Madhya Pradesh High Court
L.S.Ken vs The State Of Madhya Pradesh on 21 August, 2025
Author: Anil Verma
Bench: Anil Verma
1 CRA-518-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 21st OF AUGUST, 2025
CRIMINAL APPEAL No.518 of 2014
L.S. KEN
Versus
STATE OF M.P. THROUGH P.S. LOKAYUKT
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Appearance:
Shri Prashant Sharma, Advocate for appellant.
Shri Sushil Chandra Chaturvedi, Special Public Prosecutor for
respondent-Lokayukt.
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Reserved on : 24.07.2025
Delivered on : 21.08.2025
JUDGMENT
Appellant has preferred this criminal appeal under Section 374(2)
of Code of Criminal Procedure, 1973 (in short “CrPC“) being aggrieved
by the impugned judgment dated 25.03.2014 passed by Special Judge
(under Prevention of Corruption Act), Shivpuri in Special Sessions Trial
No.01/2008, whereby appellant L.S. Ken has been convicted under
Section 409 of Indian Penal Code (in short “IPC“) and sentenced to
undergo 2 years RI with fine of Rs.10,000/- with usual default stipulation.
2. Briefly stated facts of the prosecution are that Arvind Khare,
Inspector, Special Police Establishment (Lokayukt), Gwalior came to
know through reliable sources that land ad-measuring 201.80 hectares
situated nearby village Kalothara, Tahsil Karera, District Shivpuri was
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acquired by the Collector, Shivpuri on 30.03.1996 for Depot of ITBP,
Police and compensation amount of 80% was duly distributed. At that
time, absconding accused Umakant Singh Jadon and Yogendra Singh
Jadon had entered into agreement with a condition that they will provide
huge compensation to beneficiary and on the basis of said agreement,
Umakant Singh Jadon prepared 71 claim cases, which has been rejected
by the then Land Acquisition Officer, Shivpuri on 18.12.1996 on the
ground that power of attorney of 71 land owners have been forgedly
prepared with malafide intention to cheat them. On 01.05.2000, Court of
Additional District Judge, Shivpuri passed an order to enhance the
amount of compensation for three persons, which has been later on stayed
by the High Court of Madhya Pradesh Bench Gwalior. Even then, the
then Dy. Collector – R.N. Sharma has paid an amount of Rs.23,70,367/-
for five persons namely Ramjilal, Ishwariya, Vanshi, Savitri and Laksho
to broker Umakant Singh and Yogendra Singh. On the basis of aforesaid,
FIR (Ex.P-1) has been lodged at Crime No.84/2002 on 30.03.2002.
3. Brief facts of case of prosecution are further that during the
investigation, statements of some farmers have been recorded and record
has been seized and on the basis of aforesaid, it has been revealed that
absconding co-accused, co-accused Manish Verma in collision with Dy.
Collector L.S. Ken (appellant), co-accused R.N. Sharma and other co-
accused persons for obtaining compensation amount illegally got
executed agreement and power of attorney from some of the beneficiary
farmers with malafide intention and Mahendra Singh Jadon got opened
the Bank account at Shivpuri by stating false address and got cheques of
compensation amount of farmers in his name from the then Land
Acquisition Officer R.N. Sharma and appellant L.S. Ken had paid
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compensation amount of Rs.17,23,568/- from January, 1996 to July, 1996
to the absconding co-accused persons, who were the power of attorney
holders in place of the beneficiary farmers.
4. After completion of investigation, charge-sheet has been filed
before the competent Court. The Trial Court has framed charges under
Sections 409, 420, 468, 120-B of IPC along with Section 13(1)(d) read
with Section 13(2) of Prevention of Corruption Act, 1988 (in short, P.C.
Act“) against appellant L.S. Ken.
5. The appellant abjured his guilt and pleaded complete innocence.
Prosecution examined as many as 40 witnesses, while defence also
examined some of the witnesses.
