M.M. Gupta, J.

1. These appeals have been preferred by the State against the acquittal of Respondent Hazari Lal Gupta for offences Under Section 409 IPC. Since the evidence was recorded in respect of the trials in the same trial and they have been disposed of by the consent of the parties by the same judgment the appeals have been heard together.

2. Bhadohi town in Varanasi district manufactures woolen carpets and these carpets are also exported to foreign countries. Firm Messrs Narottam Das and Sons whose proprietor is Bechu Lal, Firm Babu Nandan Rameshwar Prasad of which the proprietor is Rameshwar Prasad, Firm Mehi Lal and Co. of which the proprietor is Triloki Nath and Firm Domestic Carpet Co. of which Raghunath Prasad is the partner and Firm B.S. Carpet Co. of which he is the Manager, deal in woolen carpets at Bhadohi.

3. Respondent Hazari Lal Gupta is the wife brother of Mohan Lal Gupta, brother of Bechu Lal proprietor Firm Narottam Das and Sons. In 1952 Respondent came to Bhadohi and represented to these firms that he had a long experience of business in foreign countries and if aforementioned firms were willing to export their woolen carpets to him he would sell them in London on commission basis. On the sales of the carpets he would receive 5 percent commission and send back the sale proceeds to them. He was, therefore, to work as the agent of these firms. After these agreements were entered into the Respondent started business under the Firm styled as H. Gupta (London) Ltd. and under the style "Oriental Wool Carpet Ltd." in London. In pursuance of these agreements the aforementioned dealers exported woolen carpets to the Respondent. The invoices and Bills of Landing were sent through the Banks. The Respondent received the woolen carpets and some times also made part payments but substantial amounts were not sent by him. In 1965 the Respondent came to India. The proprietors of the aforementioned Firms pressed on him to clear the accounts by making payments or to send back the goods to them. The Respondent, however, evaded any direct reply. Bechu Lal him-self went to London in 1969. He came to know that the entire carpets were sold but the Respondent was evading making payments to the aforementioned firms. In 1970 the Respondent again came to India to visit his sister in Bhadohi when the proprietors of the aforementioned firms pressed on him to clear the accounts. It appeared to them that the Respondent had committed criminal breach of trust in respect of the amount that were due to them. They, therefore, lodged reports mentioning the facts at Police Station Bhadohi on 30-6-1970 and 4-7-1970. It was also mentioned in these reports that the Respondent was in India and he had already obtained passport leaving for England and unless he was put under arrest be may be beyond the reach of law in India.

4. It was claimed that the Respondent had committed criminal breach of trust in respect of 504 and (six) Domestic Carpet Co. and 850, due to B.S. Carpet Co.; 10490 due to firm Mihi Lal and Sons; a sum of Rs. 2,07,000.00 due to firm Narottam Das and sons and 1,495 due to firm Babu Nandan Rameshwar Prasad.

5. Investigation of the case was entrusted to Sri P.P. Misra, Inspector. CID, U.P. under the orders of the S.P., E.C.I. (CID) after it was investigated in the initial stage by the local Police. The Respondent was arrested. In the course of the investigation he recorded statements of Raghunath, Prasad, Rameshwar Prasad, Bechu Lal and Triloki Nath and other witnesses. He also sent papers for the sanction of the prosecution of the Respondent by the High Commissioner/Political Agent. He had ultimately obtained their sanctions. The cases were instituted after the sanction of the Political Agent and High Commissioner for India was obtained.

6. The Respondent in the course of his statement Under Section 313 Code of Criminal Procedure admitted the agreements by the aforementioned firms for export of woolen carpets from Bhadohi to his firms in London. He had also admitted that it was agreed that he would receive 5 percent commission on the sale. He also admitted that he had opened a firm in the style H. Gupta (London) Ltd. He had also stated that the aforementioned firms sent carpets to him but he was unable to give the exact price without seeing the exact account. He further stated that some of the goods were sold and that the sale money of the goods that were sold by him was sent by him. He admitted having sent Ex. Ka-98 and Ka-91 and Exs. Ka-21 to Ka-29 to Messrs Narottam Das and Sons. He claimed that in respect of unsold articles he had come to India to take money from the exporters for arranging of sending goods back to India but since he was put under arrest he could not carry it out. He further denied the sale of the goods at the time of the visit of Bechu Lal to England.

7. The prosecution examined Raghunath Prasad PW 1, Rameshwar Prasad PW 2, Triloki Nath PW 6 and Bechu Lal PW 7. PW 3 P.K. Chaturvedi is the Manager of the United Commercial Bank, PW 4 Venkatachalam is the Officer of the Bank of India and PW 5 J.R. Bhardwaj is the Manager of the Benaras State Bank. The invoices and the bill of landing were sent through these Banks to the Respondent. PW 8 is the Agent of the State Bank of India, Varanasi Cantt. PW 9 P.P. Misra is the Investigating Officer. The Respondent did not examine any witness in his defense.

