Bindeshwari v. King-Emperor

Mukharji, J.:— Petitioner, Bindeshwari Prasad Jayaswal, was tried by a first class Magistrate on a charge under section 409 of the Penal Code, and on conviction was sentenced to rigorous imprisonment for one and a half years. He was also sentenced to pay a fine of Rs. 600 with rigorous imprisonment for four months, in default. He preferred an appeal against his conviction and sentence, and the appeal was heard by the second Additional Sessions Judge of Patna, who by his judgment, dated the 5th August, 1946, dismissed the appeal. The petitioner then came up in revision and his application was admitted by this Court on the 27th September, 1946. The Bench admitting the application directed the petitioner to be released on bail to the satisfaction of the District Magistrate, but at the same time issued a, rule for enhancement of the sentence. Thus, although it is a criminal revision, it has been argued as if it was an appeal.

The facts of the case are not many, and, they may be stated within a brief compass as follows: The petitioner filed an application before the Sub-divisional Magistrate of Dinapore to be appointed a Government stockist of foodgrains—vide Ext. 43. This was some time in 1943. Bhagwan Das, the deceased grandfather of the petitioner, had a firm dealing in grains. This firm which went by the name of Dukhitlal Bhagwan, Das was not in a flourishing condition after the death of Bhagwan Das. The father of the petitioner pre-deceased Bhagwan Das, and the family being in a rather straitened circumstance the petitioner filed the application in question before the Sub-divisional Magistrate with a prayer that he and his brother might be appointed Government stockists so that they might regain their lost trade. The Sub-divisional Magistrate called for a report from the police and thereafter issued an order making the firm of Dukhitlal Bhagwan Das Government stockist of food grains. The firm, it may be mentioned, was a joint family concern of the petitioner and his brother. The petitioner being the elder of the two male members was in charge of the, firm. After the application, Ext. 43, had been allowed by the Sub-divisional Magistrate, supply of grains began to be made to the firm. According to the practice then prevailing, sometimes supplies of food-grains were received from other firms located in the same town, and sometimes from out stations. A large quantity of food grains had been stored at a place known as Golghar in Patna. At times the firm of the petitioner and his brother received supplies from this Golghar also. It will appear from, the evidence of P.W 18 Harnandan Prasad, a godown clerk in the office of the Sub-divisional Officer of Dinapore, that the firm of the petitioner as Government stockist had to receive the supplies made from time to time, to keep the foodgrains in its godown and to issue supplies under the order of the Sub-divisional Officer for sale in the Government fair price shop. Periodical checks were made to see that the stock was not interfered with. One of these checks was made in the month of March 1945. Before the next check fell due the Sub-divisional Officer of Dinapore received a confidential information that the petitioner had removed about 2,000 maunds of Government rice for his own benefit. Mr. Ife, who had appointed the firm of the petitioner and his brother as Government stockist, was no longer at Dinapore. P.W 1, Mr. A.J Khan, was the Sub-divisional Officer in June 1945. On the 30th June, 1945, on receipt of the information just referred to, he along with his Assistant Supply Officer P.W 2, Mr. M. Khan, paid a visit to the godown of the petitioner. The petitioner was present at the godown, and when the Sub-divisional Officer wanted to verify the stock he (the petitioner) tried to put off the verification. The Sub-divisional Officer was determined to verify the stock, and seeing this attitude on his part the petitioner slipped away on the pretext that he should make arrangement for men to assist the Sub-divisional Officer in weighing the bags of rice in the godown. The verification had to be done in the absence of the petitioner as he did not return until after two days by which time the verification was complete, and it was found that between the book-balance and the actual stock there was a difference of 1,466 maunds of rice. The authorities discovered that the petitioner had pledged 500 maunds of rice with the Bank of Bihar on the 18th of May, 1945. There is a rice mill run by the firm of petitioner and his brother. On the mill premises, were found 22 bags of rice stored in a godown attached to the mill. A case was started against the petitioner for criminal breach of trust in respect of 1,434 maunds 15 seers and 14 chhataks of Government rice, valued at the prevailing rate at Rs. 15,410-12-0.