6. The Trial Court on the basis of appreciation of evidence, convicted
the appellant L.S. Ken and co-accused R.N. Sharma (Dead) for offence
under Section 409 (2 count) of IPC and sentenced 2 years RI with fine of
Rs.10,000/-. Accused R.N. Sharma has also been punished for offences
under Section 13(1)(d) and 13(2) of P.C. Act and sentenced one year RI
with fine of Rs.5,000/-, co-accused Manish Verma has been convicted for
offence under Section 420 of IPC and sentenced 2 years RI with fine of
Rs.10,000/-, other co-accused persons have been acquitted from all the
charges. Being aggrieved by the aforesaid, appellant has preferred this
criminal appeal.
7. Learned counsel for the appellant contended that the Trial Court
has wrongly convicted the appellant on the basis of improper appreciation
of evidence. In the FIR, there is no specific allegation against the
appellant aforesaid. Land was acquired under the emergency clause and
compensation was duly calculated and paid and due process for final
calculation has been rightly taken place and after completion of entire
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process, appellant has passed the impugned Award on 30.03.1996. At the
time of enhancement, he was not posted in the said office. No allegation
has been levelled against him in relation to enhanced amount. R.N.
Sharma passed an Award for enhancement of amount in relation to only
five farmers. The main allegation has been levelled against R.N. Sharma
because calculation of enhanced amount was made by him. Appellant is
not the part of said transaction. There is material contradiction and
omission in the statements of prosecution witnesses, therefore, their
statements cannot be relied upon. He has been acquitted for offence under
Sections 420, 468, 120-B of IPC on the similar set of evidence. No prior
sanction for prosecution has been obtained under Section 197 of CrPC. In
absence of necessary sanction, prosecution is liable to be quashed against
appellant. He did not exceed in discharge of his official duty. There is no
cogent evidence regarding conspiracy of beneficiaries of power of
attorney holder with appellant. While discharging the duties as a Land
Acquisition Officer appellant has passed Award dated 30.03.1996 and
remaining amount, i.e., 20% (Rs.,17,23,568/-) of total Award has been
released as per rules during his tenure. Hence, it is contended that
prosecution has completely failed to prove any offence against appellant
and he deserves to be acquitted for offence under Section 409 of IPC.
8. Per contra, learned counsel for the respondent opposed the prayer
and prayed for its rejection by submitting that apart from the offence
under Section 409 of IPC and other offences are also proved against the
appellant and State has preferred separate Cr.A. No.1061/2014 for
enhancement of jail sentence of appellant along with seeking his
conviction in other offences. It is further submitted that being an accused
of offence under Sections 409 and 420 of IPC and other offences,
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aforesaid offences are not part of the official duty, therefore, no prior
sanction under Section 197 of CrPC is required in the matter. Hence, he
prays that appellant is not entitled for any relief.
9. Both the parties heard and perused the entire record with due care.
10. Learned counsel for the appellant firstly raised a legal issue that the
appellant is a Public Servant and no prior sanction for prosecution has
been obtained under Section 197 of CrPC. In absence of necessary
sanction, prosecution is not maintainable against appellant – L.S. Ken.
11. In the present case, undisputedly appellant is Public Servant and he is
said to have been committed alleged offence while discharging his
official duties. Upon examination the nature of duties under which the
offence was committed, it appears that the allegations against the present
appellant is that he committed forgery in connivance with other co-
accused and thereafter the appellant has been prosecuted. In various cases
viz. Inspector of Police and Another Vs. Battenapatla Venkata
Ratnam and Another reported in (2015) 13 SCC 87, Sambhoo Nath
Mishra Vs. State of U.P. and others reported in (1997) 5 SCC 326 and
Rajib Ranjan and others Vs. R. Vijaykumar reported in (2015) 1 SCC
513, the Hon’ble Apex Court summarized the principle saying that “even
while discharging his official duties, if a public servant enters into a
criminal conspiracy or indulges in criminal misconduct, such
misdemeanor on his part is not to be treated as an act in discharge of his
official duties and, therefore, provisions of Section 197 of CrPC will not
be attracted. The alleged indulgence of the officers in cheating,
fabrication of records or misappropriation cannot be said to be in
discharge of their official duty. Their official duty is not to fabricate
records or permit evasion of payment of duty and cause loss to the
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Revenue. The question of grant of sanction can be raised at any stage of
the trial.
