Patna High Court
Ramshreshtha Sharma vs The State Of Bihar on 21 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.564 of 2024
Arising Out of PS. Case No.-616 Year-2013 Thana- MASTURBATION MUFFASIL District-
Samastipur
======================================================
Ramshreshtha Sharma, Son of Late Fakira Mistri Village- Laxmipur Ps- Sakra
Dist- Muzaffarpur
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ajay Kumar Thakur, Sr. Advocate
Mr.Md.Imtyaz Ahmad, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr.Ritwik Thakur, Advocate
For the Respondent/s : Mr.Murli Dhar, APP
Mrs.Asha Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 21-07-2025
1. The instant revision under Section 397 read with
Section 401 of the Code of Criminal Procedure is directed
against the judgement and order of conviction of sentence
dated 18th of May, 2024, passed by the learned Additional
Sessions Judge 1st, Samastipur in Cr. Appeal No. 14 of
2024, whereby and whereunder, he dismissed the appeal
filed by the petitioner, affirming the order of conviction and
sentence, passed by the learned Sub-Divisional Judicial
Magistrate, Samastipur in G.R. Case No. 3480 of 2013,
arising of Samastipur Muffasil P. S. Case No. 616 of 2013,
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
2/17
T.R. No. 1255 of 2024, convicting the petitioner for the
offence punishable under Sections 406 and 420 of the
Indian Penal Code and sentencing him to undergo rigorous
imprisonment for 3 years each on each count of offence
with fine of Rs. 10,000/- each with default clause of
imprisonment for 3 months for non-payment of fine. It was
directed that substantive punishment of imprisonment for
the offence under Sections 406 and 420 of the IPC shall run
separately.
2. In appeal, the Appellate Court modified the
order of sentence with a direction that the substantive
imprisonment for 3 years for the offences under Sections
406 and 420 of the IPC shall run concurrently.
3. Legality, validity and propriety of the order of
conviction and sentence is under challenge in the instant
revision.
4. Samastipur Muffasil P. S. Case No. 616 of 2013
was registered on the basis of a written complaint submitted
by one Sunil Kumar Sinha (P.W. 4), Divisional Manager,
Bihar State Warehousing Corporation (hereinafter referred
to as “BSWC”), Muzaffarpur, alleging, inter alia, that the
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
3/17
petitioner was the PCDO and In-Charge of
godowns/warehouses, owned by BSWC, Samastipur. He
was posted as In-Charge of warehouse at Samastipur during
the period between 25th of February, 2010 and 31st of July,
2012. On 31st of July, 2012, he was transferred from
Samastipur. He was directed to handover charge to his
successor, namely, Mukeshwar Sharma, However, he did
not deliver charge of the warehouse at Samastipur. Under
such circumstances, the District Magistrate, Samastipur,
vide letter dated 9th of December, 2023 directed P.W. 4 to
make an inventory of the stock in the said warehouse in
presence of a Magistrate. It was stated in the complaint that
during inventory, the officers of the District Administration,
Samastipur including P.W. 4 found shortage of 2230 sacks
of DAP fertilizer. The inventory team found 30 sacks of
DAP fertilizer and 11 sacks of suffering fertilizer in the said
godown. It is alleged that the petitioner misappropriated
2230 sacks of DAP fertilizer weighing about 111.500 metric
tone amounting to Rs. 44,29,449.00 and committed
cheating in respect of Government property, thereby,
causing loss to the Corporation to the tune of the aforesaid
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
4/17
amount.
5. Police took up the case for investigation and
ultimately submitted charge-sheet against the accused on
30th of June, 2018 under Sections 406 and 420 of the IPC
and Section 7 of the Essential Commodities Act. The
accused / petitioner faced trial on the above-mentioned
charge. During trial prosecution examined 7 witnesses
amongst them P.W. 1 Suresh Prasad, was a peon of the said
warehouse, P.W. 2, Jayram Kumar Thakur was a PCDO,
BSWC, P.W. 4 Sunil Kumar Sinha is the informant, P.W. 5
and P.W. 6 Manoj Kumar and Rajeev Roshan were
Investigating Officer and P.W. 7 Ish Narayan Singh was a
retired employee of BSWC. During Trial, some documents
were marked exhibits at the instance of the witnesses on
behalf of the prosecution, which I proposed to discuss
subsequently.
