Authored By : B.K. Mullick, John Bucknill
B.K. Mullick, Kt., J.
1. The petitioner has been sentenced to rigorous imprisonment for 4 years under section 408, Indian Penal Code, for having committed criminal breach of trait in respect of a earn of Rs. 1,221, which was due to his employer, Musammat Babadai, on account of rent collected from her tenants for the year 1326 Fasli. There was a second indictment under section 477A for having falsified the account-books which it was the duty of the petitioner to keep. The indictment under section 477A relates to three specific entries in the counter foil rent receipts prescribed by law for the realisation of rent from tenants.
2. It is alleged that, for the year 1326, the net sum which was realised by the petitioner was Rs. 2,522-14-7. The petitioner gave rent receipts to the tenants showing a payment of the full demand in various instalments which were set out in the rent-receipts, but in the counter-foils which were kept in the petitioner's office only some of the instalments were entered, and by adding the amounts therein shown one would be led to imagine that the petitioner actually realised and gave receipts for a earn of Rs. 1,301-11-0 only.
3. The case for the prosecution is that the petitioner has dishonestly misappropriated the balance of Rs. 1,221-3-7½.
4. In 1327 a theft occurred in the Toshakhana of the petitioner's employer. The petitioner was suspected and in the course of a search at his house and at his office a number of account-books were discovered in his possession among which were the counter-foil receipt books showing the false entries which are the subject of the charge under section 477A. The present prosecution was then begun upon the complaint of a servant of Musammat Babadai with the result that the petitioner was sent up for trial and was convicted in respect of both sets of charges by the Assistant Sessions Judge of Monghyr. There was an appeal to the Sessions Judge who confirmed the findings of the Trial Court and declined to reduce the sentence. The petitioner now moves this Court in revision and urges that the trial is bad and that the conviction should be set aside.
5. It is necessary to observe that there was another accused sent up along with the petitioner who, though found guilty by one of the Assessors was acquitted by the Trial Court. With regard to the petitioner both the Assessors, were of opinion that he was guilty of the offence under section 408, Indian Penal Code. As to the charge under section 477A, one of the Assessors was of opinion that he was guilty, while the other was of opinion that the case had not been proved.
6. The learned Vakil for the petitioner attacks the conviction mainly on the ground that there was an error of procedure. He contends that there was a fatal mis-joinder of charges and that the petitioner having been prejudiced he must either be acquitted or a re-trial ordered. He relies upon the case of Raman Behary Das v. Emperor 22 Ind. Cas. 729 : 41 C. 722 : 18 C.W.N. 8. 1152 : 15 Cr. L.J. 153 and on Kasi Viswanathan v. Emperor 30 M. 328 : 7 M.L.J. 141 : 2 M.L.T. 177 : 5 Cr. L.J. 311. It ii urged that three charges of falsification of accounts in regard to different sums upon different dates cannot, though covering a period of one year, be joined with a charge of a criminal breach of trust, because the offences are distinct and separate offences for which there must be separate trials and that neither the provisions of section 234 or 235 of the Criminal Procedure Code bring the case within the exception contemplated by section 233. Now the facts of the cases above sited were totally different and it is quite clear that in the case before us there has been no error of the procedure in Courts below. Here there was a charge of criminal breach of trust committed in the year 1326 in respect of a lump sum. By reason of the provisions of sections 234, 235 it was competent to the Court to try with this charge three charges for an offence under section 477A, Indian Penal Code, it committed within the period of one year and forming part of the same transaction as the offence under section 408. The learned Vakil contends that the acts constituting the offence under section 477A were not committed in the same transaction, but I am of a contrary opinion. There was a community of object and design between the two sets of acts and it is clear that the petitioner made the three false entries in order to assist and conceal his fraud in the matter of the embezzlement. Each of the three false entries was intimately connected with the act of criminal breach of trust and there was, in my opinion, no mis-joinder.
7. The first ground, therefore, for attacking the conviction fails.
8. The next point is, that there has been a miscarriage of justice by reason of the inferences which the learned Courts below have drawn from the evidence. It is said that the petitioner had in his possession certain Siaha or account-papers in which the various sums realised from each tenant were entered and which, if produced, would have shown that the rent receipts granted to the tenants were correct, and it is urged that the omission to enter all the instalments in the counter-fails was nothing more than an act of negligence on the petitioner's part.