12. In view of the judgment of Hon’ble Apex Court, this Court is of the
considered opinion that offence of cheating, fabrication, misappropriation
of record and criminal conspiracy cannot be said to be discharge of
official duty of the appellant, therefore, no prior sanction under Section
197 of CrPC is necessary for prosecution of appellant. Hence, the
contention made by learned counsel for the appellant cannot be accepted.
13. Hon’ble Apex Court in the case of Janeshwar Das Aggrawal vs.
State of U.P. reported in 1981 SCC (Cri.) 616 has laid down the law of
land that before conviction under Section 409 of IPC can be recorded,
prosecution must prove two essential ingredients, they are:
“(i) the factum of entrustment; and
(ii) the factum of misappropriation of entrusted
articles. The Supreme Court further held that even if it
be assumed that entrusment was proved, in absence of
any evidence to show either direct or circumstantial that
accused has misappropriated the article, the conviction
cannot be accorded under section 409 of IPC and the
conviction which was accorded was set aside.”
14. By testing the aforesaid principles as laid down by Hon’ble Apex
Court, let be examined the evidence, which has been placed by the
prosecution before the Trial Court.
15. It is admitted position that in the year 2000, co-accused R.N.
Sharma (died) being a Land Acquisition Officer, Shivpuri passed an
Award for enhancement of Awarded amount in relation to five farmers.
The sole and main allegation has been levelled against co-accused R.N.
Sharma that vide enhanced Award dated 20.10.2000, undoubtedly amount
of about more than rupees 23 lacs has been passed by him without any
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authority and jurisdiction to pass such Award.
16. Present appellant L.S. Ken was posted as Land Acquisition Officer,
Shivpuri from 1995 to 1997 and though he has passed an Award in
relation to remaining 20% of compensation amount to all the farmers
affected by the land acquisition, but no allegation has been levelled
against him in relation to enhanced amount of compensation and only
allegation has been levelled against him is that 20% amount of
compensation was deliberately and malafidely given to the power of
attorney holders and not to the farmers and it is also alleged that there
was conspiracy between power of attorney holders and the present
appellant. But it is also admitted position that entire proceeding regarding
calculation for enhanced amount was made by co-accused R.N. Sharma,
under whom, those persons, who have not approached the reference
Court, in their favour also, enhanced Award was passed, while for the
other persons, matter was already under litigation before the High Court
of M.P., wherein ITBP got the stay order.
17. From perusal of the judgment of the Trial Court, it appears in
absence of cogent evidence that Trial Court has failed to justify the role
of the appellant in the instant matter. Appellant L.S. Ken did not pass any
Award for enhanced amount and the complaint was filed only for
enhanced amount and the entire investigation was also undertaken for
issue regarding enhanced amount, therefore, all the responsibilities go to
the only co-accused R.N. Sharma.
18. Investigating Officer Inspector Arvind Khare (PW-34) in Para 6 of
his deposition categorically admits that he has prosecuted only four
persons, namely, R.N. Sharma, Mahendra Singh, Yogendra and Umakant
on the basis of his preliminary enquiry and initially FIR was also lodged
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against these four persons, therefore, it is clear in absence of any material
evidence that appellant L.S. Ken was not named in the FIR (Ex. P-1).
19. Apart from the above, written complaint (Ex. P-34) has been filed
before the S.P.E., Lokayukt, Gwalior, but name of appellant was also not
mentioned in that complaint. Inspector Arvind Khare submits an enquiry
report before the S.P.E., Lokayukt, Gwalior. Even in that enquiry report,
name of present appellant was not implicated as an accused and all the
relevant evidence has been found against co-accused R.N. Sharma.