8. The case was duly committed to the Court of Session but it was sent back to the Chief Judicial Magistrate, Varanasi as the case was tribal by the Chief Judicial Magistrate.

9. The learned Chief Judicial Magistrate held that while granting sanction the Political Agent/High Commissioner for India did not apply his mind by perusing certain documents relating to the transaction between the parties and it was also held that the sanction could not be valid in respect of five cases instituted after the coming into force of the new Code of Criminal Procedure 1973 as under the new law sanction of the Central Government and not of the Political Agent/High Commissioner for India was required for the prosecution of the Respondent who was a citizen of India for committing offences outside India. It was further held by the learned Judical Magistrate that the prosecution had not been able to prove beyond all reasonable doubt that the Respondent had dishonestly misappropriated and converted the goods for his own use or dishonestly used or disposed them of. He also held that it was a case of civil liability and not of criminal liability; charges were also held to be defective and prejudicial to the Respondent. The Respondent was accordingly acquitted.

10. The learned Counsel for the State has assailed the findings of the learned Chief Judicial Magistrate and has contended that the sanction granted by the Political Agent/High Commissioner was valid sanction and even if it was invalid no sanction was required. He has further contended that the charges were not defective so as to cause prejudice to the Respondent and even if there was any irregularity in the charges it was curable. It was further claimed that the findings of the learned Chief Judicial Magistrate that no offence of criminal breach of trust was made out and that there was only civil liability are erroneous and perverse in the circumstances of the case.

11. It is quite unnecessary to consider the effect of sanction accorded by the Political Agent/High Commissioner for granting the sanction of the prosecution of the Respondent. However, the detailed order according sanction as detailed in the judgment of the court below clearly and unequivocally shows that the Political Agent/High Commissioner had the facts of the case before him and after perusing and appreciating them he accorded the sanction. There is no evidence to show that no documents in connection with these cases were placed before him. The Respondent was an Indian citizen doing business in England and as such he was the proper authority to accord sanction for the prosecution of the Respondent Under Section 409 IPC. The fact that he mentioned the total amount it cannot be said to be vague. In fact, it was difficult for him to have got calculated before him the actual figures. The figures were not material. He had only to be satisfied that prima facie offence Under Section 409 IPC was made out on the facts of the cases. The sanction accorded by the Political Agent/High Commissioner in such circumstances, therefore, cannot be held to be invalid. Moreover, in a case like the present one the grant of sanction for prosecution of the Respondent Under Section 409 IPC by the Political Agent/High Commissioner was unnecessary. Section 181(4) under the Old Code as well as the new Code of Criminal Procedure runs as follows:

181(4). Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.

12. What happened in the instant case was that the Respondent had agreed to become an agent on commission basis of the principals who lived in Bhadohi in Varanasi district. The sale proceeds after accounting for the 5% commission over the sales were to be remitted to his principals at Bhadohi. It is obvious that the sale proceeds were to be sent and accounted for at Bhadohi. In a case like the present one Section 181(4) Code of Criminal Procedure would come into play and the Court which had jurisdiction to try the cases of Bhadohi would have jurisdiction to try the cases and the sanction for prosecution of the Respondent by the Political Agent/High Commissioner was unnecessary. The fact that the Respondent had his business in England would not make any difference.

13. The next question that arises for determination is whether the charges were defective and that caused such prejudice to the Respondent as to vitiate the trials the learned Chief Judicial Magistrate has held that these charges were vague in respect of the amounts and periods and as such the Respondent could not be convicted on such charges.

14. The charges as they stood in these cases were for the period for 17-9-1964 to 19-7-1965 in respect of criminal breach of trust for a sum of 14,284-6dl. relating to the amount due to the Firm of Messrs Mihi Lal and Co. whose proprietor was Triloki Nath. There were three different; charges for the period 7-7-1963 to 4-7-1964 in respect of a sum of 6,802-13-d-10; for the period between 16-7-1964 and 12-4-1965 for 2,930 S 2-d I and for the period on or about 12th October 1965 in respect of a sum of 551-S 14-d 4 in respect of Messrs Narottam Das and Sons whose proprietor was Bechu Lal and 504-d 1 in respect of Domestic Carpet Company whose proprietor was Raghunandan Prasad and for the period between November 1964 and March 1965 in respect of a sum of 1,496 due to Firm Babunandan Rameshwar Prasad whose proprietor was Rameshwar Prasad. So far as this case is concerned, the Respondent has not disputed the fact that he had received the carpets in question. They were to be sold by him and after deducting his commission he was to remit the amount to his principals. The entrustment is, therefore, more or less admitted. The period during which these carpets were supplied and the period from which he did not send the account or amount is also not in dispute. It may be that there may be some differences in the amount stated but that by itself would not vitiate the charge. The Respondent, in my opinion could not be in any doubt about the natures of the charge that he was supposed to answer. There is no vagueness in the charge and there could not be any prejudice to him. All the charges relate to the entrustment in the periods within a year. Thus there was no vagueness in the charge. In the circumstances of the case it was as clear as daylight to him what he was supposed to meet in respect of the charges that were framed against him. In Willie (William) Slaney v. State of Madhya Pradesh : AIR 1956 SC 116 [LQ/SC/1955/93] : 1956 AWR 38 (Supplement) a Five Judges Bench of the Supreme Court observed as follows:

Code is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to...of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.

