Emperor vs >Zahir Haider Bilgrami and Another

Dawson-Miller, C.J.—I have had no opportunity of perusing the judgment about to be delivered by my learned brother and I agree with the conclusions at which he has arrived.

Mullick, J.

This case arises out of the trial of Maulavi Saiyid Zahir Haider Bilgrami and Saiyid Alimuddin alias Ansar Husain alias Allan and has been referred u/s 307 of the Criminal P.C. to the High Court by the Sessions Judge of Patna.

Maulavi Saiyid Zahir Haider Bilgrami is 34 years of age and has been 12 years in the service of Government as a member of the Provincial Civil Service. In or about 1922 he was transferred in the course of his official duties to the District of Darbhanga of which Mr. King was then the District Magistrate and Collector. Mr. King deposes that he found Bilgrami to be a good and loyal officer and that he was mentioned for his revenue work in the Administration Report for the year 1923. In 1923 an exhibition was held at Laheriaserai which is the head-quarters of the District of Darbhanga and out of the funds collected for the same there remained in July 1923 an unexpended balance of Rs. 3,073-2-9 at the credit of the Exhibition Committee. On the 16th July 1923, a meeting of the Exhibition Committee was held at Laheriaserai under the presidency of Mr. King and a proposal was made by the Maharaja Kumar of Darbhanga that this balance should be devoted to the construction of a rest house near the Courts for the use of litigants and that others.

Khan Sahib Saiyid Mahbub Hasan otherwise known as Pearey Sahib who was the local Sub-Registrar and a man of some position moved an amendment that a public park should be laid out and a reading room constructed therein, and after some discussion the amendment was carried. Thereafter a Park Committee was formed and a President, two Vice Presidents, a Treasurer and an Executive Committee of 21 were elected on the 31st August. Bilgrami was elected Honorary Secretary and three other gentlemen, namely, Babu Madhusudan Prasad Singh, Khan Sahib Saiyid Mahbub Hasan, Babu Kumar Kalyan Lal were appointed Joint Secretaries. It was further decided that the park should be called the "King Park" in honour of Mr. King who had successfully administered the Darbhanga District during his term of office and was about to leave the district. On the 27th September 1923, an account was opened with the Muzaffarpur branch of the Imperial Bank of India by Bilgrami as Secretary of the Park Committee and the whole balance at the credit of the Exhibition Committee, namely, Rs. 3,073-2-9 was transferred to his account. The cash book of the Park Committee which was written up at first by Bilgrami himself and subsequently under his orders by his clerk Badri does not seem to have been opened till the 11th December 1923, and shows on that date a credit of Rs. 3,202-15-11. The collection of subscriptions was then rapidly pushed on and we find that by the 5th April 1924 the receipts had amounted to a sum of Rs. 12,690-5-11. Out of this sum a total sum of Rs. 260-2-9 had been expended on establishment and on contingencies leaving a balance of Rs. 12,430-3-6 which was made up as follows:

(1) Rs. 8,473-2-9 in the Bank: (2) Rs. 3,500 shown as deposited in the Bank but not in fact deposited, (3) Rs. 200 in the hands of the treasurer, (4) Rs. 232-0-5 in the hands of the Secretary, and (5) an uncashed cheque for Rs. 25 on the Alliance Bank.

It is admitted that on the 8th April 1924, Bilgrami as Honorary Secretary drew a cheque in favour of Saiyid Alimuddin for a sum of Rs. 1,300 which was cashed by the accused Alimuddin on the 9th April at the Bank''s branch at Muzaffarpur. This sum was not entered in the cash-book till July and it is alleged that it was never spent for the purposes of the Park Committee and that Bilgrami criminally misappropriated it. The cash-book again shows that on the 14th June Bilgrami drew a cheque in favour of Alimuddin for a sum of Rs. 406. The Bank pass book shows that this cheque was cashed on the same date by the payee Alimuddin whose allegation is that he paid this money as well as the Rs. 1,300 not to Bilgrami but to Pearey Sahib. In respect of these two sums Bilgrami has been charged with offences u/s 406, Indian Penal Code, (criminal breach of trust), Section 465, Indian Penal Code, (forgery of the cash-book), and Section 477A, Indian Penal Code, (falsification of accounts). Alimuddin alias Ansar Husain alias Allan has been charged with abetting Bilgrami in respect of the offence u/s 406, Indian Penal Code.