The charge against the petitioner runs as follows:

“That you between the 31st day of March 1945 and the 30th day of June 3945 at Dinapur being an agent for stocking food grains on behalf of the Government and in such capacity entrusted with certain property to wit, one thousand four hundred thirty four mds. fifteen seers and fourteen chataks of rice valued at Rs. 15,410-12-0, committed criminal breach of trust with respect to the said property and thereby committed an offence punishable under section 409 of the Penal Code.”

The petitioner was examined by the trial court on the 30th March, 1946. The only question put to him was,

“You have heard the statements of the complainant and the witnesses. What have you got to state?”

In reply, the petitioner stated that he did not commit any offence, and further told the court that he would file a written statement. The written statement promised to be filed was filed on the 30th March, 1946. In paragraph 1 of the written statement the petitioner denied having committed any offence. In paragraph 2 it was stated that besides being a Government stockist, the petitioner had an independent grain business of his own. The rest of the written statement is to the following effect:

The petitioner stores his grain in several houses in the town. His business is managed by his employees and not by himself. The verification of stock made by the Sub-divisional Officer and his sub-ordinate was faulty to a degree and should not be relied on. There is no evidence of criminal mis-appropriation. The petitioner admitted his civil liability in the matter and was ever ready to indemnify Government. The trial was bad because the charge was in respect of a total quantity alleged to have been mis-appropriated during a certain period.

At the trial the prosecution witnesses were cross-examined at length, but no evidence was adduced on behalf of the petitioner. As already stated, both the trial court and the appellate court took the view that the charge under section 409 of the Penal Code was brought home to the petitioner. I have also indicated above that when this Court admitted the application in revision it issued a rule on the petitioner to show cause why his sentence will not be enhanced.

Mr. Baldeva Sahay, who argued the case for the petitioner, strenuously contended that no charge of criminal breach of trust could be sustained against the petitioner because, so it has been argued, there was no entrustment to the petitioner personally. As already indicated the application for appointment as stockist was made by the petitioner. Only one sheet of the application is with the record the other sheet appears, to have mysteriously disappeared. The mutilated application which is on the record would go to show that it was on behalf of the petitioner and also on behalf of his younger brother. Exhibit 46 at page 89 of the Paper Book, part I, shows that on the 31st August, 1945, an order was passed by the then Sub-divisional Officer on the report of the officer in charge, Dinapore P.S regarding the antecedents of two firms including the firm of Dukhitlal Bhagwan Das. The officer in charge while reporting on the question of the suitability or otherwise of the firm of Dukhitlal Bhagwan Das mentioned that Bindeshwari Prasad Javaswal (the petitioner) was involved in the congress movement of August 1942. The Sub-divisional Officer passed an order (Ext. 46/2) appointing both the firms, mentioned in the police report, with effect from the 1st September, 1945. In fact, by this order the Sub-divisional. Officer also appointed another firm, namely that of Kalichand although the police report does not refer to it at all. The evidence of certain railway employees as also other evidence on the record would show that the firm of Dukhitlal Bhagwan Das was appointed Government stockist. In this connection I may refer to the evidence of P.W 18 Harnandan Prasad, a godown clerk in the S.D.O's office since August 1943. This witness, who was quite competent to depose as to who the Government stockists were, has stated as follows:

“Originally in 1943 there was only our firm which was Government stockist namely Kapoor Chand Ram Bachan Lall. In September 1943, 2 more, stockists were appointed namely—Dukhit Lall Bhagwan Dass and Chamroo Lall Shrikishun Lall.”