It was further observed "Now there is no doubt that a charge forms the foundation of a Sessions trial and is a most important step in it. The accused must know and understand that he is being tried for and must be told in clear and unambiguous terms: Section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial. But, there is, in our opinion equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in a number of sections.

15. Thus, I do not think that there has been any prejudice to the accused which had resulted in the failure of justice. The learned Chief Judicial Magistrate was, therefore, wholly in error in holding that the charges were vague and had greatly prejudiced the Respondent.

16. It is not disputed in this case that the Respondent had started functioning as an agent. After he had assured the aforementioned firms that if they exported their carpets to England he would sell them and out of the sale proceeds after deducting the commission he would remit to them the balance of the amounts. Thus, there is no doubt about the fact and the Respondent had also admitted that woolen carpets by the aforementioned firms were dispatched to him, It is also not disputed that the sale proceeds is respect of a large number of carpets were not received by the aforementioned firms. It is no doubt true that in some cases part payments were made but by and large substantial amounts remained unmerited and even in respect of unmerited amounts the carpet were not returned. The contention of the learned Counsel for the Respondent is that it was a case of pure civil liability for which the aforementioned carpet firms could bring a suit for rendition of accounts and realise those sums or they could sue for the return of the carpets; but, there would be no criminal breach of trust as defined in Section 405 of the Indian Penal Code. Section 405 IPC runs as follows:

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust.

17. The learned Counsel for the Respondent has contended that before a person can be convicted for criminal breach of trust the prosecution has to establish that he had dishonestly misappropriated or had dishonestly converted to his own use that property or had dishonestly used or had disposed of that property in violation of any direction of the law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust. It is contended that in the absence of dishonest intention the Respondent could not be convicted. It would be worthwhile to notice the law as propounded by the Supreme Court in various cases.

18. In Krishna Kumar v. Union of India : AIR 1959 SC 1390 [LQ/SC/1959/138] the Supreme Court observed as follows:

Is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss that the facts being within the servants knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defenses or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them, of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence.

19. In Madan Lal v. The State of Punjab AIR 1967 SC 1950 it was held that if the said moneys were admittedly received by the Appellant, the burden of proof was upon him to show what he had done with the moneys. The Appellant failed to discharge the burden and he could, therefore, conveniently be convicted Under Section 409 IPC.

20. In Jaikrishnadas Manohardas Desai v. State of Bombay : AIR 1960 SC 889 [LQ/SC/1960/79] it was held thus "to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion. The conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over Which he had dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.

21. Raghunath Prasad PW 1 is the proprietor of the Domestic Carpet Company, Bhadohi. He claims that his firm deals in export of carpets from India. The mode of business with foreign countries is that after the invoice of the goods and bill of landing and other documents are ready they are sent to the Bankers. His Bankers are Benaras State Bank, Bhadohi. The goods are sent to the Shipping agents at the ports. The documents are sent to the Bankers is the importing countries. Payments of the consignments are made through those Bankers by the importers after accounting for their commission. The goods were delivered to the importers who were their agents. The payments were to be made at a later date. This was the mode of business which was agreed upon between him and the Respondent. The Respondent is a relation of the proprietor of one of these firms. The Respondent had approached the witness in January 1962 and had told the witness that he had a good deal of experience of business in capitals of foreign countries like Bangkok, Hongkong and London. He had told him that the witness may export the carpets to him on commission basis. After selling the goods he would account for the sale of the goods after accounting for his commission at the rate of 5% on the sale proceeds. A similar contract of sale through the Respondents agency was entered between the other firms of Bhadohi, namely Messrs Mihi Lal and Company of which Triloki Nath PW 6 is the proprietor; Firm Babu Nandan Rameshwar Prasad of which Rameshwar Prasad PW 2 is the proprietor; and Firm Narrottam Das and Sons of which Bechu Lal PW 7 is the proprietor. It was in pursuance of such agreements that the woollen carpets were exported to the Respondents firm which functioned under the style H. Gupta (London) Ltd. and Messrs Oriental Wool Craft Ltd. Raghunath Prasad states that, to begin with, the sale proceeds were sent by the Respondent in some cases in the beginning but later on he stopped sending any payments. He has proved the invoices and bills of landing, insurance papers and other connected papers which were handed over to the Banker. He has also proved the Hundis Exs. Ka-6 and Ka-7. On the back of Ex. Ka-6 there is the signature of the Respondent of the receipt of the goods. The Hundi was received by the Respondent on 18-10-1965. He did not receive any account of sales in that connection nor he received any payment inspire of repeated letters. He did not respond. In 1965 the Respondent came to Bhadohi to Bechu Lal when the money was demanded from him and he had told the witness that the Respondent would make the entire payment on reaching England. The Respondent went back to England but he did not make any payment. In 1969 Bechu Lal PW 7 went to England and made enquiries from the Respondent. He returned from there and reported to the exporters that the entire goods received by the Respondent were sold but the Respondent was not prepared to make any payment. In 1970 the Respondent had again come to Bhadohi. The exporters demanded their dues from him but the Respondent refused to make any payment.