6. In support of his defence, the accused examined
two witnesses including himself. D.W. 1 is the son of the
accused / petitioner and D.W. 2 is the petitioner himself. He
also proved two documents in course of his examination.
The same documents were marked as Exhibit A and A/1
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
5/17
respectively.
7. Both the Courts below examined the evidence
on record adduced by the prosecution and defence, both oral
and documentary, and convicted and sentenced the
petitioner for the offence punishable under Sections 406 and
420 of the IPC. The accused, however, was acquitted of the
charge under Section 7 of the Essential Commodities Act.
8. At the outset, this Court likes to to record that
Revisional Court does not have any power to reappraise the
evidence adduced by the parties during trial of the case.
9. In Hydru v. State of Kerala, reported in (2004)
13 SCC 374, the Hon’ble Supreme Court in paragraph 3 of
the judgement held as hereunder:-
“3. From a bare perusal of the
impugned order, it would appear that the
High Court upon reappraisal came to a
conclusion different from the one recorded
by the appellate court. It is well settled that
in revision against acquittal by a private
party, the powers of the Revisional Court
are very limited. It can interfere only if
there is any procedural irregularity or
material evidence has been overlooked or
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
6/17misread by the subordinate court. If upon
reappraisal of evidence, two views are
possible, it is not permissible even for the
appellate court in appeal against acquittal
to interfere with the same, much less in
revision where the powers are much
narrower. No procedural irregularity has
been found by the High Court in the order
of the Sessions Court whereby the appellant
was acquitted. Therefore, we are of the view
that the High Court was not justified in
interfering with the order of acquittal in
exercise of its revisional powers, as such
the same is liable to be interfered with by
this Court.”
10. In the above-mentioned reported judgement,
the accused/appellant was acquitted by the learned Sessions
Judge. The High Court on reappraisal of evidence, reverse
the order of acquittal and convicted the accused. The
Hon’ble Supreme Court was pleased to set aside the order
of conviction passed by the High Court.
11. The factual circumstances of this case is
somewhat different. The accused / petitioner has
approached this Court against the order of conviction
passed by both the Courts below. However, what is
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
7/17
axiomatic is that in revision reappraisal of evidence is not
permissible except where material evidence is overlooked
by the Courts below.
12. Therefore, the revisional jurisdiction of this
Court permits consideration of evidence on record only for
limited purpose as to whether the material evidence was
overlooked by the Trial Court or not. From the evidence of
P.W. 1, it is ascertained that the petitioner was transferred to
Buxar on 31st of July, 2012. He was directed to deliver
charge to his successor Mukeshwar Sharma. It is also found
from the evidence that at the relevant point of time he was
In-Charge of 13 / 14 warehouses / godowns in the district of
Samastipur. The petitioner delivered charge of all the
warehouses / godowns except the godown at Samastipur.
13. It appears from the evidence of the informant
being the Divisional Manager, BSWC, Samastipur that
during the period between 16th of November, 2013 and 21st
of November, 2013, he supplied 2140 bags of DAP
fertilizers to the petitioner. Though he was under order of
transfer in the month of July, 2012 to Buxar. He received
the said bags of fertilizers as he did not deliver charge of the
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
8/17
said godown situated at Vyapar Mandal, Samastipur. When
there was inordinate delay in delivering charge of the
godown situated at Vyapar Mandal and inspection was held
in the said godown under the leadership of P.W. 4. At the
time of inspection, inventory was made and only 30 bags of
DAP and 11 Bags of scattered fertilizers were found. The
stock register of the said godown was examined and it was
ascertained that the missing bags of fertilizers were not
distributed and delivered to any person.
14. From the evidence of other witnesses, it is
ascertained that the petitioner was transferred to Buxar on
31st of July, 2012 but he did not deliver charge of the
concerned warehouse to his successor, Mukeshwar Sharma
till 9th of December, 2013.
15. Thus, the control of the warehouse was with
the petitioner till 9th of December, 2013 and it was the duty
of the petitioner to explain the stock of the fertilizers
supplied to the said warehouse during his tenure.
