Parmod Ban Behari Saran vs Emperor

Ross, J.—This is an application by one Parmod Ban Behari Saran formerly Station Master of Ghorasahan on the Bengal and North-Western Railway who has been convicted of criminal breach of trust in respect of two sums of money, and has been sentenced to four months'' rigorous imprisonment on each charge and also to pay a fine, There were originally three charges and on all of them the petitioner was convicted by the Magistrate, but the learned Sessions Judge, on appeal found that the second charge was not proved. The application is, therefore, concerned only with two charges the first of which is in respect of a sum of Rs. 168-13-0 and the second in respect of a sum of Rs. 234-11-0.

The first charge relates to freight of a consignment of sacks of betel nuts which was received by the petitioner at Ghorasahan Station on the 27th of August, 1926. The case for the prosecution is that the freight for this consignment amounting to Rs. 168-13-0 was paid on the 30th of August and was never remitted to the Head Office at Gorakhpur. The defence is that the freight was paid not on the 30th of August but on the 2nd of September and was remitted to Gorakhpur on the following day. The learned Sessions Judge has not placed reliance upon the merchant''s account book tendered in proof of payment on the 30th of August and he says that the charge depends principally upon whether the prosecution has succeeded in showing that the money was not sent to Gorakhpur on the 3rd of September. Now it is common ground that on the 3rd of September a sum of Rs. 1,086-5-0 was remitted to Gorakhpur. The only evidence which could have shown directly what this sum was composed of would have been the cash book, but that evidence has disappeared and no secondary evidence of the contents of the cash book has been produced. It was stated by the learned Assistant Government Advocate that there was secondary evidence of the entries in cash book, but by some mistake it was not put on the record. The prosecution, therefore, fell back upon the entries in the Foreign Inward Delivery Book and the Local Goods Delivery Book from which could be ascertained what sums of money had been received on the 2nd of September and, consequently, ought to have been remitted to Gorakhpur on the 3rd, and they also relied upon a note made by Mr. Baker, an Inspector of Railway Accounts (Ex. 24-a) compiled from these books; and from these sources a statement was prepared by the learned Magistrate which accounts for this sum of Rs. 1,086-5-0 except as to Rs. 31-13-0. There are, therefore, two defects in the proof given by the prosecution. In the first place, it has not correctly and fully accounted for this sum of Rs. 1,036-50. There was admittedly a sum of Rs. 31-13-0 which remained unaccounted for and, consequently, the calculation made by the Magistrate for aught we know, may have proceeded on a wrong basis altogether. Secondly, the evidence does not show that sums were actually remitted to Gorakhpur, but what sums under the rules ought to have been despatched, and it is idle to offer this as proof that a particular item admittedly received was not included in that remittance. The fact seems to be that the evidence on which alone this charge could have been established has disappeared and the proof is consequently incomplete.

The other charge relates to a sum of Rs. 231-11-0 on account of freight of a consignment of sacks of salt. This is charged as a temporary misappropriation, According to the prosecution the freight was paid for this consignment on the 19th of May and admittedly the money was remitted to Gorakhpur by the petitioner on the 24th of June. The petitioner''s case was that the freight on the consignment was not paid until the 23rd of June. Some of the entries in the Foreign Inward Delivery Book have been-altered and it is impossible to say what they are intended to represent; but the date of the recsipt of the goods has not been changed and there is no reason to suspect that it was not correctly entered as the 21st of May. If that be so, then the evidence of the merchant''s books that the money was disbursed on the 19th of May does not amount to proof that the payment was actually made on that date. The learned Sessions Judge has stated the arguments for and against relying on these books and, as I understand his judgment, he came to no definite conclusion. At all events the merchant had admitted before the Police that he was uncertain whether he had made the payment himself or through his gomashta, and it is quite possible, if his books are accepted, that the money was actually disbursed on the 19th of May to his gomashta, although the goods word not ready for delivery till the 21st of May. But it is quite clear that the money could not have been paid on the 19th. What the Courts below have proceeded upon in coming to the finding of fact on this point is, first the improbability that perishable goods like salt would have been left lying at the station for a month, and secondly, that no demurrage was charged. Now there is nothing to show that salt is so perishable as all that, and, in this case, there is a peculiar circumstance, namely, that the goods had been assigned by the original consignee to another purchaser. This may have led to some enquiry by the authorities at the station in order to satisfy themselves that the delivery was being made to, the proper party and it is possible that this caused delay and would equally excuse demurrage. There is no evidence on this point, but the fact of the assignment, to which the learned Sessions Judge has not alluded to in this connection, is evidently a relevant fact in connection with this charge. A further question is whether even if the facts be accepted as stated by the prosecution, they would amount to proof of criminal breach of trust. The learned Assistant Government Advocate relied on the decision in Emperor v. Tulshidas Chhaganlal 8 Bom. L.R. 951 : 5 Cri. L.J. 5 where money had been retained for more than three months. But in that case there were facts which clearly distinguish it from the present. The accused in that case after being dismissed by his master, had made a claim on his master for a sum of Rs. 9 on account of wages and had admitted liability to the extent of only Rs. 10 or Rs. 11 notwithstanding the fact that he had previously received and not accounted for the subject-matter of the charge which was a sum of Rs. 107-9-9. This act in itself was a clear denial in his possession of the money and was, therefore, direct evidence of conversion. In the present case there is nothing to show that the petitioner had converted the money to his own use. There was no falsification of accounts. The delay in making the remittance is a circumstance to be taken into consideration and it, may be if there is no explanation, prima facie evidence of dishonesty. But here there is the circumstance that there had been an assignment of these goods and, therefore, a possible explanation of the delay. In these circumstances it does not seem to me that the mere delay in making the remittance is evidence of anything more than a breach of the departmental rules.

I think, therefore, that neither of these charges has been established, and I would allow this application and set aside the conviction and sentence and direct that the petitioner be acquitted and released from bail. The fine if paid, will be refunded.

Jwala Prasad, J.

I agree.