- (1.) THIS is an appeal by Ratan Lal against the judgment of the Sessions Judge Bharatpur, dated the 26th April, 1954, convicting him under sec. 409 I. P. C. and sentencing him to one year's R. I. and a fine of Rs. 100/-or in default 3 month's further R. I. Out of the fine, if paid, Rs. 50/- were ordered to be paid to the Post Office at Bharatpur. The appellant was acquitted of the offences under sec. 477-A I. P. C. and sec. 5 (2) of the Prevention of Corruption Act.
(2.) THE prosecution case is that one Sher Singh sent a money order from Kesarganj, Meerut, which was addressed to Rambaboo, Tailor Master, Additional Mathura out-gate Gulal Kund Nali, Bharatpur THE amount was entrusted by the Post Office to the accused, Ratanlal, along with the money order form, who was the postman, for disbursement to the addressee on the 28th of May, 1953, and the same day the accused returned the form purporting to have been duly signed by Rambaboo, the addressee, and one witness Kalli Ram Master. Rambaboo, complained to the Post Master on the 7th of July, 1953, that his money order had not been delivered to him and the case was then enquired into. After proper sanction the accused was prosecuted under secs. 477a and 409 I. P. C. and sec. 5 (2) of the Prevention of Corruption Act. THE case was committed to the Court of Sessions at Bharatpur and the learned Sessions Judge after holding a trial acquitted the accused of the other two offences but convicted him of the offence under sec. 409 I. P. C. and sentenced him as stated above. The case of the defence was that the accused received the amount of Rs. 50/- from the Post Office, Bharatpur, along with the money order form and he made payment to a person who alleged himself to the Rambaboo and who was identified by another parson, Kalli Ram Master, to be such and that the accused did not dishonestly misappropriate the amount or convert it to his own use in any other manner. In his statement the accused further stated that he had been posted in that locality only a few days before this occurrence took place and he made enquiries in order to find out the house of the addressee and while he was going towards the house which was as that of the addressee, two persons met him and he asked them about Ram Baboo and told them that there was a money order for him. One of them, he stated, told him that he was himself Rambaboo and demanded the money order and the other identified him. The accused honestly believed that person to be the real addressee and he made payment to him and obtained his signatures of receipt and also took the signature of the other in witness thereof and paid the amount of the money order to him. The accused has further added that as he was new and as he was afraid of a complaint against him for troubling people he made the payment promptly without further enquiries for ascertaining the identify of the addressee. Mr. Jain on behalf of the appellant has urged that the prosecution has failed to discharge its burden of proving generally that the accused had dishonestly misappropriated the amount of the money order and the offence, therefore, should be taken to have not been proved against the accused. The learned Sessions Judge has observed in his judgment as follows: - "it is not possible for the prosecution to prove how the money had been misappropriated. Once it is proved that the amount was entrusted to the accused, the burden of proof shifted on him to show what he did with that money (R. L. W. 1952 page, 194 ). When the accused could not account and the payment as alleged by him is not believed, the natural inference is that he misappropriated it. The accused is guilty of criminal breach of trust and the guilt under sec. 409 I. P. C. is brought home to him upto hilt. " It may be pointed out that the judgment referred to above by the learned trial court (1952 RLW page 194) does not support the observation of the learned Judge in the manner in which the learned Judge has tried to take help from it. The relevant observations of the learned Chief Justice in Jago vs. The State (1) are as follows: - "the next point that has been urged is that the prosecution has failed to prove misappropriation or conversion of the money to his own use by Jago. Sec. 405 of the Indian Penal Code which defines "criminal breach of trust" says that whoever being in any manner entrusted with property dishonestly misappropriates or converts to his own use that property commits ''criminal breach of trust. " In this case, it has been proved that Rs 2400/-were entrusted to the applicant and it was settled that if Gyana supplied the opium, the money would be paid to Gyana and that if Gyana did not supply the opium, the money would be returned to Purkha. It has also been proved that Gyana did not supply the opium. The evidence further is that Gyana himself went with Purkha and asked Jago to return the money. Jago is said to have put off payment for some time and eventually denied having received the money at all. His statement in the Magistrate's court was that Purkha never entrused the sum of Rs. 2400/- to him. It is true that the prosecution has not proved what Jago did with the money. But, in the nature of things,it was not possible for the prosecution to prove how Jago had actually used the money. It is well settled that once it has been proved that the money was entrusted to a person,the burden shifts on him to show what he did with the money, and if he completely denies having received the money, the presumption is that he misappropriated it or converted it to his own use. If that was riot so, there is no reason why such a person should not admit that he had received the money and account for it. " It would appear from the aforesaid extract of the judgment in Jago's case that the accused had denied entrustment of the money to him and the prosecution had succeeded in proving that the money had been entrusted to him. It was under these circumstances that an adverse inference was drawn against the accused. In the present case the accused has, from the very beginning,admitted entrustment of the money to him and his defence has been that he delivered the