22. Sri J.R. Bhardwaj PW 5 was the Manager of the Benaras State Bank Ltd. Bhadohi. He has stated that he was a Banker of Messrs Narottam Das and Company and the Firm Domestic Carpet Company Bhadohi. They had their accounts in the Bank. He had brought with him the Foreign Bill Book and other correspondence relating to these firms. He has stated that under invoice No. 100/65 the goods valued at 504 were sent to the Respondent. No payment of this consignment was received. Ex. Ka-44 is the document which was signed by him.

23. PW 2 Rameshwar Prasad, who is the proprietor of Firm Babunandan Rameshwar Prasad, also states that in 1962 the Respondent had come to his firm with Bechu Lal Gupta. He had also told him that he would start a firm in London and would deal with the sale of carpets exported from Bhadohi. He would receive his commission and make payment of the sale proceeds. The commission settled was at the rate of 5% on the sales. He had sent six consignments. The documents relating to those consignments are Exs. Ka-11 to Ka-16. Exs. Ka-11 and Ka-12 are signed by the Respondent and Ex. Ka-17 is the covering letter. These documents were sent through the United Commercial Bank, Bhadohi and the payment was also to be made through the same Bank. The Respondent made payments of three consignments. He did not make any payment of the consignments sent through invoice Nos. 78, 79 and 82. Out of the amount due on these invoices excepting 192-1s 3d on invoice No. 78 other payment has been made. Sri P.K. Chaturvedi PW 3 is the Manager of the United Commercial Bank, Bhadohi. He has stated that in 1965 under invoice Ex. Ka-18, Ex. Ka-22 and Ex. Ka-23 woolen carpets were sent to the Respondent through his Bank. The entries were made in the Foreign Bill Collection Register. According to these documents invoice No. 78 was of the value 354-13s-1d. Out of this invoice payment was received 192-1s-3d but in respect of invoices Nos. 79 and 82 which were of the value 473-19s-4d and 859-6s-1d respectively no payments were received.

24. P.W. 6 Triloki Nath Gupta is the proprietor of the firm Mihi Lal and Co., Bhadohi. He states that the United Commerical Bank, Bhadohi were his bankers. The invoices, the bill of landing and other documents in respect of the goods that were sent to the ports were sent through the bank. The sister of the Respondent is married to his cousin Mohan Lal. In 1962 the Respondent had come and entered into an agreement for export of woollen carpets from India to London where he would sell them and submit accounts and make payments after receiving 5% commission. Under invoices No. 50 Ex. Ka. 45, No. 57 Ex. Ka. 47 No. 52 Ex. Ka-49; invoice No. MJ-1 Ex. Ka-61, MG-9 Ex. Ka-53; invoice HG 6 Ex. Ka-55 and HG-2 Ex. Ka-57 and their connected documents including the Bill of Landing were sent to the Respondent through Mayor and Johnson. The receipts of these documents were also given by the Respondent. Sri P.K. Chaturvedi P.W. 3 has stated that Mihi Lal and Co. had sent goods to the Respondent under invoices No. MG 9 Ex. Ka-53, HG 2 Ex. Ka-57, invoice No. 52 and 50 whose respective values were 1824-3s-3d, 560-6s-2d, 658-13s-5d, 951-l7s-5d, 888-7s-9d and . 1,030-14s-3d. No payments on these invoices were made. No payment of invoice No. MJ 1 valued at 984-4s was made. He has further stated that Mihi Lal and Co. also sent goods under invoices Nos. 47, 48, 61, 62 HG 4 and MG 1 to the Respondent through his Bank. Their value was respectively 680-3s-2d, 1596 6s-10d, 334, 1,049-1s-3d, 136-5s-6d and 18,504-1s-3d. Part payments of these consignments were made but the balances were not paid.