The witness further stated that the petitioner is the proprietor of the firm Dukhitlal Bhagwan Das. In fact this position is not denied. As already stated, it was a firm of the family of the petitioner including his younger brother. Strictly speaking, the food grains supplied in this case were entrusted to the firm of the petitioner and not to him personally. In this connection, I may refer to the case of S.C Guha v. Emperor. S.S Guha was prosecuted for an offence under section 409 of the Penal Code at the instance of the Dunlop Rubber Company (India), Ltd. The case against him was that he was a stockist of Dunlop tyres and that in his capacity as such he committed criminal breach of trust of goods valued at Rs. 8,081-12-0. The agreement with the Dunlop Company was signed by the National Cycle and Motor Company which was a family firm of S.C Guha, the latter being the Managing agent of the firm. Several invoices were exhibited in that case on behalf of Guha to show that the Dunlop Company was all through dealing with the National Cycle and Motor Company, and not with Guha as a man. It was held that a person who is the manager of a firm cannot be held criminally liable for breach of trust where there is no personal entrustment of goods to him but to the firm in respect of which the offence was alleged to have been committed. The conviction under section 409 of the Penal Code was accordingly set aside. The principle laid down in the Rangoon case appears to me to be applicable to the facts and circumstances of the present case. This, however, should not mean that the whole case ends here. It has to be seen in the circumstances of the present case whether the petitioner committed any offence of criminal misappropriation under section 403 of the Penal Code.

During argument Mr. Baldeva Sahay for the petitioner did not doubt the correctness of the verification made by the Sub-divisional Officer. It would appear from the evidence on record that some pains were taken by the Sub-divisional Officer over the matter. It would have been an easy, thing to simply count the rice bags which were found in the godown. The evidence shows that the bags were weighed. The Sub-divisional Officer remained in the godown for several hours and the weighing was done in his presence. As already indicated, the previous weighment was done about three months ago. At that time a shortage of 321 maunds and 7 chataks of rice was noticed. This was attributed to damage and destruction by rats. Government was written to for the shortage being condoned. This is what one finds from the evidence of the godown clerk, P.W 18 Harnandan Prasad. The evidence of Sub-divisional Officer clearly shows that on the 30th June, 1945, when he made the last verification a shortage of over 1,400 maunds was noticed. In the cross-examination of the witness it does not appear to have been suggested that the verification was not correctly done. We may, therefore, take the figures deposed to by the witness in this connection to be correct.

The petitioner put forward the plea that, he being a young man of 23 only the business was in the hands of his employees and that it is very likely that these employees or some of them removed the deficit rice from the godown in question. The record, however, does not bear put the contention of the petitioner that he had left the business entirely in the hands of his servants. One finds that one of the consignments of rice arriving in December 1943 was actually taken delivery of by the petitioner himself. It may also be recalled that the appointment of the firm as stockist was made at the instance of the petitioner. P.W 7 Govind Sahay is a clerk in the office of the Sub-divisional Officer of Dinapore. The following few lines from his evidence are important.

“I was Nazir from October or November 1942 to May 1945. I know the accused Bindeshwari Pd. He was a Government Stockist. I used to make payments to Government Stockist of Ry. freight, cartages, cooli hire and other misc. charges incurred by them. I also used to make payment of conveyance charges incurred by them in depositing sale proceeds to the credit of the Government. Ex. 26 series are the bills submitted by accused and the payments received by him…………All payments were made by me, and the accused signed in my presence.”

From this it is clear that the petitioner had not left the business entirely in the hands of his subordinates. Some of his own admissions will also go to show that he regarded himself as the stockist. Exhibit 51 is a petition filed by the petitioner to the District Magistrate for the withdrawal of the criminal case against him. In this petition it is stated that the petitioner accepted the position of a Government stockist of grains in his godown at Dinapore. His written statement is also in the same vein. In paragraph 2 of it the petitioner says that besides being a Government stockist he has independent grain business of his own. The real stockist in the eye of law may be the firm, but from what has been stated above it will be seen that the petitioner regarded himself as the stockist. The evidence on record does not justify an inference that the petitioner kept himself aloof from the business and left everything to his employees. If only a few maunds of rice disappeared from a godown in which there is a considerable stock, the owner may very well take the plea that his servants removed the same without his knowledge. In the present case the quantity removed from the godown is over 1,400 maunds. It was nowhere the case of the petitioner that he was absent from Dinapore for any length of time. Such absence might have given the employees an opportunity to do what they pleased. The suggestion that it is possible that the servants taking advantage of the youth and inexperience of the petitioner removed such a large quantity of rice from the godown is impossible to accept.

