LODHA, J. -
(1.)THIS is an appeal by the State from an order of acquittal passed by the Munsiff Magistrate Mavli under sec. 408, Indian Penal Code. The facts giving rise to this appeal may be stated in a narrow compass.
(2.)THE accused-respondent Kesar Singh was the Superintendent of Naharmagra Palace belonging to His Highness Maharana of Udaipur. THE prosecution case is that it was the duty of the accused to look after the palace buildings including the furniture as well as the agricultural operations carried on behalf of His Highness in the lands apertenent to the Palace. THE accused was appointed in this post with effect from 1-11-55 by the appointment order dated 27-10-1955 and the charge of the Palace was handed over to him on 29-10-1955. THE charge list has been placed on the record and marked Ex. P. 7. On 19-6-1957 the accused made a request in writing to the Master His Highness Household that an amount of Rs. 10,000/- be sanctioned for the purpose of purchasing 1000 Mds. of grain, i. e. 592 Mds. of Jaw, 339 Mds. of wheat and 69 Mds. Karma. It may be stated that there was grain produced in the farms attached to the Palace which was lying in stock and the proposal was that out of that stock 1000 Mds. of grain be kept in a separate account for the purpose of giving on Badi to other cultivators and the price of the said 1000 Mds. of grain be adjusted in the account of Naharmagra Palace. Accordingly His Highness sanctioned a sum of Rs. 10,000/ -. THE prosecution case is that on 23-3-1961, in reply to a query from the Household the accused informed the Master of Household that 1000/- Mds. of grain kept in the reserve out of the stock at Naharmagra Palace in the separate account of His Highness had been given to cultivators on Badi i. e. interest at the rate of 5 seers per Md. per annum. Again on 1-7-1961 the accused informed the Master, His Highness Household that 1000 Mds. of grain was lying in balance. A copy of the letter dated 1-7-1961 from the accused has been placed on the record and marked Ex. P. 19. It appears that the accused was thereafter directed to send the account of the grain lying at Naharmagra Palace. But the accused did not do so for a considerable time, till at last, in the month of February 1962 he sent an account according to which upto the end of 1961 a total amount of grain weighing 1197 Mds. 6 Srs. was shown as lying in balance at the Palace. Along with the account the accused also sent a letter stating that the grain had been given on Badi to one Varda Gujar after getting a writing from him to the effect that he would pay Badi at the rate of 5 Srs. per Md. THE copy of the account is Ex. P. 8 and the copy of the letter sent along with it is Ex. P. 4.
After some time the Master of His Highness House-Hold entertained a doubt as to the correctness of the version given by the accused in Ex. P. 4, and, therefore, the accused was called to Udaipur. However, the accused did not present himself before the Master of Household and applied for leave. This evasive attitude on the part of the accused let the Master of Household to depute Shri Sada-shiv (P. W. 6) to make an enquiry on the spot and to find out the correct position, with respect to the stock of grain. Shri Sadashiv went to Naharmagra on 19-10-1962 and on enquiry from Varda Gujar came to know that, the information supplied by the accused vide Ex. P. 4 was incorrect and Varda Gujar had not been supplied any grain on Badi. After submission of this report by Shri Sadashiv to the Master of House-Hold, the accused was again sent for but he again avoided to come nor cared to present himself before the Master of House-Hold. Thereupon the Master of Household served a notice on the accused through a lawyer, but the reply which the accused gave was not found to be satisfactory. Therefore the Master of Household lodged a first information report against the accused as well as one Bhop Singh, who was working under the accused at Naharmagra palace on 13-2-1963 which has been marked Ex. P. 1. After carrying out the necessary investigation the accused along with Bhop Singh was prosecuted in the Court of Munsiff-Magistrate, Mavli for an offence under sec. 408, Indian Penal Code. It may, here, be stated that Bhop Singh died before the framing of the charge and therefore the trial proceeded against the accused Kesar Singh only.
In support of its case the prosecution examined 12 witnesses. The accused denied having committed any offence and examined 6 witnesses in defence.