25. Bechu Lal P.W. 7 claims that he is also one of the exporters of woolen carpets in Bhadohi. The Respondent is his brother Mohan Lals brother-in-law. According to him, the procedure for exporting goods to the foreign countries was as stated by the other witnesses. He states that in 1962 the Respondent had come to Bhadohi. He told him that the Respondent wanted to go to London and he wanted to carry on the sale of woolen carpets. He, therefore, wanted the Bhadohi woollen carpet dealers to export the carpets to him in London on 5% commission basis and he would render accounts and would make payments at Bhadohi after accounting for 5% commission. Besides him the other firms Mihi Lal and Co. Babu Nandan Rameshwar Prasad and Domestic Carpet Co. had entered into similar agreements with the Respondent. The Respondent started business under the style H. Gupta (London) Ltd. He started to consign goods as agreed to the Respondents firm in London. He has proved the invoices which show that under invoice No. 507 Ex. Ka-74, invoice No. 498 Ex. Ka-75 No. 499 Ex. Ka-76, No. 503 Ex. Ka-79, No. 508 Ex. Ka-80, No. 509 Ex. Ka 81, No. 524 Ex. Ka-91 and No. 492 Ex. Ka-94 valued at respectively 2,552-19s-2d, 374-11s-6d, 626-7s-9d, 256-6s-11d, 336-16s-2d, 362-18s-11d, 551-14s-4d and 430-4s-6d carpets were exported. In respect of these consignments no payment was received. Goods were also sent through invoices Nos. 418 Ex. Ka-73, No. 500 Ex. Ka-77, No. 501 Ex. Ka-78, No. 515 Ex. Ka-82, No. 519 Ex. Ka-83, No. 539 Ex. Ka-84, No. 541 Ex. Ka-85, No. 543 Ex. Ka-86, No. 547 Ex. Ka-87, No. 550 Ex. Ka-88, No. 553 Ex. Ka-89, No. 554 Ex. Ka-90, No. 493 Ex. Ka-92, No. 486 Ex. Ka-93, No. 487 Ex. Ka-93-A, No. 460 Ex. Ka-95, No. 461 Ex. Ka-95-A, No. 455 Ex. Ka-96 and invoice No. 470 Ex. Ka-97. On these invoices part payments were made. The Bank of India, Varanasi were the Bankers of Narottam Das and Sons of which Bechu Lal PW 7 is the proprietor. Sri Venkatachalm PW 4 is the Manager of the Bank of India, Varanasi. He has produced Bank Accounts and has proved the documents containing the consignments sent by Narottam Das and Sons, Bhadohi. Sri Venkatachalam also proved the payments received in respect of the various consignments and also payments not received in respect of the consignments.

26. The Respondent has admitted the agreements with the aforementioned four firms of export of goods to him for sale in London on 5% commission basis. It was also put to him that in 1962 and 1965 all the firms had sent him in London woolen carpets worth Rs. 4,47,000-00. He admitted the receipt of the woolen carpets but he stated that he was not in a position to give the exact value of those-carpets without seeing the accounts. The above evidence coupled with the admission of the Respondent clearly go to show that he was functioning in England, as the agent of the aforementioned firms for the sale of woolen carpets and he received goods. It is, therefore, evident that he was the trustee of the woolen carpets exported to him. This establishes the entrustment of the woolen carpets to the Respondent.

27. We have now to see whether in respect of the woolen carpets entrusted to the Respondent in his capacity as an agent of the complainants criminal breach of trust was committed or not. It is difficult for the prosecution to give any direct evidence of committing of the criminal breach of trust by the accused. The maimed in which the goods or the money are appropriated are generally within the special knowledge of the accused and it is for him to establish how he has dealt with the goods or the money which he was holding in trust on behalf of the principals. The prosecution can only rely on various circumstances from which an inference can be drawn about the dishonest intention on the part of the accused in dealing with the goods or money held in trust by the accused.

28. We have now to see what are those circumstances which have a direct bearing on the induct of the Respondent in showing his dishonest intention in dealing with the goods and whether an inference can be drawn that he committed criminal breach of trust in respect thereof.

29. In the letter Ex. Ka-98 dated 22nd August 1968 the Respondent enclosed his sales account of all invoices from Narottam Das and Sons which were pending with him. This letter was addressed to Narottam Das and Sons. In this letter it was mentioned that a sum of 1,645-2s-9d was due to him. Sales accounts furnished by him in this letter are Exs. Ka-98/1 to Ex. Ka 98/29. In those accounts it is shown that he had remitted complete sale proceeds of invoices Nos. 507 Ex. Ka. 74, invoice No. 498 Ex. Ka-75, invoice No. 499 Ex. Ka-76, invoice No. 503 Ex. Ka-79, invoice 508 Ex. Ka-80, invoice No. 509 Ex. Ka-81, invoice No. 524 Ex. Ka-91 and invoice No. 492 Ex. Ka-94. As already stated above Bechu Lal PW 7, proprietor of Firm Narottam Das and Sons has stated on oath in respect of these invoices that he had not received any payments of sale proceeds. Sri J.R. Bhardwaj PW 5 who was the Manager of the Benaras State Bank Ltd. has stated that in respect of the aforementioned invoices no payments due under these invoices were received. Similarly, the Respondent sent letter dated 9th December 1965 to Babunandan Rameshwar Prasad. Enclosed with this letter were sales accounts of invoice No. 81. It was mentioned therein that the money was being remitted through United Commercial Bank Ltd. Bank Accounts proved by Sri P.K. Chaturvedi PW 3, Manager of the United Commercial Bank Ltd. show that on invoice No. 81 on which payment should have been made of 834-2s 6d only 504-2s-3d has been paid. This also shows that the Respondent has been giving false accounts to his principals.