The prosecution adduced evidence in this case to prove that only a fortnight or so before the date of verification the petitioner had pledged 500 maunds of rice with the Bank of Bihar. There is a mention in the written statement that the petitioner had independent grain business of his own. The underlying suggestion no doubt is that the considerable quantity of rice pledged with the Bank was petitioner's own lire. The petitioner cannot carry on his grain business without books of account. If there was any truth in the suggestion that the 500 maunds of rice pledged by the petitioner only a fortnight before the date when a large shortage of stock was discoverer in the godown really belonged to him one would have expected the petitioner to produce his books of account and that would have shown beyond any doubt that the rice pledged with the Bank have nothing to do with the Government stock in the godown.

The conduct of the petitioner on the eve of the verification of stock by the Sub-divisional Officer also cannot possibly escape notice. The stock had been verified three months ago. Another verification was due and the Sub-divisional Officer was there to verify the stock. I may mention here that the previous stock-taking was not done by the Sub-divisional Officer, but by a sub-ordinate officer. Be that as it may when the Sub-divisional Officer visited the godown, and told the petitioner that he was there to verify the stock the petitioner, if he had no guilty conscience, should have at once welcomed the Sub-divisional Officer's suggestion. We have evidence of the Sub-divisional Officer to the effect that the petitioner tried to put off the verification. We are further told that when the Sub-divisional Officer insisted the petitioner left the place on the pretext that he was going to collect men for weighing. That this was a pretext and nothing more is clear from the fact that the petitioner made himself scarce and appeared before the Sub-divisional Officer after two days when a bail application was moved.

The learned Advocate for the petitioner has referred to the case of Harekrishna Mahatab v. Emperor in support of his contention that a case of criminal breach of trust failure to give a satisfactory explanation on the part of the accused should not be regarded as sufficient to justify his conviction. The case was in respect of a sum of Rs. 2,000 which Harekrishna Mahatab as the President of a village school had received from the District Board of Balasore of which he happened to be the chairman at the time when the money was sanctioned. After fresh election a new chairman came into office and the evidence of the case went to show that he belonged to a school of thought which was entirely different from that of Harekrishna, Mahatab. At the time the amount was paid to the village school an agreement was executed and the evidence was that the terms of this agreement were not strictly adhered to. A new District Board which came into being, as the result of fresh election asked the Secretary of the school to refund the amount. The school authorities took the plea, that a major Portion of the amount had already been spent for the school. Upon verification it was found that this was substantially true. However, as there was a breach of some of the terms of the agreement, the prosecution of Harekrishna Mahatab was launched and it was successful in the sense that the trial court convicted him and the conviction was upheld by the Sessions Judge. Then there was a revision before this Court, and the Bench which was composed of Fazl Ali, J. (as he then was) and Dhavle, J. acquitted the petitioner before them. It was laid down in that case that in a case of criminal breach of trust failure to account for the money proved to have been received by the accused or giving a false account as to its use is only an indication or piece of evidence pointing to dishonest intention and must be considered along with other facts of the case. The surrounding circumstances of the case before their Lordships were all in favour of Harekrishha Mahatab. The trial court, according to their Lordships took a somewhat extreme view. Their Lordships observed that the circumstances of the case did not preclude other views which were consistent with the innocence of the accused. After having referred to two views which were possible their Lordships went on to observe as follows:

“There is also another theory possible, namely, that the accused or the accused and the other members of the Committee did not like to refund the money to the District Board, specially as the demand for the refund proceeded from the few chairman who was by no means friend of the accused and that the accused and other members of the Committee may have actually shared the belief that the District Board having, once parted with the money in favour of the school was not justified in demanding it back and that the demand was being made out of spite against the accused who had been instrumental in securing the grant.”

