Adami, J.:— The appellant Kapildeo Narain has been sentenced to four year's rigorous imprisonment and a fine of Rs. 3,000 under S. 409, I.P.C, on a charge of having, as law agent for the Madhuban Chautarwa concern, committed criminal breach of trust in respect of Rs. 7,476-2-11. He was also found guilty under S. 477-A, I.P.C, but no separate sentence was passed under that section.
2. Mr. W.W Brouoke, the proprietor of the factory, which is managed by his son Mr. J.W Broucke, appointed the appellant as law agent for the factory in respect of the conduct of certificate cases filed in the Court of the Certificate Officer, Motihari. He executed a general power-of-attorney in favour of the appellant on 15th January 1927. Under that power the appellant was authorized to file petitions necessary in the conduct of certificate cases, to withdraw or deposit moneys in the Court necessary for the conduct of cases, and also to withdraw all moneys deposited by the certificate debtors to the credit of the proprietor of the Madhuban Chautarwa concern “in accordance with written instructions from me on giving accounts.” There were no written instructions given, but, according to the prosecution evidence, it was the rule that with respect to all charges in connexion with the conduct of the cases, the appellant, was to frame an estimate and take advances from the factory. He was not to meet these charges from the moneys withdrawn from the treasury, but when the money collected from the certificate debtors had been deposited in the treasury, he was to withdraw the amounts and pay them direct to the factory. During a part of the year 1928, Mr. J.W Broucke was away and Mr. Amman was in charge as Manager. During that year the appellant drew up lists of cases in which the judgment-debt had been deposited in the treasury and withdrawn by him, and paid in money to the Madhuban concern. He also drew up estimates of charges and got advances, from the concern. The Ex. 1-B to 1-F show that the factory received from him from March 1928 to 27th January 1929, five sums namely, Rs. 184-4-0, Rs. 815, Rs. 1,900, Rs. 1,000 and Rs. 290. The Ex. 6 series show also that the appellant filed lists of cases in which he had withdrawn money from the treasury while the Ex. 8 series show that from March to August 1928, the sum of Rs. 3,443 was advanced on various dates to the appellant for the purpose of conducting the cases. In January 1929, a new form of submitting lists of withdrawals was instituted. This list was in the form of counterfoil book. On the right-hand half of the page Kapildeo wrote in his own hand a list giving the case number, the tenant's name, the village, the principal sum, interest, costs and total amount withdrawn from the-treasury: on the left-hand half of the page there were identical entries but at the heading of the page was:
“Received—being the decretal amount from Babu Kapildeo Narain of the following cases detailed below.”
3. It was also written up by Kapildeo and dated. This counterfoil book was to be brought to the factory with the money collected and when that money was found to be right, and right-hand portion was signed as a receipt by the Manager and the counterfoil book would then he returned to the appellant to form a receipt for what he had paid to the concern. On 19th January, Kapildeo brought or sent to the factory the counterfoil book with four pages filled in; the first page was for a total sum of Rs. 1,667-3-6, the second page was for for Rs. 2,626-3-3, the third was for Rs. 386-6-3 and the fourth Rs. 18-2-9. Whether Kapildeo Narain brought any money with him on that occasion is uncertain. Prom the factory cash book it appears that Rs. 290 was paid in by him on 27th January, but from the same cash book it is shown that on 22nd December 1928, Rs. 1,900 had been received from Kapildeo and on 16th January Rs. 1100. The Manager Mr. J.W Broucke signed a receipt on the first page that the total sum of Rs. 1,667-3-6 had been received; on second page, however, he gave a receipt for Rs. 2,276-12-6 only. The explanation of this, according to the prosecution seemss to be that out of the total of Rs. 4293-3-9, Rs. 3,290 was met by the payments of Rs. 1,900, 1,100 and Rs. 290 while the appellant's explanation that he had spent Rs. 654 out of the money withdrawn for the purpose of the conduct of the cases was accepted, and therefore credit was given for Rs. 3944 only out of the total of Rs. 4293: so that the amount was Rs. 349 short, and therefore on second page a receipt for Rs. 2,276-12-6 only was given. These receipts on pp. 1 and 2 were signed on 28th January 1929. It has to be remembered that the Rs. 290 is accounted for in the cash book only on 27th January 1929. The right-hand half of the counterfoils of those two first pages was torn off and according to the prosecution, were handed to the appellant. It is obvious that the proper