30. The Respondent has been asserting that the consignments in respect of which he has not made payments remained unsold. The complainants, however, have been pressing on him to clear accounts and make payments. In none of his letters he ever mentioned the fact that any consignment remained unsold or that he wanted the principals to make arrangement for shipment of the goods back to India. PW 7 Bechu Lal claimed that he himself visited the Respondent in England in the year 1969. His statement runs as follows:

Phir San 1969 Ke July Mahina Me Landon Gaya Tha Aur Vahan Muljim Se Apna vaur Companiyon Ka Jiske Ajent Ban Kar Hazari Lal Gupta London Gaya The Paisa Manga. Maine Muljim Se Kaha Tha Ki Ya To Paisa Bhej Dijiye Ya Mal Lauta Dijiye Kyonki Account Sale Ke Mutabik Mera Sab Mal Bik Chuka Tha Isliye Maine Mihi Lal Adi Digar Farmon Ke Mal Ke Bare Men Kaha Tha Ki Agar Mal Na Bika Ho To Mujhe Bataiye Mai Bech Dunga. Muljim Ne Javab Diya Ki Sab Mal Bik Chuka Hai Laken Main Is Samaya Pareshani Men Hun Kyonki Maine Makan Va Godown Le Liya Hai Aur Iske Alava Kam Bhi Bahut Barha Liya Hai Isliye Paisa Nahin Bacha Hai.

He has further stated that the Respondent had promised to pay the entire dues of the firms within two months So far as the statement of the Respondent about the non-sale of the goods is concerned, is falsified by the statement of Bechu Lal PW 7 which I have quoted above. The statement of Bechu Lal PW 7 on this point has not been challenged on behalf of the Respondent in cross-examination. It is, therefore, obvious that the Respondent had made false statement about the fact that large consignments of carpets remained unsold.

Under letter dated 18th May 1968 Ex. Ka-64 addressed to Babunandan Rameshwar Prasad the Respondent wrote that he was (sic) his collection and no sooner that is made he shall remit the money. It was also mentioned that the sales account were under preparation. The Respondent also sent to Firm Babunandan Rameshwar Prasad the letter Ex. Ka-35 dated 24th May 1969. In this letter it is mentioned that the Respondent had decided to finalize all the accounts and settle them at the earliest He required the firm to send him copies of all the invoices of which the accounts were not sent by the Respondent. It is surprising that as late as in 1968 the Respondent was asking for the copies of the invoices which in natural course he must have received. The fact mentioned in the letter that he was not in a position to prepare the final accounts, is a false statement. All the papers were sent to him through the Bank including the invoices. So the question of sending copies of invoices did not arise. It seems to be a pretext to avoid furnishing of accounts. Trilokinath Gupta PW 6 wrote the letter Ex. Ka 67 on 15th March 1966 to the Respondent. In this letter it was clearly mentioned that if the Respondent felt any difficulty they may be informed so that other sources may be tackled. In reply to these letters vide Ex. Ka-68 dated 14th April 1966 the Respondent mentioned that five bales under invoice No. M.J. 1 remained unsold and five bales under invoice No. H.G. 4 also remained unsold. This clearly implied that the rest of the consignments received by him were sold off although this specifically has not been mentioned. All the complainants have asserted that they had informed the Respondent to submit the sale proceeds but the Respondent failed to do so. The aforementioned evidence therefore, establishes that the Respondent had failed to furnish the accounts.

31. It may also be mentioned here that Ex. Ka-6 is the Hundi which was sent to the Respondent. Its acceptance is noted on its back and is Ex. Ka-6 which has been endorsed and signed by the Respondent. The endorsement is as below:

Accepted payable at National Provincial Bank Ltd. Southgate Branch 120 days after sight dated 18th October 1965.

After this endorsement was made the goods dispatched by the Domestic Carpet Co. were delivered to the Respondent. In spite of this promise to pay within 120 days this amount was not remitted. It was, therefore, a case of false promise.

