evidence Act to throw the onus on him to prove his innocence. See Harries, C.J., in Emperw v. Santa Singh (1)
In the present case the appellant received the consignment of goods which ca.me from Tatanagar. It is
admitted that he.removed them and it was found by
(1) A.I.R. (191tl Lah. ~38 at p. 346.
S.C.R.
SUPREME COURT REPORTS
459
the High Court that they never reached the Central
I959
Tractor Organisation. He gave an explanation in Krishan Kumar
court which has been found to be false.
Before
v.
Mr. F. C. Gera he made a statement to the effect that The Union of In4i4
he had lost the Railway Receipt and therefore had
never got the delivery of the goods which Wll\S also
Kapur J.
false. In these circumstances, in our opinion, t~e
court would be justified in concluding that he had
dishonestly misappropriated the goods of the Central
Tractor Organisation. The giving of false explanation
is an element which the Court can take into consideration. (Emperor v. Chattur Bhuj (1)). In Rex v.
William (2). Coleridge, J., charged the jury as follows :-
"The circumstances of the prisoner having quitted her place and gone off to Ireland is evidence
from which you may infer that she intended to
appropriate the money and if you think that she
did so intend, she is gully of embezzlement".
Again in Reg v. Lynch (3), Moore, J., said:-
"You have further the fact that, after gettingthe
money, the prisoner absconded and did not come
ha.ck till he was in custody. You may infer that
he intended to appropriate this money, and if so,
he is guilty of embezzlement."
The appllent'.s counsel relied on certain observations
in certain decided cases which, according to his submission, support his contention that the prosecution
has to prove not only receipt of goods by the accused
but also to prove that he converted them tc. his own
use and did not apply them to the purpose for which
he received them. He referred to Ghulam Haider v.
Emperor (4); In re Ramakkal & Others (5) ; Bolai
Chandra Khara v. Bishnu Bejoy Srimani (6); Bhikchand v. Emperor (7) ; Pritchard v. Emperor {
8
)~ So
broadly stated this submission does not find' support
even from the cases relied upon by the appellant's
counsel. They are all decisions on the peculiar circumstances of each case. In Ghulam Raider's case(')
(1) (1935) l.L.R. 15 Patna 108.
(2) (1836) 7 C. & P. 338.
(3) 1854 6 Cox. C.C. 445·
(4) AI.R. 1938 Lah. 534·
(5) A.I.R. 1938 Mad. 172.
(6) A.I.R. 1934 Cal. 425.
(7) A.I.R. 1934 Sindh 22.
(8) A.I.R. 1928 Lah •. 382.
460
SUPREME COURT REPORTS [1960(1)]
'959
the proposition was qualified by saying that proof of
receipt and failure to account "is a long wav towards
f\'rishaii J(a11uir
J
v.
proof of misappropriation but not the whole way."
The u .. ;o,. of India In that case the books in which receipts ought to
-
have been entered were not produced and there was
Kapur J.
absence of" clear accounts." In Ramakkal's case (1) the
accused was the receiver of a currency note found
bv a child and it was held that mere intention to
misappropriate or even preparation to that end was
not an offence. It was a case brought to the High
Court at an intermediate stage for quashing the charge
and the High Court did not do so.
Bolai Charul1ra
KJw,ra's case(') only emphasised that p1·oof of one element of the criminal breach of trust is not enough for
conviction and proof of non-payment of money collected by a gomastha must be given by the prosecution.
In Bhikchand's case(') it was held that it is only on
proof of non-payment of money received by the accused
that "presumption will arise of misappropriation."
In Pritchard's case(•) also the prosecution did not
produce the books of account showing non-payment.
All these decisions must be confined to their peculiar
facts and in their ultimate analysis do not support
the proposition contended for by the appellant.
What the prosecution have proved in this case is
that the appellant took delivery of the goods on
October 2 and 3. His own statement on oath shows
that he removed these goods from the Railway Siding.
This removal is also proved by documentary evidence
in· the form of gate passes. There is also proof of the
fact that the goods did not reach the Central Tractor
Orga.nisaUon. The appellant has given an explanation
that he removed these goods to the Saloon Siding.
This explanation has not been accepted. The prosecution have also proved that the appellant in the
first instance ga. ve a false explanation that he had
not taken delivery of the goods. He had absented
himBEllffrom duty and had to be called by the Officerin-charge. He has set up the defence of removal
to ·the Sa.loon Siding which was not
accepted.
(t) A.l.R. 1938 Mad. 172.
(z) A.l.R. 1934 Cal. 425.
(3) A.I.R. 193-J Sindh 22.
(4} A,l.R. 1928 Lah. 382.
S.C.R.
SUPREME COURT REPORTS
461
The prosecution also set out to prove that the goods
z959
were disposed of by the appellant by giving them to one Krishan Kumar
Gurbachan Singh who in turn put these at the premiv.
ses of Amar Singh and some steel goods were recover- The Union of India
ed
from there but the prosecution
have neither
produced Gurbachan Singh nor has it been proved
Kapur J.
that the goods are part of the consignment which was
taken delivery of by the appellant. If under the law
it js not necessary or possible for the prosecution
to prove the manner in' which the goods have been
misappropriated then the failure of the prosecution
to prove facts it set out to prove would be of little
relevance. The question would only be one of intention
of the appellant and the circumstances which have been
been above set out do show that the appellant in
what he ha.s done or has omitted to do was moved by
a guilty mind.
In our opinion the appellant was rightly convicted
and we would therefore dismiss this appeal.
.A.J>peal dismissed.
C. S. D. SW AMY
v.
THE STATE
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, JJ.)
Prevention of Corruption-Criminal miscondztct in discharge
of official duty-Charge in respect of specific instances of corruption
found unsustainable on evidence-Conviction based on presumptionV a:tidity-Prevention of Corruption Act, z947, (2 of z947), ss. 5(z)(a),
5(z)(d), 5(3).
The appellant was put up on trial on charges under ss. 5(1)(a)
and 5(1)(d) of the Prevention of Corruption Act, 1947. Payments
of particular sums by way of bribe were not proved against him.
But the High Court, holding that the'appellant's bare statements
..,
from the dock unsupported by any other acceptable evidence
could not satisfactorily account for the large deposits standing to
his credit in his bank accounts raised. the presumption under
s. 5(3) of the Act and held him guilty of criminal misconduct in
the discharge of his official duty under s. 5(1)(d) of the Act,
confirming the condction and sentence passed on him by the
l959
May 21.