KHIRODE KUMAR MOOKERJEE Vs. EMPEROR

JUDGEMENT

(1.) The appellant Khirode Kumar <JGN>Mukerji</JGN> was tried by the Additional Sessions Judge of Khulna with the aid of a jury on a charge under Section 408, I.P.C. The charge was to the effect that between Jaistha 1329 and Baisakh 1330 the accused committed criminal breach of trust in respect of a sum of Rs. 7,434. That figure was arrived at upon a calculation which is to be found set out in the learned Judge's charge to the jury. The total amount collected by the accused was said to be Rs. 16,29014-0 consisting of 16 sums of money. The amount of Government Revenue paid by the accused was Rs. 7,868-14-9. Rs. 889 9-0 was sent by the accused to the proprietors and the accused was entitled to Rs. 407 as the stipulated amount of pay for the year. Deducting the last three items from the amount of collections the balance left was Rs. 7,125-6-3. To this was added Rs. 311 being the cash in hand at the close of the previous year and this gave a total of Rs. 7,436-6-3. The jury returned a unanimous verdict of guilty but recommended the lightest punishment consistent with justice as in their opinion the amount misappropriated by the accused was much less than the amount stated in the charge. As to the amount embezzled they were not unanimous and they said they were not able to ascertain it definitely, but the majority of them were of opinion that it might be a thousand rupees or so out of the amount mentioned in the charge. The learned Judge agreed in the verdict. He, however, was of opinion that the amount embezzled was not a thousand rupees or so but nearly rupees five thousand. He accepted the verdict and convicting the appellant under Section 408, I.P.C., sentenced him to undergo rigorous imprisonment for three years. Hence the appeal.

(2.) The question is whether upon such a verdict the conviction can stand.

(3.) On behalf of the Crown reliance is placed upon the provisions, of Section 222, Sub-section (2) of the Criminal P. C., as justifying a verdict of this nature. It is said that the law permits a charge being framed in respect of a general deficiency in accounts and even if the jury are unable to find what particular amount has been embezzled, if they are satisfied that there is a general deficiency, so long as the amount of the deficiency is a part of the amount stated in the charge, they may bring in a verdict of guilty and the Court is entitled to act upon the verdict. In support of this proposition reliance is placed on the case of R. v. Lambert (1847) 2 Cox. C.C. 309.