The learned Magistrate by his judgment dated 6-1-1966 acquitted the accused for the charge under sec. 408, I. P. C. , hence the State filed this appeal. Mr. Murudkar appearing for the State has contended that the offence under sec. 408 Indian Penal Code has been fully established against the accused. He submits that there is no dispute that the accused was appointed as the Superintendent of Nahar-magra palace by His Highness Maharana of Udaipur, and it was an essential part of the duty of the accused to look after the grain which was lying there. It is argued that it is proved by the prosecution witnesses that the accused had been entrusted with 1000 Mds. of grain and even if physical entrustment is not proved the accused had dominion over the property in question, and in this connection Mr. Murudkar has placed strong reliance on the copy of the account Ex P. 8 and the letters Ex. P. 4 and Ex. P. 10, which are proved to have been signed by the accused. He has further submitted that according to the version of the accused as contained in Ex. P. 9 the grain in question had been weighed in his presence and handed over to Varda (P. W 5) who has completely belied this version given by the accused. The contention of the learned counsel is that in these circumstances the inference should be drawn that the accused being a servant of his His Highness the Maharana of Udaipur committed criminal breach of trust in respect of 1000 Mds. of grain which had been entrusted to him in his capacity as Superintendent of Naharmagra Palace or at any rate over which the accused had full dominion and control. It is submitted that it was neither possible nor necessary for the prosecution to prove in what manner the grain in question had been misappropriated or converted by the accused to his own use. In support of his submission the learned counsel had placed reliance on Krishan Kumar vs. Union of India (l) J. M. Desari vs. State of Bombay (2), Jaswantrai vs. State of Bombay (3), Yashwantrai vs. The State (4) and Wazirsingh vs. Emperor (5 ). On the other hand Shri Gobhil, learned counsel for the respondent accused has submitted that no just exception can be taken to the finding of the learned Magistrate that the prosecution has failed to prove entrustment of the grain in question to the accused or any dominion of the accused over the said property, and therefore the order of acquittal passed by the Magistrate should not be interfered with.
It is not disputed that the accused Kesar Singh was the Superintendent of the Naharmagra Palace at the relevant time. It is also not denied that he used to supervise over all the affairs connected with Naharmagra Palace. The main point for determination, however, is whether on the facts and circumstances brought on the record it can be said that he was entrusted with the grain in question lying in stock at the Naharmagra Palace or in the alternative he had dominion over this stock of grain ? If this fact is established, then the second question would arise whether he committed criminal breach of trust in respect of this property?
It is correct that by the letter Ex. P. 5 dated 23-3-1961 the accused Kesarsingh informed the Master, His Highness Household that grain weighing 1000 Mds. lying in the stock had been given over to cultivators on Badi and the same would be returned on the next Rabi. It is also borne out from Ex P. 10 that on a report having been called from the Household the accused submitted information to the effect that 1000 Mds. of grain was lying in balance. The account Ex. P. 8 for the period 1958 to 1961. A Depertaining to the stock of grain lying at Naharmagra Palace has been signed by Bhopsingh. The learned counsel for the appellant wants the Court to infer from these documents that the grain was in the charge of the accused and at any rate the accused had dominion over it.
In this connection it would be relevant to refer to the charge list (Ex. P. 7) and order (Ex. P. 19 shows that the charge of the Palace Buildings of Naharmagra, gardens, new land, Beed Amli and Rana Kui Kheredi was transferred from Chaman Singh to the accused Kesar Singh. The charge list Ex P. 7 contains a large number of items pertaining to Naharmagra Palace. Item No. 9 in this charge list pertains to the grain lying in stock and there is the signature of Bhop Singh immediately below it. At the end of the charge list Chamansingh has signed the list in lieu of his handing over the charge and the accused Kesarsingh has also put his signatures in lieu of taking over the charge from Chamansingh. These two documents do suggest that there were a few employees at Naharmagra Palace but undoubtedly the accused was incharge of the whole show and was expected to exercise control, and supervision over the subordinate staff which held the charge of various items connected with Naharmagra Palace. In this connection I may also refer to Ex. P. 2 wherein while asking for payment of Rs. 10,000/- in lieu of getting apart grain for Badi transaction, Kesar Singh made a request that the amount may be paid through Kamdar Bhop Singh. After the submission of letter Ex. P. 2 it appears that His Highness Household made certain enquiry from Bhop Singh and on being satisfied that the amount is in fact needed, sanction for payment of the same was given. It is mentioned in the endorsement that since the Kamdar (Bhopsingh) says that the amount is needed for payments, it may be given. It has also been menti-oned in this endorsement made by the office of Household that the question where and in whose custody the grain would be kept would be decided later on. Apart from these documents there is also the oral evidence indicating that the grain did not remain directly under the custody of the accused Kesar Singh. P. W. 5 Varda states that Bhopsingh and Budhsingh were in the service of His Highness at Nahar Magra and Bhopsingh had been there from the time of the late Highness. He was Kamdar of the Kotari and used to look after the gardens and disbursed the salaries of Halies. He has also stated that it was the part of the duty of Bhop Singh to give and receive the grain and the produce of the garden also. He also states that he was a Sijari (partner in cultivation) at Nahargarh and used to take the produce of his share from Bhopsingh. He has also deposed that the grain used to be kept under the lock, and the key remained with Budhsingh, and after Budh Singh had gone away Bhop Singh used to keep the key with him. Then again P. W. 10 Devilal has stated that Bhopsingh used to go to Udaipur for submitting the accounts. P. W. 7 Mohan Singh states that he had been a Forest Guard at Naharmagra Palace for about 10 years and Bhop Singh was the Kamdar at Naharmagra at that time. He has further stated that Bhopsingh used to write the accounts, and all the papers and accounts pertaining to Naharmagra used to remain in his custody. He has also clearly stated that Bhop Singh used to give grain from the Kotha to the cultivators and the Kotha in which the grain was lying was under the lock and key of Bhop Singh. P. W. 11 Raghunath Singh has also stated that he knows Bhop Singh, who used to come to Udaipur for submitting accounts and drawing money in respect of Naharmagra Palace. Thus from this evidence it is crystal clear that it was Bhop Singh who was incharge of the stock of grain and it was part of his duty to give the grain to the cultivators and also to receive it back and to keep accounts of the transactions.