16. From the record of the Trial Court, it is found
that after receiving the order of transfer, the petitioner went
on leave. D.W. 1 is the son of the petitioner, who stated that
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
9/17
on 28th of February, 2013, the petitioner made an
application to his superior authority for extension of his
leave. In his evidence, the accused stated that on oath that
on 13th of February, 2013, he gave charge of 3255 bags of
fertilizers and on 7th of September, 2013, he gave charge of
17749 bags of fertilizers to Mukeshwar Sharma. It is also
stated by him that he was in jail for two and half years, on
the charge of embezzlement of fertilizers.
17. Mr. Ajay Kumar Thakur, learned Senior
Advocate for the petitioner submits that both the Courts
below erred in convicting and sentencing the petitioner
under Sections 420 and 406 of the IPC because of the fact
that no offence under Section 420 of the IPC was
committed by the petitioner. Even if, the entire prosecution
case is accepted on its face value. The case against the
petitioner is that he was entrusted with bags of fertilizers
which he misappropriated. The criminal misappropriation
and cheating are distinct and separate offences and a person
cannot be simultaneously charge for the offence of cheating
and criminal breach of trust for the same transaction
because for the offence of cheating dishonest intention of
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
10/17
the accused must exists at the very inception of any
transaction whereas in case of criminal breach of trust there
must exists relationship between the parties whereby one
authority entrust with the property as per law in favour of
accused and the accused misappropriates the properties so
entrusted. No case is made out against the petitioner for the
offence under Section 420 of the IPC. The petitioner was
wrongly convicted and sentenced to suffer imprisonment for
the offence under Section 420 of the IPC.
18. In Deepak Gaba & Ors. v. State of U.P., &
Anr. reported in (2023) 3 SCC 423, the Hon’ble Supreme
Court had the opportunity to discuss the ingredients of
offence under Sections 406 and 420 of the IPC. It is
needless to say that 406 of the IPC prescribes punishment
for breach of trust which may extend to 3 years or with fine
or with both. Section 405 of the IPC defines criminal breach
of trust. In order to prove criminal breach of trust,
prosecution is under obligation to establish the following
ingredients:-
(a) the accused was entrusted with property, or
entrusted with dominion over property
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
11/17
(b) the accused had dishonestly misappropriated or
converted to their own use that property, or dishonestly used
or disposed of that property or wilfully suffer any other
person to do so; and
c) such misappropriation, conversion, use or
disposal should be in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract which the person has
made, touching the discharge of such trust.
19. The Hon’ble Supreme Court, thus, held that
criminal breach of trust would, inter alia, mean using or
disposing of the property by a person who is entrusted with
or otherwise has dominion. Such an act must not only be
done dishonestly, but also in violation of any direction of
law or any contract express or implied relating to carrying
out the trust.
20. It is submitted on behalf of the State that
undoubtedly the petitioner was entrusted with 2160 bags of
fertilizers by the BSWC. The petitioner never challenged
that the said bags of fertilizers were not received by him
from BSWC. As a manager of Vyapar Mandal Warehousing
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
12/17
Corporation, he was entrusted to keep and distribute the
fertilizers as per direction of his higher authority, which he
did not. He was transferred to Buxar by an order dated 31 st
of July, 2012. However, he did not deliver charge to his
successor. He retained control of the warehouse till
December, 2013. When search was conducted in the said
warehouse, the Government Authority found 2130 bags of
DAP fertilizers missing. As the said bags of fertilizers were
entrusted to the petitioner, it was his duty to explain as to
why the said bags of fertilizers were not found in the
warehouse. In the absence of such explanation, it would be
held that the accused has dishonestly misappropriated or
converted to his own use the said property or dishonestly
used or disposed of that property. When the property
entrusted to the petitioner is not found in the warehouse and
no plausible explanation was given by him, the Court has
no other alternative but to hold that the petitioner
committed an offence of criminal breach of trust within the
meaning of Section 405 of the IPC and both the Courts
below rightly convicted the petitioner for the offence under
Section 406 of the IPC.
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
13/17
21. In this regard, this Court may use illustration B
of Section 406 which runs thus:-
“A is a warehouse-keeper, Z going on a
journey entrusts his furniture to A. Under a
contract that it shall be returned on payment of
a stipulated sum for warehouse room. A
dishonestly sells the goods. A has committed
criminal breach of trust.”