amount to a wrong person by mistake. Sec. 405 of the Indian Penal Code defines "criminal breach of trust" 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 any legal contract, express or implied, which he has made touching the discharge of such trust, wilfully suffers any other person so to do, commits''criminal breach of trust. " It was, for the prosecution to prove that the accused dishonestly misappropriated etc. the property entrusted to him in violation of the terms of entrustment or the law or at least some overt act of the accused giving rise to an inference that the money entrusted to his care had been dishonestly misappropriated or converted to his own use. Mr. Jain has referred to certain observations of the learned Judges in Major Robert Stuart Wauchope-Appellant vs. Emperor (2) wherein it has been observed as follows: - "in criminal cases the onus of proving the general issue never shifts, and it lies upon the prosecution to prove beyond reasonable doubt the guilt of the accused. . . . . . If there is one maxim of criminal jurisprudence which is better established and more fundamental than any other, it is that an accused person must always be presumed to be innocent until he is proved to be guilty. It is true that the burden of establishing any special issue raised by the accused rates upon him, but there is always the burden of the general issue as to the guilt of the accused person which always rests upon the prosecution. " The learned trial court has inferred from the fact of entrustment itself that the accused misappropriated or converted to his own use the amount entrusted to his care. Such an inference under the circumstances of this case does not appear to be proper. The plea of the accused was that he made payment of the money-order to a wrong person. The manner in which the accused stated to have paid the amount shows, that he was certainly negligent in not making proper enquiries about the identity of the person to whom he says he paid the amount. But the question of negligence on the part on the accused is quite different and it cannot go to impose criminal liability upon him regarding the offence of breach of trust. The accused produced 4 witnesses but the evidence which has come on his behalf does not fully proved the plea taken up by him. The statements of the defence witnesses only show that the accused tried to enquire about the house of Rambaboo and was seen making payment. However, D. W. 4, Raghubir Singh has stated that the accused had newly been posted in that locality and was a new employee of the department. He has also stated that sometimes mis-payments are possible. The question therefore, is whether the accused on account of his negligence made wrong payments of the money order to some person or he misappropriated the amount himself and forged the signatures of the recipient in order to do so. AS regards the signatures no evidence was led by the prosecution and the charge of fabricating false evidence failed against the accused. The reasonable probability of the accused having made wrong payment cannot be ruled out without any specific evidence on behalf of the prosecution to show that the accused acted dishonestly and misappropriated the amount himself. The mere fact that the money was entrusted to the accused is not by itself sufficient to relieve the prosecution of its burden to prove that the accused misappropriated or converted to his own use the said amount. The learned Judge of the trial court was not justified in drawing an inference against the accused regarding misappropriated of the money entrusted to him, from the of entrustment of money only. It is true that it is sometimes difficult for the prosection to prove what the accused did with the money entrusted to him. But the difficulty of the prosecution alone cannot be considered sufficient to relieve the prosecution of its duty. The learned deputy Government Advocate took his stand on sec. 106 of the Indian Evidence Act in arguing that how the accused made use of the money is within his special knowledge and it is for him to establish that he did not mis-appropriate the amount and made the payment to a wrong person as alleged by him. Sec. 106 would certainly place the burden on the accused to prove the plea which he intends to take in order to absolve himself of the criminal liability, but it does not mean that the prosecution is relieved of its duty to prove that the accused is guilty. This is a case of circumstantial evidence on the point of misappropriation. It may be that the accused failed to prove the plea taken up by him in his defence but it is enough for the accused to show that the defence put forward by him was not reasonably improbable. In Bhagat Ram vs. State of Punjab (3) though the facts were quite different from the facts of this case, there are certain general observations of their Lordships laying down the principles which would apply even to the facts of this case. Those observations were in a case under sec 4091. P. C and are as follows: "in a case depending on the conclusion drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt. " Further on, their Lordships have said that: "the defence put forward by the accused cannot be said to have been disproved or to be so improbable that his guilt must be taken to have been established beyond reasonable doubt. " As has been discussed above there is no evidence whatsoever on the record to give rise to an inference of dishonesty against the accused. The probability of the accused having made wrong payment cannot, under the circumstances, be held disproved. How-sover negligent the accused may have been in failing to make enquiries about the identity of the addressee it cannot be assumed that he misappropriated or converted to his own use the amount of the money order and the offence of criminal breach of trust cannot be held to have been established against him without any reasonable doubt. Under the circumstances, the accused is entitled to be acquitted. This appeal succeeds and is allowed. The conviction and sentence of the accused are set aside and he is acquitted. He is on bail and he need not surrender. .;