20. Subsequent Investigating Officer Hukum Singh Yadav (PW-32)
also admits in his cross-examination that the complaint has been made in
relation to the enhanced amount given after 01.05.2000. Thus, present
appellant, who left the said office on August, 1997, has no connection
with the compensation amount released after he demitted the office.
Hukum Singh also confirmed that there was no complaint regarding the
original Award and complaint was investigated by him only in relation to
the enhanced amount regarding the complaint of five persons.
21. It appears that the main allegation levelled against the appellant is
that he has distributed 20% amount to 7 power of attorney holders
marked as Ex.D-3 (Banshi), Ex.D-19 (Bhuri, Makkho and Paana), Ex.D-
22 (Lalkishan), Ex. D-26 (Kailash Narayan) and Ex. D-29 (Dharam
Singh) and Ex.P-7 (Binda, Ramsevak) in an improper manner.
22. Vanshidhar Jatav (PW-5) admits in Para 8 of his cross-examination
that deposition (Ex.D-2) filed before the Land Acquisition Officer has
been signed by him and document (Ex.D-3) also contains his photograph
and same has been executed by him at the office of Sub-Registrar, Karera
and he also signed the said document. Vanshidhar categorically admits
that through Ex. D-3, he has executed power of attorney to Umakant and
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thereafter filed an application (Ex. D-4) with his signatures before the
Collector, Land Acquisition, Shivpuri and in that application, he
categorically mentioned that his 20% amount be paid to his power of
attorney Umakant and he has executed the alleged affidavit before the
Notary B.K. Gupta on 16.04.1996, therefore, from the statement of
Vanshidhar (PW-5), it is proved that he has duly executed the power of
attorney in favour of Umakant, therefore, power of attorney and the
affidavit signed by Vanshidhar cannot be considered as a fake document.
Sheela Devi Sahu (PW-21) also admits that she has executed power of
attorney in favour of Umakant and Mahendra for the purpose of
conducting the proceedings on behalf of her regarding payment of
enhanced compensation. Although Sheel Devi deposed that she has
cancelled the said power of attorney, but prosecution did not file any
relevant document to establish that power of attorney (Ex. D-34) has been
later on cancelled by Sheela Devi.
23. Chhita Jatav (PW-8) also admits in her cross-examination that Ex.
D-11 contains photograph of her husband Dhani Ram, Rajku, Ramko,
Sukhlal and Mulayam Singh and herself also and document Ex.D-12 has
been signed by all of them. But prosecution did not file any relevant
document that above power of attorney executed in favour of Umakant
and other persons have been later on cancelled by their executants.
24. It is also to be noted that all the alleged power of attorney were
never sent for examination of their genuineness. No handwriting expert
has been examined to prove that all these documents were forged and
fake documents, therefore, in absence of material evidence, prosecution
has failed to prove that these power of attorney are the fake and
fabricated documents.
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25. It is further to be remembered that all these power of attorney are
duly registered documents and same are never cancelled and in whose
favour, the power of attorney was executed, all those persons are still
absconding and no finding for fraudulently execution of documents has
been recorded against them.
26. The Supreme Court in the case of N. Raghavender Vs. State of
Andhra Pradesh, CBI reported in (2021) 18 SCC 70, dealing with the
applicability of Section 405 of the IPC has observed as under:-
“46. The entrustment of public property and
dishonest misappropriation or use thereof in the manner
illustrated under Section 405 are a sine qua non for
making an offence punishable under Section 409 IPC.
The expression “criminal breach of trust” is defined
under Section 405 IPC which provides, inter alia, that
whoever being in any manner entrusted with property or
with any dominion over a property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that property
contrary to law, or in violation of any law prescribing
the mode in which such trust is to be discharged, or
contravenes any legal contract, express or implied, etc.
shall be held to have committed criminal breach of trust.
Hence, to attract Section 405 IPC, the following
ingredients must be satisfied:
46.1. Entrusting any person with property or
with any dominion over property.