The case of Harekrishna Mahatab thus does not bear any analogy to the case with which we are concerned. Here the petitioner made an application to the authorities and got his family firm appointed stockist of Government grains. He himself being the eldest male member was actively associated with the business of the firm. His conduct when the Sub-divisional Officer wanted to verify the stock showed that he clearly knew that a large quantity of the Government stock had been removed. Only 15 days before the date of verification he had pledged 500 maunds of rice with a Bank. Some rice was also found on his mill premises. During trial he attempted to throw the blame on his employees. The cross-examination of some of the prosecution witnesses would go to show that at one stage of the case it was attempted to prove that the petitioner had kept some of his stock in a godown which was in the possession of P.W 16 Ram Peare Lal. This Ram Peare Lal has taken on rent one of the houses belonging to the petitioner. Ram Peare Lal categorically denied that in June 1945 the petitioner removed any portion of his stock to the godown which was in Ram Peare's possession. The definite suggestion to this witness that some of the stock was removed, by the petitioner from his own go down to that of Ram Peare is apparently inconsistent with his plea that his servants clandestinely removed bags of food grains without his knowledge.

The essential ingredients of section 409 of the Penal Code fell to be considered in the case of King Emperor v. Chaturhbuj Narain Choudhury. It was laid down in this case that in a case of criminal breach of trust it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. An intention wrongfully to deprive the owner of the use of the property for a time and to secure the use of the property for his own benefit for a time may be sufficient. The facts and circumstances of the present case clearly point to the conclusion that the petitioner pledged 500 maunds of rice out of the Government stock of rice in his godown with the Bank of Bihar. It is possible that the petitioner did this with the idea that, the deficit would be made good afterwards. Even if he derived a temporary benefit in this way, he will be liable for criminal misappropriation. In the case of Chaturbhuj Narain Chaudhury a pleader was alleged to have retained a large sum of money without making it over to his client to whom the money belonged. Their Lordships held that failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered for be a strong circumstance against the accused.

The learned Advocate for the petitioner also drew our attention to the case of Robert Stuart Wauchope v. Emperor. Their Lordships of the Calcutta High Court held in that case that if the prisoner in a case of criminal breach of trust gives an explanation which may reasonably be true, true, even though it is not believed by the Judge or the jury, he or they must acquit the accused, because in such circumstances the onus of proving the guilt of the accused must be deemed not to have been discharged. I have already sufficiently, indicated that the explanation offered by the petitioner cannot be reasonably true. Even at the risk of repetition I may mention here that the story put forward by the petitioner that his employees were responsible for the shortage found in this case must be false. I have shown above that the conduct of the petitioner when the Sub-divisional Officer was about to verify the stock went to show that he (the petitioner) very well knew how matters actually stood. If his employees were to blame, how is it that he did not bring the matter to the notice of the authorities before the date of verification? During the cross-examination of the witnesses it must have been realised by the petitioner's pleader that it will not do to throw the blame on the servants. Hence, one finds that a suggestion was made to P.W 16, Ram Peare Lal, that the petitioner had removed a part of his stock to Ram Peare's godown. In a case of criminal mis-appropriation the prosecution need not prove the actual mode of misappropriation. They have, however, to prove dishonest misappropriation. Their Lordships of the Calcutta High Court in I.L.R 61 Calcutta, 168, observed that it is incorrect to say that once the prosecution has proved that the accused has received money on account of another and is unable to show from his account that he has used it properly, the conclusion must be that he has misappropriated the money. The facts of the case considered by their Lordships of the Calcutta High Court stand entirely on a different footing from the facts of the present case. Where an accused has his own private account and receives money on account of another person, it is not always easy for him to say after a length of time how the money received on account of the other person was spent. Failure to account or failure to render satisfactory account has, however, been always regarded as a circumstance pointing to the guilt of the accused.

Mr. Baldeva Sahay also contended that the charge, as framed, cannot stand. I have reproduced the charge in an earlier part of the judgment. According, to. Mr. Sahay, it offends against the provisions of section 222(2) of the Criminal Procedure Code. Sub-section (2) of section 222 of the Criminal Procedure Code enacts as follows:

“When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: Provided that the time included between the first and last of such dates shall not exceed one year.”

The charge in this case mentions that the petitioner committed criminal breach of trust in respect of 1,434 maunds 15 seers 14 chataks of rice between the 31st day of March, 1945, and the 30th day of June, 1945. The argument that has been advanced is that this charge would have been perfectly in order and fully in accordance with law if some money and not food grains had been misappropriated. Sub-section (1) of section 222 of the Criminal Procedure Code should be read in this connection. It is as follows:

“The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.”