22. In the instant case, the petitioner was
warehouse keeper. He was entrusted to 2130 bags of
fertilizers by the BSWC. He did not deliver the charge of
the said fertilizers immediately after is transfer from
Samastipur to Buxar. When he delayed delivery of charge of
the said warehouse, inventory was made and the articles
were found missing from the warehouse. The petitioner is,
therefore, liable for criminal breach of trust. It is stated by
the informant that as a result of missing of the said
fertilizers, Government incurred loss of Rs. 44,29,449.00/-.
23. Under such circumstances, the Courts below
did not commit any error in convicting the accused for the
offence under Section 406 of the IPC.
24. In paragraph 18 of Dipak Gaga (supra), the
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
14/17
Hon’ble Supreme Court held:-
“18. In order to apply Section 420IPC,
namely, cheating and dishonestly inducing
delivery of property, the ingredients of Section
415IPC have to be satisfied. To constitute an
offence of cheating under Section 415IPC, a
person should be induced, either fraudulently or
dishonestly, to deliver any property to any
person, or consent that any person shall retain
any property. The second class of acts set forth
in the section is the intentional inducement of
doing or omitting to do anything which the
person deceived would not do or omit to do, if
she were not so deceived. Thus, the sine qua non
of Section 415IPC is “fraudulence”,
“dishonesty”, or “intentional inducement”, and
the absence of these elements would debase the
offence of cheating.”
25. In Mohd. Ibrahim v. State of Bihar reported in
(2009) 8 SCC 751, the Hon’ble Supreme Court observed
that for the offence of cheating, there should not only be
cheating, but as a consequence of such cheating, the
accused should also have dishonestly adduced the person
deceived to deliver any property to a person; or to make,
alter, or destroy, wholly or in part, a valuable security, or
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
15/17
anything signed or sealed and which is capable of being
converted into a valuable security.
26. Thus, mere breach of a promise, agreement or
contract does not, ipso facto, constitute the offence of the
criminal breach of trust contained in Section 405 IPC
without there being a clear case of entrustment. Mainly, the
difference between criminal breach of trust and cheating
would depend upon the fraudulent inducement and mens rea
to support of criminal breach of trust and cheating existence
of fraudulent or dishonest intention right at the beginning of
the transaction with mens rea must be shown. Breach of
contractual obligation which was accompanied by
fraudulent, dishonest or deceptive inducements resulting in
involuntary and inefficient transaction stand criminalized
under Section 415 of the IPC.
27. The above principle was laid down by the
Hon’ble Supreme in Satishchandra Ratanlal Shah v. State
of Gujarat & Anr, reported in (2019) 9 SCC 148.
28. In the instant case, it is not alleged by the
informant that the BSWC was induced fraudulently or
dishonestly by the petitioner to deliver 2160 bags of
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
16/17
fertilizers to him to keep them in the concerned warehouse.
It is also not the case that the corporation being fraudulently
or dishonestly induced by the petitioner to deliver the said
property.
29. Therefore, this Court is of the view that both
the Courts below committed illegality and impropriety in
holding the petitioner guilty of offence under Section 420.
30. Accordingly, the petitioner is acquitted of the
charge under Section 420 of the Indian Penal Code.
31. However, the order of conviction and sentence
for the offence punishable under Section 406 of the IPC is
affirmed.
32. Now with regard to sentence, it is submitted by
the learned Advocate for the petitioner that both the Courts
below passed sentence of rigorous imprisonment for a term
of 3 years for the offence punishable under Section 406 of
the IPC. The petitioner surrendered in the Court below on
4th of May, 2018. He was released on bail on 4 th of February,
2021, meaning, thereby, he remained in custody for about
two years and 9 months and again he is taken into custody
on declaration of his conviction and sentence since 20 th of
Patna High Court CR. REV. No.564 of 2024 dt. 21-07-2025
17/17
April, 2024.
33. Thus, this Court finds that the petitioner has
already completed the period of sentence which he required
to suffer for the offence punishable under Section 406 of the
IPC.
34. For the reasons stated above, the remaining
period of sentence, if any, is set off against the actual period
of incarceration.
35.With the above order, the instant criminal
revision is disposed of.
(Bibek Chaudhuri, J)
skm/-
AFR/NAFR NAFR CAV DATE 19.07.2025 Uploading Date 21.07.2025 Transmission Date 21.07.2025