There is also another sum of Rs. 10 in respect of which charges under Sections 406, 465 and 477A, Indian Penal Code, have been preferred against Bilgrami. That sum is alleged to have been drawn by Bilgrami out of the park funds on the 30th July 1924. The allegation is that on that date a man named Jalil was collecting subscriptions for an Imambara at Darbhanga and that Bilgrami ordered his clerk Badri to pay to Jalil Rs. 10 on his account from the park funds. That money was never refunded by Bilgrami and he is charged with having committed criminal breach of trust u/s 406 in respect of it. A receipt was given by Jalil to Badri for this sum and it is alleged that subsequently under Bilgrami''s orders Badri on the 4th August 1924, inserted words in the receipt indicating that the payment had been made on behalf of Khan Sahib Mahbub Hasan.

It is alleged that an entry in the cash book was made on the 4th August under Bilgrami''s orders by Badri showing that a payment of Rs. 50 plus Rs. 10 had been made on the 30th July to Khan Sahib Mahbub Hasan to meet the expenses for registering conveyances relating to the purchase of lands for the park and that so far as the entry relates to the sum of Rs. 10 it is false and that the money was never received by the Khan Sahib. Bilgrami, therefore, has been charged with an offence under Sections 465 and 477A in respect of this entry in the cash-book of the 4th August 1924. (Then the judgment discussed the evidence and proceeded.) On 19th January 1925, Mr. King, in accordance with an order made by the Government of Bihar and Orissa under the provisions of Section 197 of the Criminal P.C., lodged a formal complaint charging Bilgrami with criminal breach of trust as a public servant.

Bilgrami and Alimuddin were thereupon placed upon their trial but before any witnesses could be examined at Laheriaserai, the case was, upon the application of Bilgrami, transferred to the file of Mr. Owen, the District Magistrate of Patna, who in due course committed the case for trial to the Court of Session at Patna.

In Mr. Owen''s Court Bilgrami did not offer any explanation of the evidence against him, nor had he appeared in person before Babu Sukhdeo Narain. In the Sessions Court he submitted a long written statement which was accepted though strictly speaking there is no provision in law for such a procedure.

Alimuddin had made a statement on the 17th November before Babu Sukhdeo Narain. There he modified the statement which he had made on the 15th November before Mr. King and he said that he had cashed the cheques for Rs. 1,300 and Rs. 406 and paid the money Pearey Sahib.

It was contended before the Sessions Judge on behalf of Bilgrami that Ram Babu and Pearey Sahib had conspired to ruin Bilgrami, that Ram Babu had falsely denied payment of the sum of Rs. 1,706 and that Alimuddin was in fact represented to Bilgrami by Ram Babu as being Ram Babu''s creditor. Alimuddin''s defence in the Sessions Court was that he had at Pearey Sahib''s request made over the money to Pearey Sahib and that he had falsely stated before Mr. King on the 15th November that he was Ram Babu''s creditor. He denied that he had taken the money for himself. The jurors were divided, four being of opinion that the accused were not guilty of any of the charges and one being of opinion that both were guilty of all the charges.

The learned Sessions Judge is of opinion that the verdict of the majority is perverse and he has referred the case to us u/s 307 of the Criminal P.C. (Then the judgment dealt with evidence as to the time when excavation of tank began and other matters relating to the charge and held that the inferences which ought to be drawn from Bilgrami''s letter are so irresistible that the jury should have considered themselves bound to find in favour of the version put forward by the prosecution.) It is true that where one of two inferences is possible upon the evidence the Court of reference will not interfere with the finding of the jury even though the Court is of opinion that it would have drawn the other inference if it had been a Court of appeal. But where as in this case the inference drawn by the jury is manifestly inconsistent with the documentary evidence and with the conduct of the parties, I think the law makes it obligatory on the Court to interfere. In a reference u/s 307 of the Criminal P.C. it is not sufficient to show that another jury might have formed a different opinion; what the prosecution has to show is that no reasonable body of men would have returned the verdict complained of. This was the view taken in this Court in Emperor Vs. Ali Hyder, and we think it is in accordance with law.