Learned counsel for the appellant has laid great emphasis on Ex. P. 9 in support of his submission that the grain in question had been entrusted to the accused and he exercised full control over it. It would therefore be necessary to examine the contents of Ex. P, 9 and the circumstances in which it came into existence. Fx. P. 9 it may be stated, is only a part of the whole document, the other part being Ex. D. 1. Both Ex. P. 9 and Ex. D. 1 have been produced by the Investigating Officer in the Court. According to the defence Varda made an application to the Superintendent, Naharmagra Palace on 10-10-61 that grain may be given to him on Badi and he would return the same in Jeth, Samwat 2018. The accused called for a report from the Kamdar as to how much grain was in stock, and thereupon the Kamdar Bhop Singh submitted his report about the actual stock and recommended that grain may be given on Badi to Varda, and on this report the accused passed an order that in accordance with the report of the Kamdar the grain may be given to Varda. The order which purports to have been passed by the accused is also written in the hand of Kamdar Bhop Singh though it has been signed by the accused Below this, there is a further endorsement by the Kamdar that the grain to the tune of 1197 Mds. 6 Srs. had been weighed and handed over to Varda in the presence of the accused. Below this endorsement, which is also in the hand of Bhop Singh, there is the signature of accused Kesar Singh. This is the purport of Ex. P. 9 and Ex. D. 1. Learned counsel for the appellant contends that these documents have been forged and as a matter of fact no grain had been handed over to Varda and these papers were prepared by the accused in collusion with Bhop Singh to escape the liability of criminal breach of trust. It is also contended that these were produced by Bhop Singh before the Police after about eight months of lodging of the first information report. If, as is contended by the learned counsel, these documents do not represent the actual state of affairs, I am afraid no advantage can be derived out of them so as to help the prosecution. The argument comes to this, that the grain was never handed over to Varda and the question of handing over the same in the presence of the accused does not arise at all. The question whether these documents are forged and have been manufactured by the accused in collusion with Bhop Singh to forestall his defence will however be dealt by me a little later. But for the present, suffice it to say, that the prosecution cannot take any advantage out of it to fortify its contention that the accused was incharge of the grain.
Learned counsel for the appellant realising that a clear case of entrustment having not been made out by the prosecution on the record contended that any rate the accused must be deemed to have dominion over the grain. As already observed above the accused no doubt exercised supervisory powers over all the staff at Nahar-magra Palace and had control over it, but it was not part of his duty, it so appears, to either lend grain to or receive it back from the cultivators. If, for any reason, the grain were found short, in my opinion, in the circumstances of the case, he would not be answerable for shortage in the stock unless it was proved that he was a party to the pilferage. In the broad sense of the term, it may be said, that he had control over all the affairs connected with the Naharmagra Palace, but, that by itself in my opinion, is not sufficient in the circumstances of the present case to hold that he was liable for any shortage in the stock. The question of holding a person having general control over property liable for an offence under sec. 408 Indian Penal Code can arise only if it can be shown that the person either by himself or in collusion with others committed a criminal breach of trust in respect of that property. In. my opinion in cases of criminal breach of trust a distinction has to be drawn between the person entrusted with the property and a person having control or general charge over the property. In case of entrustment of property, if it is found that the property is missing, without further proof the person to whom the property has been entrusted will be liable for accounting the same. Whereas in the case of a person having supervisory or general control over a certain property, he would be liable only when it is shown that he has appropriated it or was a party to criminal breach of trust committed in respect of it by any other person. Learned counsel for the appellant has referred to observations made in 'law of Grimes' by Ratan Lal Dhirajlal, in para 5 under sec. 408 at page 1090 in support of his argument. It appears the observations made by the learned author are based on Emperor vs. Bimala Charan Roy (6 ). In that case the accused was a Municipal Water Works Inspector, whose duty it was to supervise and check the distribution of water from the Municipal Water Works. Thus he had dominion over the water belonging to his employer. He leased out a house within the municipal limits and had that house connected with municipal main and accepted an yearly payment as water tax from his tenant. But neither informed the Municipal Board that the connection had been made, nor credited to the Board the money which he received as water tax from his tenants. In these circumstances, it was held that he deliberately misappropriated such water for his own use or for the use of his tenants for which he paid no tax and gave no information to his employers and