procedure would have been that the factory should have kept the right-hand half and handed back the counterfoil book to the appellant as a receipt. The moneys in respect of pp. 3 and 4 having been paid, no receipt was signed. On 28th the appellant filed two further lists, one for Rs. 227-12-0 and the other for Rs. 53-13-9. As there was no payment made in respect of these two sums no receipt was signed and the counterfoil book was retained by the Manager. According to Mr. J.W Broucke, he asked the appellant to bring the money and furnish an account; as the appellant did not come back with any money he wrote to the Certificate Officer at Motihari, asking him to let him know how much money the appellant had withdrawn from the treasury within the year. The reply of the certificate officer was to the effect that between 7th November 1927 and 24th January 1929, the total withdrawal had been Rs. 13,759-1-11. Mr. Broucke continued to ask for accounts. It seams that the appellant stated that he had spent part of the money withdrawn from the treasury in meeting the charges for the conduct of the certificate cases. Mr. Broucke then asked a Mokhtear, Bibu Balbhadar Prasad, to make inquiries as to the amount actually spent by the appellant on, the conduct of cases. Babu Bal-Bhadar Prasad replied on 27th March 1929 that he had found that Rs. 1,999-8-0 had been, spent by the appellant but he had not completed the full inquiry and there were 72 cases still to be inquired into. Letters were passing between the Manager and the appellant with regard to accounts but the appellant, though asked to come to the factory to see the accounts books as he desired, refused to come and then Mr. Broucke laid a complaint on 11th April. In that complaint he accused the appellant of having misappropriated Rs. 12,222-11-11 between 3rd February 1928 and 24th January 1929. The Committing Magistrate drew up a charge with respect to the sum of Rs. 12,317-9-11, but the learned Sessions Judge amended it, reducing the sum to Rs. 7,476-2-11. According to the prosecution, between 3rd February 1928 and 24th January 1929, Rs. 13,109-7-5 were withdrawn from the treasury by the appellant and during the year from 3rd February 1928 the appellant paid in to the factory altogether Rs. 5,079-4-6 Adding to this the sum of Rs. 654 which the appellant was authorized to spend out of the money withdrawn on the conduct of cases, the total money received by him came to Rs. 5,73-3-4-6, and, therefore, the amount defalcated was Rs. 7,376-2-11. The charge as pointed out by the learned Sessions Judge is wrong in mentioning the amount of Rs. 7,476-2-11.
4. The case of the appellant was to the effect that he could account for the money and that he had full freedom to pay the law charges out of the moneys withdrawn, there being no written instructions to prevent him doing so. It is his case that he had in fact paid to the factory the whole of Rs. 4,976-9-9 as shown in the list Ex. 5 and that the rest of the amount forming the subject of the charge was covered by the law charges.
5. The case has been a very difficult one to decide by reason of the fact that the evidence is not full and there are certain account books which were kept in the factory which have not been produced and which are necessary for ascertaining several points. It is not possible to determine whether the appellant came to the factory with his lists on 19th January, or whether he sent them. The receipts were given on 28th and we are not told definitely whether the appellant came to the factory that day. But Mr. Broucke says that he asked him to give an account. We have had to dapead on explanations from learned counsel in order to understand the case, and I must say that, even with those explanations, it is somewhat difficult to determine whether the accused had in fact expended the money on law charges or any part of it, and to come to any definite decision as to the amount which he failed to pay the factory. It appears from the evidence that, during the year 1928, the appellant was submitting lists and was paying amounts into the factory. It is clear that he was not required to submit accounts at regular intervals. It is not quite clear to whom he paid the money; we are not told whether on 27th January the Rs. 290 was paid into the Manager's hand. Prom the evidence of Mr. Broucke it would appear that Rs. 3,290 out of the sums covered by the first two lists were paid by the accused that day but we know that amount had been made up of sums paid on 22nd December 1928 and on 16th and 27th January 1929. The prosecution in reckoning the amount of advances made to the appellant for law charges includes Rs. 1,543 which was advanced in 1927 before the period covered by the case. There is no certainty when the alleged intention to misappropriate the money first arose. The charge relates to a period ending on 24th January 1929.