32. The prosecution evidence, in my opinion, establishes beyond all reasonable doubt that the carpets by the aforementioned firms were exported from India and were received by the Respondent. The invoices and other documents in respect of the carpets exported by the above firms have been proved in this case. It has also been established that the Respondent functioned as an agent on behalf of the firms aforementioned. To furnish accounts after accounting for the commission that was due to the Respondent in respect of a large number of consignments the Respondent failed to furnish accounts and in respect of some of those consignments he made only part payments. Thus, there was failure to furnish the accounts on the part of the Respondent. He also submitted false explanations and also false accounts. His claim that a large number of consignments remained unsold is belied by the evidence on the record. He has not been able to discharge the burden that rested on him to show how he had dealt with these consignments. This was a matter which was specially within his knowledge and he could only furnish the explanation for them.

33. The learned Counsel for the Respondent has contended that it was a case of outright civil liability. The question of criminal prosecution, therefore, could not arise and the remedy of the complainants was by way of civil suit for breach of contract or for rendering of accounts and not by way of prosecution in a criminal court. Indar Singh v. Emperor : AIR 1926 All 302 [LQ/AllHC/1925/233] was a case of failure to deliver the cattle by the receiver. The terms of Supurdiginama was that on failure to deliver the cattle when he is called upon to do so, the receiver would pay the price Rs. 950/-. On failure of the receiver to deliver the cattle he was prosecuted for criminal misappropriation. It was argued on behalf of the receiver that when it was clearly stipulated that in case of failure to deliver the cattle he would be liable to pay the price, the liability was only a civil liability. It was held that the mere fact that there is a civil liability does not necessarily absolve one from criminal liability. When receiver attaches property and entrusts it to some person he does not purport to sell it to him or dispose of it at that time. The receiver may not even be in a position to know its true value. The intention of the parties is that the articles should be returned in specie or produced at the time when the auction sale is to take place. The covenant that the accused would be liable to pay a certain amount is more by way of security than because the property is transferred to him with liberty to dispose of it or withhold it. In such cases it is the true intention of the parties which must be taken into account. There can be no doubt that in this case it could never have been the intention of the Receiver that the property attached not be actually produced when the auction is to take place. If such property is not produced the insolvent as well as the creditors may suffer; for it cannot be known beforehand what actual price would be fetched at the sale.

34. There can be no doubt that both civil and criminal liability can exist simultaneously.

35. It has been observed by the court below that the Respondent had made part payments in respect of a number of invoices and the non-payment of rest of the invoices should be treated as bonfire and dishonest intention should not be imputed to the Respondent and for this reason there should be no criminal liability and there could only be civil liability in all cases of embezzlements where substantial sums are involved it would be a rare case where there would be embezzlement of the entire sum. In a large number of transactions where criminal breach of trust is committed some payments would be made and large payments would be withheld or some payments may be made in the beginning and rest of the payments may be withheld or the payments of the smaller amounts may be made in the course of the business transactions. But that by itself would not mean that there would be no criminal liability if dishonest intention to commit criminal breach of trust in respect of substantial amounts is found.

36. It has further been contented on behalf of the Respondent that in order to find out whether there was criminal misappropriation or the criminal breach of trust in respect of the amounts or not the investigating officer should have visited England and should have investigated the matter by making enquiries from various persons to whom the Respondent might have sold the woolen carpets. He could have reached the proper conclusions if the woolen carpets or their sale proceeds were misappropriated. I have not been able to appreciate what would have been gained further if the investigating officer had gone to further investigate to the United Kingdom. There were no means by which the investigating officer could have known with which firms the Respondent had dealings. The Respondent himself as the circumstances exist could have hardly co-operated with the investigating officer. The visit, in my opinion, by the investigating officer to the United Kingdom would have been a sheer waste of money and would have resulted in great expense and delay in the prosecution of the Respondent. The learned Chief Judicial Magistrate was, therefore, hardly justified in taking this fact into consideration in acquitting the Respondent.

37. It has further been contended on behalf of the Respondent that the Respondent came to India in 1970. His passport was impounded. He had, therefore, no opportunity to go back to the United Kingdom to clear the accounts. From the circumstances of the case pointed out above, his not fulfilling his promise in not rendering his account in 1965, of his not sending back the goods to the complainants as required by some of the complainants and not rendering his accounts in the usual course of business and other circumstances which I have dealt with above would show that no useful purpose would have been served by the Respondent going back to England. In fact, if he had gone to England it might have given him an opportunity to jump over the bail and go out of the jurisdiction of the Indian Law Courts and would not have been within their reach.

38. On behalf of the Respondent it has been contended that since the appeal is against the acquittal the Court should not lightly disturb the finding unless there are substantial compelling reasons.