It is not the prosecution case that the alleged criminal misappropriation of the stock of food grains was committed by the petitioner on several occasions. In March there was a verification and everything was apparently all right. Some shortage was no doubt found, but the authorities were preparer to make allowance for damage or destruction by rats and this allowance covered the shortage. After three months there was another stock-taking the quantity found in the stock, was found to be less by the quantity stated in the charge, and it was said that the petitioner had criminally misappropriated the difference. Whether the rice bags were removed from the godown on one particular day or they were removed on different dates was hardly possible for the prosecution to find out by enquiry, particularly during these days of food scarcity when every opportunity is being taken by dishonest dealers to sell their commodities in what is known as the “Blackmarket”. If the period during which the offence was committed was more than 12 months, difficulty would have arisen.

In support of his contention that the charge is defective, the learned Advocate for the petitioner referred to the case of Public Prosecutor v. N.S Sharma. It was also a case of criminal breach of trust punishable under section 409 of the Penal Code. The facts of the case may be shortly stated as follows: A certain company in Bombay sent goods to the accused (N.S Sharma) in his capacity as Manager of the company's branch at Mangalore. The charge against the accused was in respect of an aggregate sum of Rs. 757-4-9 which, was alleged to have been criminally misappropriated within a space of 12 months. The evidence was led to show that the accused collected two sums of money, namely, Rs. 103-12-0 and Rs. 70 from two customers. The rest of the amount alleged to have been criminally misappropriated represented, the value of goods supplied by the company. It was held by Pandrang Row, J. that the charge is not in accordance with the law. The charge purported to be in accordance with the provisions of section 223(2) of the Criminal Procedure Code, but it was really not so, inasmuch as it did not relate to money alone but to both money and goods. I may also state here, that the judgment shows that according to the Sessions Judge the entrustment itself had been proved beyond, doubt. The High Court also agreed with the learned Sessions Judge in this finding. After briefly stating the facts his Lordships remarked:

“In these circumstances, it is really impossible to say that the learned Sessions Judge was wrong in coming to the conclusion that the prosecution had failed to prove the factum of entrustment to an agent.”

I have given the case my most anxious consideration. In my opinion, the Government, rice was entrusted to the firm of which the petitioner and his younger brother were the proprietors. Technically speaking, there was no entrustment to the petitioner personally. I have, however, no reasonable doubt in my mind that the petitioner committed criminal misappropriation of the rice which was the subject matter of the charge against him. The offence, thus, does not come under section 409, but it comes under section 403 of the Penal Code. As an offence under section 403 of the Penal Code is a minor offence in relation to an offence under section 409 of the Penal Code, I alter the conviction from one under section 409 of the Penal Code to one under section 403 of the Penal Code. So far as the nature of the offence is concerned, there cannot be any doubt that it is very serious. It is well known that the food situation in the country is extremely grave. There cannot be any reasonable doubt that a bulk of the Government stock removed from the godown found its way to the blackmarket, where, as thing's stand today, no price is too high. It is true, the petitioner admitted his civil liability and was prepared to pay the price of the rice found short, but the price he is ready to pay is at the controlled rate. This will leave the profit that he must have made in the blackmarket unaffected. It is impossible for any Court to take a lenient view in such a case. As already stated, the trial court has awarded a sentence of 1½ years and has also imposed a fine. As a first class Magistrate he could not have awarded a sentence of more than two years. Under section 439, clause (3), this Court cannot enhance the substantive sentence so as to make it more than two years. Regard being had to all the circumstances, while altering the conviction from section 409 to section 403 of the Penal Code, I enhance the sentence from rigorous imprisonment for 1½ years to rigorous, imprisonment for two years. The sentence of fine will stand as it is. The application in revision is accordingly dismissed, and the rule for enhancement is made absolute. The petitioner must surrender to his bail bond and work out the sentence as enhanced by this Court. He must also pay the fine, or suffer imprisonment, in default.

Sinha, J.:— I agree.

S.H

Application dismissed.

Sentence enhanced.