6. On 19th January the appellant had filed in the factory, lists, acknowledging that he had withdrawn sums from the Treasury and held them in his hands and on 27th January he actually paid in Rs. 293. In my opinion the case is one which should in the first place have been brought in the civil Court. The factory wanted accounts and there had been no adjustment between the parties. The proper procedure would have been to institute a suit for accounts in the civil Court.
7. The head-clerk of the factory kept a register of certificate cases, all the entries being filled in by him except Col. 2 in which the appellant was to enter the number of the case in red with his own hand; the tenant's name, the serial number of the entry, the amount demanded, and the result were entered in this register by the head clerk. The cases covered by the lists are entered in that register and in the remarks column against each entry there is the initial of Mr. Broucke. Mr. Broucke says that he signed his initials when the cash had been received by the concern. On the face of it the presence of the initial of Mr. Brouoke according to his evidence, would show that the appellant had in fact paid the money to the factory. It is explained that Mr. Broucke initialled the entries in order to show the patwaris that they should take no further steps against the tenant to whom the entry related but there is no evidence to this effect. I cannot see that it was necessary to have Mr. Broucke's initial in the remarks column to give this information to the patwaris and I doubt whether the patwaris would be able to read the entries in the register.
8. The appellant's case is that he had paid sums to the head-clerk or to cashier. The cashier admits that he kept his private book of receipts and disbursements and the head-clerk deposes that the cashier keeps notes. The Cashier's note book has not been produced, and we have before us no account book which was kept up from day to day. The entries in the cash book would show that they were made from time to time and must have been based on some daily ledger.
9. On the materials before us, meagre as they are, I should hesitate to say that the appellant was proved to have had the intention of misappropriating the money. The case is of a nature more suitable for its determination in a civil Court. It is really a case for a suit for accounts. The appellant produced his lists and admitted the withdrawal of the money. Mr. Broucke wanted accounts but the appellant delayed or refused to give them. A suit in a civil Court for accounts was far more appropriate than a criminal prosecution. It may well be that the appellant had been spending the money with drawn by him in meeting the charges. There is no doubt that he was recalcitrant and there is good ground for suspicion that he was not altogether honest. With regard to the charge under S. 477-A, it is alleged that in several instances he entered in Col. 2 of Register 12 the number of a certificate case in order to give the impression that he had filed it, though as a matter of fact he had not filed it, his object being either to hide his negligence or to draw more pay, as he was entitled to draw Re. ⅛ for each case. Admittedly it is uncertain whether the numbers he wrote in that column were the numbers of the case or the numbers given by the factory to the requisition. It is difficult to understand how he could profit by entering a case as filed which had nob been filed, seeing that he would eventually have to show that he had withdrawn the money and must pay it to the factory. He has been found to have made entries in the papers to the effect that in certain certificate cases the decretal amount was still in Court whereas, as a matter of fact, the money had been withdrawn from the treasury by him. He explains these entries by saying that he may have made a mistake owing to lack of memory or the fact that he was away from Motihari when he made the entries.
10. As I have said the conduct of the appellant has not been about suspicion, but I do not think that we have sufficient material before us to come to a definite conclusion that he misappropriated the money or what the exact sum of money misappropriated was.
11. Under the circumstances I think that this appeal should be allowed and that the complainant in the case should be left to bring a suit in the civil Court for accounts. I would allow the appeal and set aside the convictions and sentence.
Fazl Ali, J.:— I agree.
V.S/R.K
12. Appeal allowed.