39. The latest law laid down by the Supreme Court is contained in two of its decisions reported in 1979. In Ganesh Bhawan Patel v. State of Maharashtra : AIR 1979 SC 135 [LQ/SC/1978/305] it was observed thus:

although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as is an appeal against an order of conviction, yet, as a rule of prudence, it should to use the words of Lords Russel of Lellowen- always give proper weight and consideration to such matters as (1) the views of the Trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favor of the accused, a presumption certainly not weakened by the fact that he had been acquitted at the trial; (3) that right of the accused to the benefit of any doubt, and (4) the a lowness of an appellate Court in disturbing a finding of fact arrived at by the Judge who had the advantage of seeing the witnesses." Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.

40. The Supreme Court in K. Gopal Reddy v. State of Andhra Pradesh : AIR 1979 SC 387 [LQ/SC/1978/349] when further observed as below:

The principles are now well settled. At some time it was thought that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons." However, the formulae of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwant Singh v. State of Rajasthan : AIR 1961 SC 715 [LQ/SC/1960/332] . In Sanwant Singhs case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. Emperor : 61 Ind App. 398: AIR 1934 PC 227 [LQ/PC/1934/75] (2), and reaffirmed those principles. After Sanwant Singh v. State of Rajasthan, this Court has consistently recognized the right of the Appellate Court to review the entire evidence and to come to its own conclusions, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarups case. Occasionally, phrases like manifestly illegal, grossly unjust have been used to describe the orders of acquittal which warrant interference. But, such expression have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases Ramadhupala Reddy v. The State of A.P. : AIR 1971 SC 460 [LQ/SC/1970/391] ; Bhim Singh Rup Singh v. State of Maharashtra : AIR 1974 SC 286 [LQ/SC/1973/370] etc., it has been said that to the principles laid down in Sanwant Singhs case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favor of the accused must be as nearly reasonable probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of the evidence in favor of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt" it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reason. As observed by Lord Denning in Miller v. Ministry of Prisions (1947) 2 All E.R. 372 "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence of course it is possible but not in the least probable the case is proved beyond reasonable doubt, but nothing short of that will suffice.

41. After considering all these principles I have no doubt in my mind that the learned Chief Judicial Magistrate was wholly in error in coming to the conclusion that the Respondent was not guilty of committing criminal breach of trust.

42. In assessing the evidence on record I have reached my own conclusion and in doing so I have taken into consideration the views and finding of the Trial Court on the evidence on record. In my opinion, the learned Chief Judicial Magistrate has not rightly approached the case either in regard to the view taken by him on the question of sanction of the case or on the defectiveness of the charges or on the facts and evidence in the case. The prosecution, in my opinion, has been successful in proving the guilt of the Respondent Under Section 400 IPC beyond all reasonable doubt.

43. The question of sentence requires consideration in this case. The cases are pending against the Respondent since the year 1970 and for a decade he has not been able to go back to his place of business. It is, therefore, obvious that the Respondent must have been a ruined person by now. However, the sums for which he committed criminal breach of trust are also substantially large. Taking all these facts into consideration I am of the opinion that in each one of the cases a sentence of rigorous imprisonment for one year and a sentence of fine in each one of the cases would be the proper sentence. In Government appeals Nos. 1873 and 1874 of 1979 and in Government Appeal No. 1876 of 1979 a sentence of fine of Rs. 5,000/- shall be imposed in addition to the sentence of imprisonment. In Government Appeal No. 1871 of 1979 a fine of Rs. 2,000/- shall be imposed in addition to the sentence of imprisonment. In Government Appeal No. 1872 of 1979 a fine of Rs. 1,000/- shall be imposed in addition to the sentence of imprisonment. In Government Appeal No. 1875 of 1979 a sum of Rs. 5,000/- shall be imposed in addition to the sentence of imprisonment.

44. I allow the Government Appeals Nos. 1871, 1872, 1873, 1874, 1875 and 1876 of 1979 and set aside the acquittal of the Respondent. In Government Appeals Nos. 1873, 1874 and 1876 of 1979 the Respondent is convicted Under Section 409 IPC and is sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 5,000/- (rupees five thousand). In default of payment of fine he shall further undergo rigorous imprisonment for six months. In Government Appeal No. 1875 of 1979 the Respondent is convicted Under Section 409 IPC and is sentenced to undergo rigorous imprisonment for one year and fine of Rs. 5,000/-(rupees five thousand). In default of payment of fine he shall further undergo rigorous imprisonment for six months. In Government Appeal No. 1871 of 1979 the Respondent is convicted Under Section 409 IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 2,000/- (rupees two thousand). In default of payment of fine he shall further undergo rigorous imprisonment for four months. In Government Appeal No. 1872 of 1979 the Respondent is convicted Under Section 409 IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 1,000/- (rupees one thousand). In default of payment of fine the Respondent shall further undergo rigorous imprisonment for three months. The sentences imposed in all these appeals shall run concurrently. The Respondent is on bail. He shall be taken into custody forthwith to serve out his sentences.