The learned Assistant Government Advocate who has submitted the evidence to a careful and scrupulously fair analysis also contends that as Mr. King, the complainant, was a European British subject the trial was held under the provisions of Ch. 33 of the Criminal P.C., and that if the Judge had, accepting the majority verdict of the jury, acquitted the accused he would u/s 449, Criminal P.C., have been entitled to appeal to the High Court on the facts. He argues that in a reference tinder Section 307 in such a case the High Court has a similar power to revise the findings of fact. The answer to this is firstly, that Section 444 enacts that where a public servant makes a complaint under the orders of Government, as such public servant, Ch. 33 does not apply and, secondly, that the Code does not enact that the powers of the High Court in the matter of a reference are co-extensive with those in an appeal u/s 449. There is a difference and though it may not be justifiable on principle yet the Code remains and must be strictly followed. I think, therefore, that the ordinary rule with regard to references must be followed and that we ought not to interfere unless we are satisfied that the verdict was not reasonable.

The result is that after giving due weight to the verdict of the jury and the opinion of the learned Sessions Judge, and after considering the entire evidence, we must disagree with the verdict of the majority of the jury and hold that the accused Bilgrami committed criminal breach of trust on the 8th April in respect of a sum of Rs. 1,300 and on the 14th June in respect of the sum of Rs. 406, that he committed the offence of falsification of accounts on or about the 10th and 14th June by making false entries in the cash-book, and that he also committed the offence of forgery in respect of these entries.

Bilgrami is, therefore, guilty of an offence under Sections 406, 477A and 465 of the Indian Penal Code respectively. As for Alimuddin he clearly assisted Bilgrami in committing the offence of criminal breach of trust and he is guilty of abetment of an offence u/s 406 read with Section 109, Indian Penal Code. His defence that the sums were made over to Pearey Sahib is proved to be false, and having regard to the circumstances the inference is irresistible that he made over the money to Bilgrami and that he knew that Bilgrami intended to misappropriate it. (Then his Lordship discussed evidence as to the sum of Rs. 10 and held that the finding of the majority of the jury should not be disturbed and proceeded). I, therefore, think that whatever our own opinion may be the verdict of the majority of the jury should not be disturbed in regard to the charge u/s 406 of the Indian Penal Code under this head.

The alteration of the receipt was certainly wrong and Bilgrami should not have ordered Badri to make in the body of it an interpolation purporting to have been made in the handwriting of Abdul Jalil. But if the money was in fact paid for Pearey Sahib it cannot be said that the interpolation was made with a fraudulent or dishonest purpose.

The same considerations apply to the charge u/s 477A of the Indian Penal Code. Bilgrami must, therefore, be acquitted of the charge under Sections 465 and 477-A of the Indian Penal Code in respect of the sum of Rs. 10.

It remains to consider what orders should be passed by us in this case. The learned Sessions Judge''s charge to the jury is so careful and complete that no room is left for any complaint of misdirection or non-direction. A re-trial cannot, therefore, be ordered, and it is our duty to convict the accused Maulavi Saiyid Zahir Haider Bilgrami of the offence of criminal breach of trust u/s 406 of the Indian Penal Code in respect of the sums of Rs. 1,300 and Rs. 406, also of the offence of committing forgery u/s 465 in respect of the false entries in his cash-book in respect of the sum of Rs. 1,300, also of the offence of falsification of accounts u/s 477A of the Indian Penal Code in respect of the sums of Rs. 1,300 and Rs. 406.

He is acquitted of all the remaining charges. The accused Alimuddin alias Ansar Hussain alias Allan must be convicted of the offence of abetment of criminal breach of trust u/s 109 of the Indian Penal Code read with Section 406 of the Indian Penal Code in respect of the sum of Rs. 1,300 and Rs. 406. With regard to the sentence to be passed on Maulavi Saiyid Zahir Haider Bilgrami we take into account his good service during the period of employment in the District of Darbhanga as well as the social and official ruin which will follow upon a sentence of imprisonment, and the fact that he has already suffered so much anguish of mind that he made an attempt upon his own life. The learned Counsel who has represented him before us has said everything that could possibly have been said on his behalf but it must be remembered that he was entrusted with public funds and that he has endeavoured to place the blame on two perfectly innocent men.

The order of the Court is that he be sentenced u/s 406 of the Indian Penal Code to rigorous imprisonment for a period of two years. We pass no sentence in respect of the other charges of which he has been found guilty. As for the accused Alimuddin alias Ansar Hussain alias Allan, he appears to have been a mere tool in Zahir Haider Bilgrami''s hands and the order of the Court is that he be sentenced u/s 109 of the Indian Penal Code read with Section 406 of the Indian Penal Code to rigorous �imprisonment for six months.