1. The petitioner was convicted by a Magistrate of having in his capacity as a servant of the Maksudpur Estate dishonestly converted to his own, use a sum of Rs. 2,920 and was sentenced under S. 408, I.P.C, to undergo rigorous imprisonment for three months' and to pay a fine of Rs. 200. An appeal against the conviction and sentence was dismissed by the Sessions Judge of Gaya. The petitioner was a gomasta whose duty was to collect rents' from raiyats of villages in his charge belonging to the estate. He was appointed in October 1930. His accounts were checked by a tahsildar of the estate in August 1932 and it was then found that he had collected Rs. 2,920 more than he had deposited in the estate treasury. The matter was reported to the Manager who dismissed him two days later. When he made over charge to the man appointed to succeed him he admitted in writing liability for the deficit and is said to have promised to pay the money within a week. He did not do so and eventually a complaint was lodged with the result already stated. The principal ground of the application is that the conviction cannot stand because the charge as framed offends against the provisions of Section 222 of the Cr PC. The charge runs as follows:
“That on or about the 12th day of August 1932 …… being a servant, namely a gomasta in the employment of Maksudpur Estate and in such capacity having dominion over Rs. 2,920-3-5 committed criminal breach of trust with respect to the said amount.”
2. S. 222 provides that the charge shall contain such particulars as to the time and place of the alleged offence as are reasonably sufficient to give the accused notice of the matter with which he is charged but that where 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, and the dates between which, the offence is alleged to have been committed without specifying particular items or dates provided that the time included between the first and last of such dates does not exceed one year. It is contended that in the present case the period is likely to have covered more than one year for it was admitted by a peshkar of the estate that the last audit of the petitioner's accounts was made 2 to 2½ years before the audit by the tahsildar at which the defalcations were detected. The estate was in possession of books of account, registers and collection papers which would have shown when the particular items which made up the total of Rs. 2,920 were converted by the petitioner to his own ???; but as these were not produced it ??? a legitimate inference that if they had been produced they would not have supported the allegation made in the petition of complaint that the defalcations covered a period of only one year. The view taken by the appellate Court ??? that the embezzlement was committed after 12th August 1932, when the petitioner failed to pay the money which ??? that day he admitted he was liable ??? pay. This in my opinion is net the correct view. It is shown to be incorrect by the language in which the learned Sessions Judge has expressed it. He has observed:
“The appellant's duty as gomashta was to keep the amount of rent collected in his charge and to make them over to the head office of the Raj at Gaya from time to time. Therefore as long as the appellant was not called upon to deliver the amount in his charge he could not be held liable for embezzlement. On 12th August 1932, when the amount of Rs. 2,920 odd was found to be in his charge he was expected to produce this amount immediately and its non-production without any adequate reason shows that he had embezzled it.”
3. Thus the argument assumes that the embezzlement had been committed previously.
4. The admission moreover was not necessarily anything more than an acknowledgment of his liability to account for a particular sum of money which he had received.
5. The defence he took was that he had counter claims for a larger amount against the estate, but whether that is true or not the conviction must be set aside on the ground that there has been no proper compliance with the provisions of Section 222 of the Cr PC. I would therefore allow the application set aside the conviction and sentence and release the petitioner from his bail. The fine, if paid, will be refunded.
K.S
6. Application allowed.