9. Now in regard to these Siaha papers the learned Sessions Judge finds that there were some Siaha pap era in the petitioner's possession, but he also finds that they were never handed over to the petitioner's employer. That is a finding of fact at which the learned Judge was competent to arrive upon the evidence and it cannot he said that he has committed any error of law in believing the petitioner's employer and in disbelieving that part of the evidence which is inconsistent with her story.
10. The other finding in regard to which the learned Judge has been attacked relates to the petitioner's employer's account books, the petitioner's case is that he has wade payment to his employer fully covering the amounts which forms the subject of the charge of criminal breach of trust and that his employer has books of account which, if produced, would clearly establish his innocence. The learned Judge finds that no each account-books existed and be draws the inference that the petitioner baa in fact embezzled the money. Here, again, the inference drawn by the learned Sessions Judge is one of fact which it was competent for him to draw, and I am not able to say that there has been any error of law on his part. There is a clear finding by both Courts that there is a discrepancy of Rs. 1,221-3-7½ between the rent-receipts and their counter foils, that this sum was collected by the petitioner and that it never reached the hands of Musammat Babadai.
11. The Courts below have chosen to disbelieve the story told by the petitioner and the witness who deposed in his favour and to believe the evidence of the prosecution, and in revision we see no reason for interfering with that finding.
12. The only question that remains is, whether in law the offence of criminal breach of trust has been made out. If that offence is established it is not disputed that a conviction under section 477A must also follow, Now the learned Vakil for the petitioner maintains that, although there might be reason for proceeding in a Civil Court for a claim upon a civil liability, there is no ground for holding that there was that criminal or dishonest intention on the part of the petitioner which is necessary for an offence under the Indian Penal Code. Here, again, the question is one of fact and if we agree, as we do agree, with the findings of the Courts below there is an end to the petitioner's case.
13. Finally, there is an appeal by the learned Vakil for reduction of sentence. We think, on a consideration of the whole circumstances, that the sentence of four years' rigorous imprisonment for each offence is perhaps too severe. We reduce the sentence to one of two years rigorous imprisonment on each charge and direst the sentence to run concurrently.
John Bucknill, J.
14. His Lordship Mr. Justice Mullick has dealt with this matter very fully and it is hardly necessary for me to add anything, but I should like to say one or two words. Counsel for the petitioner raised really four points. The first was as to the propriety of the frame of the charges. I think, however, that the cases which were quoted are easily distinguishable from the present one. Here we have a general charge under section 408 of the Indian Penal Coda relating to lump sum of money embezzled and then we have three counts under one charge, under section 477A of the Code, each count referring to a particular falsification of accounts, that is to say, in this case omissions to enter accounts in books these three instances refer to part of the general embezzlement covered by the previous charge under section 408, I have never heard it argued that under the Indian Penal Code such a framing of charges is improper. On the contrary, I have of on seen charges framed like this one and I do not remember that I have ever heard an objection of this sort taken against them. The cases, on the other hand, which have been quoted, show, I think, that it is embarrassing to an accused person if several disconnected, that is to say, more than three disconnected, instances of such more or lees cognate charges as embezzlement and falsification of accounts relating to the same set of transactions are jointed in one indictment. Here, however, it is impossible to imagine how the accused could be in any way embarrassed by the form in which the charges were framed.
15. As to the second point, the questions raised were as to whether the lady has kept private books of account and as to the existence and importance of certain rough accounts kept by the applicant. As has been pointed out by Mr. Justice Mullick, those questions are merely questions of facts or of inferences drawn from facts, it may be that the Court below took a wrong view, it may be that they did not, but, at any rate, it is impossible, I think, for this Court to say that the views to which they same regarding these two points were decisions to which they could not have reasonably some upon the evidence.
16. Then, thirdly, it is contended that there was no proof that the accused has any mens rea i.e., any intention, when, if he did, be retained this money, of permanently misappropriating it or converting it to his own use. Now, there again it seems to ma quite clear that on the evidence which was before the Courts it was quite open to them to tome to the conclusion that there was proof that the accused intended to deal with the money dishonestly.
17. As to the question of sentence I agree that the sentence was too severe and should be reduced as stated by his Lordship Mr. Justice Mullick.