thus was guilty of criminal breach of trust Thus assuming that the accused had dominion in the sense of general control and supervision over all the properties of His Highness at Naharmagra Palace, he can be held criminally liable for criminal breach of trust under sec. 408, Indian Penal Code only in case it is proved that he deliberately misappropriated the grain for his own use or for the use of some-body. Learned counsel for the appellant submitted that it was not at all necessary for the prosecution to prove in what way the misappropriation had been made by the accused and in this connection he placed strong reliance on Krishan Kumar vs. Union of India (l ). In that case the appellant was employed as an Assistant Store Keeper in Central Tractor Organisation at Delhi and amongst other duties his duty was the taking of delivery of consignment of goods received by rail for Central Tractor Organisation, and in that capacity, it was alleged, that he had misappropriated a major portion of a wagon load of iron and steel weighing about 500 Mds. received at Delhi Railway Station. Thus it was clearly a case of a person, who was responsible for taking the delivery of goods and thus he was entrusted with such goods. In other words it was not a case of a person having control or supervision over the property. In that case the accused had paid demurrage by means of credit notes but the consignment never reached the Central Tractor Organisation. In these circumstances their Lordships were pleased to observe that, "it 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 by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements _ of criminal offence of mis-appropriation 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 not done so. "
Another case relied upon by the learned counsel for the appellant is J. M. Desai Vs. State of Bombay (2 ). It was held in this case that 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 had dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of detect 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. 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 lor the property entrusted to him, nor over which he has 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.
The question, therefore, arises whether in the facts and circumstances of the present case an inference of misappropriation or conversion can be drawn against the accused? Learned counsel for the appellant has submitted that P. W. 5 Varda has stated that no grain was delivered to him as mentioned in Ex. 9, and, therefore, an inference must be drawn against the accused. Ex. P. 9 and Ex. D. 1 bear the thumb-impressions purporting to be of Varda and D. W. 6 Rupsingh, an ex-servant of His Highness at Naharmagra Palace has stated that the grain was delivered to Varda by Bhop Singh in his presence. The accused has stated that it was the duty of Bhop Singh to deliver grain and on the papers having been put to him he directed Bhop Singh to give the grain on Badi to Varda. The endorsement in Ex. P. 9 and Ex. D. 1 that the grain was weighed in his presence was made in routine course and it was not possible in the nature of things to have witnessed the weighing of huge quantity of grain weighing 1000 Mds. in his presence. No expert evidence has been produced by the prosecution to prove that the thumb-impressions contained on Ex. P. 9 and Ex. D. l are not of Varda but are forged. In the facts and circumstances of the present case I do not consider it safe to place implicit faith on the statement of Varda, who goes to the length of stating that he had had never any dealings of grain with His Highness while there is abundant evidence from the side of the prosecution itself that Varda used to borrow grain on Badi from Bhopsingh at Naharmagra Palace and it is a serious question whether Varda in fact took any grain from Bhop Singh or not, which is the subject matter of this criminal case? At any rate there is no good evidence so far as the accused Kesar Singh is concerned that he misappropriated or converted any grain for his own use or for the use of anybody else. The only circumstance which appears in evidence against him is that he had general supervision over the property of His Highness at Naharmagra Palace, which, of course included the produce of the farms and further that he had made an endorsement on Ex. P. 9 that grain was weighed and delivered to Varda in his presence. The explanation which has been furnished by him is that he made this endorsement on the report on assurance by Bhop Singh cannot be said to be false or unnatural. These circumstances alone, in my opinion, are wholly insufficient to raise a presumption of misappropriation or conversion of grain by the accused.
In this view of the matter I do not think it necessary to make any detailed reference to the evidence produced by the defence.
(3.)THE learned trial Magistrate after a discussion of the whole evidence placed on the record has come to the conclusion that the prosecution has failed to bring home the guilt to the accused, and this finding cannot be said to be necessarily wrong. This is an appeal from acquittal and the presumption of innocence in favour of the accused had been strengthened by the order of acquittal passed in his favour by the trial court. In my opinion no case has been made out in appeal for taking a view of the facts different from that taken by the lower court and no interference with the judgment of the lower court is called for.
The result is that there is no force in this appeal and I hereby dismiss it. .