J. Sharma Sarkar, J. - (1.) The principal point for decision in this appeal is whether the Appellant Brojendra Mohan Mazumdar was the buyer of 380 bundles of G.C. sheets or an agent entrusted with the same.
(2.) Prosecution alleges that the Appellant was appointed a handling agent or stockist of G.C. sheets (white) at Lalbagh, Murshidabad, in terms of an agreement (Ex. 1) dated June 25, 1953 and another (Ex. 2/1) dated November 10, 1952. The Appellant was to take delivery of the consignment by prepayment of the cost price of the materials and freight when the Railway receipt was to be endorsed by the Sub -divisional Officer and the Appellant was to give delivery "only to such person or persons and of such quantities as the Sub -divisional Officer, Lalbagh, may permit him in writing". It is further alleged that the Appellant received 200 bundles of G.C. sheets on May 13, 1953 and 200 bundles on May 16, 1953, as per receipts granted by him (exs. 3 and 4) and there was a stock of one bundle from before. Out of the 401 bundles, 21 bundles were sold to permit holders between November 25, 1953 and December 5, 1953, as per stock register (Ex. -51) maintained by the accused and cash memos. Nos. 520 to 530 in cash memo, book R/1. The Appellant submitted a return (Ex. 14) dated January 1, 1954, showing stock of 380 bundles. But on verification of the stock none was found at Lalbagh on April 28, 1954, at the godown (stable of Nawab Bahadur of Murshidabad) where the stock was to be kept as per agreement. Only 4 bundles of G.C. sheets were found in the Berhampore godown of the accused on October 6, 1952 (Ex. 17) and no stock was found there on May 19, 1954 (Ex. 18), when the godown was inspected and stock was verified. But the Appellant in his stock register (Ex. 51) showed sales of 380 bundles of G.C. sheets by cash memo. Nos. 1.01 to 296 to 196 persons between April 17, 1954 and May 15, 1954. Prosecution examined 95 persons out of these 196 to show that no permit was Issued to them and no G.C. sheets were received by them from the Appellant.
(3.) On these allegations the following charge was framed against the Appellant: That you from December 5, 1953 to May 15, 1954, being) entrusted with 401 bundles of G.C. Sheets by the Government of West Bengal in the Refugee Rehabilitation Department in the capacity of a Government Agent and a stockist committed Criminal Breach of Trust in respect of 380 bundles out of the said 401 bundles by showing sales to various fictitious persons and thereby committed an offence punishable under Sec. 409 of the Indian Penal Code and within my cognizance. On the charge so framed the Appellant was convicted and sentenced to rigorous imprisonment for four years by the Judge, Additional Special Court, Murshidabad.;