46.2. That person has dishonestly
misappropriated or converted that property to his
own use.
46.3. Or that person is dishonestly using or
disposing of that property or wilfully suffering any
other person so to do in violation of any direction of
law or a legal contract.’
27. It ought to be noted that the crucial word used in Section 405 IPC
is ‘dishonestly’ and therefore, it pre-supposes the existence of mens rea. In
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other words, mere retention of property entrusted to a person without any
misappropriation cannot fall within the ambit of criminal breach of trust.
Unless there is some actual use by the accused in violation of law or
contract, coupled with dishonest intention, there is no criminal breach of
trust. The second significant expression is ‘mis-appropriates’ which means
improperly setting apart for ones use and to the exclusion of the owner.
28. It cannot be ignored that these power of attorney have been
executed and action has been done on the basis of power of attorney.
Nothing is available on record to show that these power of attorney are
fake document, therefore, the power of attorney are legal authority given
by the land owners. There is no evidence to show that the appellant had
knowledge of the fact that the power of attorney, affidavits were got
executed by their executant in any fraudulently or dishonest manner.
Therefore, under this circumstance, distribution of compensation amount
to the beneficiary farmers through power of attorney holders in the lack
of proof of dishonest intention would not constitute an offence under
Section 409 of IPC.
29. Learned counsel for the respondent/prosecution has heavily relied
upon the document Ex. P-26 stating that the said rejection of reference
application was done by the appellant L.S. Ken and thereafter payment
has been made by the appellant, but from perusal of the document Ex. P-
26, it appears that when the proceedings regarding Ex. P-26 has been
done, at that time, appellant was not posted as a Land Acquisition Officer
and at that time, one Ashok Deshwal was the Presenting Officer, who had
rejected the reference application. Appellant remained on the said post
after 28.12.1996 only from June, 1997 to Aug., 1997 and at the relevant
time on 28.12.1996 also was not posted, therefore, the question of
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payment made to the farmers on the basis of said power of attorney does
not arise and thereafter in the year 2000, payment was made by the co-
accused R.N. Sharma, therefore, it is crystal clear that the appellant was
neither party in rejecting the applications nor involved in the payment to
the farmers in the year 2000. Hence, contention made by the learned
counsel for the respondent cannot be sustained.
30. Learned counsel for the respondent also contended that subordinate
of the appellant had visited the Bank for opening the account, but the
same allegation was neither mentioned in the FIR nor in the charge-sheet,
therefore, such allegation cannot be made on the basis of conviction of
present appellant.
31. The Trial Court in Para 13 also held that the absconded co-accused
has obtained compensation amount on the basis of power of attorney and
the same power of attorney and affidavits were executed by the
beneficiary farmers and nothing is available on record that registered
power of attorney has been cancelled prior to payment of compensation.
The Trial Court after considering the evidence on record came to the
conclusion in Para 17 of the judgment that there is no evidence in relation
to the conspiracy between power of attorney holders with present
appellant regarding the acquisition of power of attorney and affidavit
attached to it. Accordingly, appellant L.S. Ken has been rightly acquitted
for the offence under Sections 420, 468, 120-B of IPC and Section 13(1)
(d) read with Section 13(2) of P.C. Act on the same set of evidence.
32. Hon’ble Apex Court in the case of Hira Lal Panna Lal Mahi Vs.
State of Gujarat (SC), reported in 1969 CAR (SC) 204 in para 6 of the
judgment, observed as under:
“We have gone through the reasoning of the High
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13 CRA-518-2014Court in this regard. It has acquitted the appellant of the
offence under Section 471, IPC on the specific finding
that on the evidence it is difficult to come to the
conclusion that the appellant knew or even had reason
to believe that the licence in question, Exhibit 48, bore a
forged signature of the officer Mr. Pillania. The High
Court also is of the view that the appellant’s guilt or
otherwise under Section 420, IPC will have to be
considered only with reference to the licence Exhibit 48
given to the witness Rajaji. Prima facie, we are inclined
to accept the contention of the learned counsel for the
appellant that when once the conviction of the appellant
under Section 471, IPC has been set aside, the High
Court was not justified in convicting him under Section
420, IPC. We have also gone through the evidence of
Rajaji, Exhibit 47 and his evidence does not establish
any false representation having been made by the
appellant. On the other hand it is clear that Rajaji must
have been well aware that he will not get a valid licence
for driving motor vehicles. He has not gone to Pali and
he has also failed in the driving test at Ahmedabad.
