Decided on December 10,1948



SHEARER, J. - (1.) THIS is an appeal by the Province of Bihar against an order of Mr. G. P. Variua, Deputy Magistrate of Siwan, acquitting the respondent, Bhagwat Praaad on two chargea on which he was prosecuted one a charge of falsification of accounts and the other a charge of attempting to convert to his own use 80 bags 50 of rice which was part of the stock in a godown in which, until 2lst July 1947, he wag in sole charge.
(2.) ON 21st July 1947, in pursuance of orders which had been issued some considerable time previoualy by the Provincial Government, double locks were put on the godowns, one key being given to the respondent and the other key to the Market Inspector. Three days later, the head clerk of the Price Control Department, and an -other clerk, along with the Market Inspector, went to the godowna and prooeeded to count the bags in them. It is said that, when they came to a amall room in one of the goflowns, the coolies told them that there was nothing in it and that it was dangerous to go inside as they might oome across snakes. The respondent, it is said, also assured them that this room was empty. According to the prosecution, the Market Inspector went on to count the bags in the other godowns but as his suspicion had been aroused, came back to this room and forced it open and discovered the 80 bags of rice inside. Two days later, on 26th July 1947, the respondent made a long and circumstantial statement to a Deputy Magistrate. In this he admitted that the 80 bags of rice had been put in this room in order that they might be clandestinely removed and sold to some dealer and the sale proceeds misappropriated. He asserted, however, that al - though ha himself had been privy to this, the initiative had come not from him but from the Market Inspector himself and the head clerk and that there had been a conspiracy in which he took a very minor part. The respondent also admitted in this statement that the 80 bags of rioe had been offered to a dealer, Mohan Lai, and that this man had declined to buy them. Mohan Lai gave evidence at the trial and said that it was the respondent who had offered the bags to him and implied that neither the Market Inspector nor the head clerk had had anything whatever to do with the transaction. Mohan Lai, however, also said that the offer had been made to him on 2Cth July 1947, that is, after the concealment of the bags had been discovered, and it is more than a little difficult to believe that the respondent would then have ventured to try and get rid of them on his own responsibility. The learned trying Magistrate distrusted the evidence of Mohan Lai, and I think myself, distrusted it with good reason. The most serious defect in the judgment of the Court below is that it excluded from its consideration the statement made by the respondent. That statement was clearly admissible in evidence as a piece of con -duot inconsistent with the respondent's innocence. It does not, however, carry the case for the prosecution much further and shows no more than this, that the respondent had formed theintention of selling or assisting in selling these bags of rice to some dealer and so oonverting them to his own use. It is obviously immaterial whether he alone had formed this intention or whether others besides himself had shared in the intention and hoped to share in the profit which was made. Shortly after 24th July 1947 the respondent made an entry in one of the registers which he had maintained, purporting to show that the reason why these 80 bags had been placed in the room in which they were discovered was to facilitate their being issued to dealers on regular permits. It is quite clear that this, by itself, cannot possibly amount to falsification of accounts and is of significance merely as showing that the respondent had formed a criminal intention. It was' suggested more than once during the hearing of the appeal that the act of the respondent in removing these 80 bags from the part of the godown in which they had originally been kept and secreting them in the small room itself amounted to conversion. It seema to me, however, impossible to say that that was so. In Hiort v. be tt (1874) 9 EX. 86 at p. 89 : 43 L. J. EX. 81 conversion was said to occur "where a man does an unauthorised act which deprives another of his property permanently or for an indefinite time," The question that really arises in the appeal is whether this act of the respondent amounted to an attempt to convert the bags of rice to his own use or was merely an aob of pre -paration for the commission of that offence. Section 511, Penal Code, states: "Whoever attempts to commit an offence. . . , and in such attempt does any act towards the commission of the offence." The act done by the respondent was an act towards the commission of van offence, but was it an act done in an attempt to commit that offence ? An attempt to commit an offence is, as I understand it, an aofc, or series of aota, which leads inevitably to the commission of the offence unless something, which the doer of the act or acts neither foresaw nor intended, happens to prevent this. An act done towards the commission of an offence, which does not lead inevitably to the commission of the offenoe unless it is followed or, perhaps, preceded by other acts, is merely an act of preparation. This, I think, is made clear by the two illustrations to Section 511, Penal Code. Now, adopting this criterion, the act of the respondent in secreting these bags of rice, either on his own initiative or with the knowledge and consent of others, was merely an act of preparation. It is not as if, when the bags were discovered, there was a line of bullock carts outside the godown waiting for the bags to be loaded on them, nor is it as it the respondent had already manipulated his registers in such a way as to make it appear that the bags in the other god owns and the other part of this godown comprised the entire stock of which he was in charge.
(3.) THE judgment of the lower Court may be open to a .good deal of criticism, but the conclusion at which it arrived was, I think, the correct one. In' effect, what the learned trying Magistrate found was that there had been a conspiracy and that, although the respondent had taken part in this conspiracy, the part which he had taken was, in all probability, a very minor one. It is, V think surprising and regrettable that a more thorough investigation was:not made in order to discover what had actually happened. The order of the Provincial Government that double locks should be put on the godowns was not complied with for several months and would only seem to have been complied with because the Market Inspector was under orders of transfer to another station. Many of the bags in this and the other godowns were found to be deficient in weight and in some cases even to have contained rice of different qualities. Presumably, steps were subsequently taken to weigh the whole of the bags and to be rt out the different kinds of rice, but for some reason or other, no evidence was led at the trial to show what exactly this enquiry revealed. If there was to be a prosecution, it ought to have been a prosecution for conspiracy, and if such a prosecution was instituted, - the" other persons engaged in the con. 8piracy, or at least those of them who took a bigger part in it than the respondent, should have been put on trial. One of the two charges should never must have been framed, and the other charge was not, in my opinion, for the reasons which I have just given, made out. The appeal fails and must accordingly be dismissed. Reuben, J.;

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