Therefore, there is no question of the appellant having
cheated Rajaji so as to be liable under Section 420,
IPC.”
33. The High Court of Gujarat relying upon judgment of Hon’ble Apex
Court in the case of Hira Lal Panna Lal Mahi (Supra) also observed in
the case of Arvind Balashanker Joshi Vs. State of Gujarat reported in
1990 SCC Online Guj 64 held as under:-
“13……Once the accused is acquitted/exonerated
from the charge under Section 468 of the I.P.C., in my
view, he cannot be convicted for the offence punishable
under Section 471 of the I.P.C. When accused-petitioner
cannot be convicted for the offence punishable under
Section 471 of the I.P. Code, in view of the observations
made by the Supreme Court in the case of Hira Lal
Panna Lal (supra), he cannot be convicted for the
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14 CRA-518-2014stated above, when accused is acquitted of the offence
under Section 468 of the I.P.C. he cannot be convicted
for the offence punishable under Section 471 of the
I.P.C.; unless there is direct and independent evidence
irrespective of circumstantial evidence…………”
34. In view of the above settled legal position, this Court is of the
considered opinion that appellant has rightly been acquitted for offence
under Sections 420, 468, 120-B of IPC and Section 13(1)(d) read with
Section 13(2) of P.C. Act on the similar set of evidence. There is no direct
or indirect evidence in respect of the circumstantial evidence on record to
prove that the appellant was involved in the aforesaid transaction as a
middle man and forged the power of attorney and affidavit with intention
to cheat the beneficiary, therefore, appellant cannot be convicted for
offence under Section 409 of IPC.
35. This Court also constrained to observe that in this case, the
Investigating Agency has adopted a casual and callous approach. The
resultant effect is that though there is mere a strong suspicion of criminal
breach of trust against the appellant, but such suspicion falls short of a
conclusive proof to hold him guilty of the criminal charge. The best
evidence having been withheld by the prosecution, the benefit of doubt
must be extended to the appellant, for no conviction can be sustained on
the basis of conjectures and surmises. Non-production of the material
evidence regarding fabrication of documents also adversely effects the
reliability of investigation conducted in the instant case.
36. On the basis of aforesaid for going discussion, this Court is of the
considered opinion that there is no cogent evidence available on record
that the appellant L.S. Ken hatched any criminal conspiracy with other
co-accused persons and had fraudulently and dishonestly misused his
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official position as a Public Servant and took any undue advantage or
profit and misappropriating entrusted Government amount to him. Prime
accused Umakant and others are still absconding and similarly, therefore,
prosecution utterly failed to prove ingredients of offence under Section
409 of IPC against the appellant beyond all the reasonable doubt.
37. Resultantly, the conviction and sentence passed by the Trial Court
regarding the appellant under Section 409 of IPC is held to be bad in law
and prosecution has failed to prove his entire case beyond reasonable
doubt against the appellant, therefore, conviction of the appellant
deserves to be set aside.
38. Accordingly, this appeal is allowed and appellant L.S. Ken is
acquitted from the charges levelled against him under Section 409 of IPC.
39. Appellant is on bail. His bail bond and surety bond stand
discharged.
40. Fine if paid be returned back to appellant.
41. Order regarding disposal of property as pronounced by the Trial
Court is hereby upheld.
42. Let a copy of this judgment along with record of the Trial Court be
sent back to the concerned Trial Court for necessary information and
compliance.
43. Certified copy as per rules.
(ANIL VERMA)
JUDGE
Abhi
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