Ragho Prosad Gupta vs Emperor

Scroope, J.—The petitioner Ragho Prosad Gupta has been convicted by a First Class Magistrate u/s 408, I.P.C., at Purnea, and has been sentenced to rigorous imprisonment for one year, and this conviction was upheld by the Sessions Judge of Purnea.

The prosecution case was that as manager of a book-shop at Purnea known as "Anand Pustakmala," which belonged to one Misri Lal, he embezzled three sums of money, namely, Rs. 387-5-0, Rs. 277-8-0 and Rs. 70-5-9, being sums (paid to the firm by the Sadr Local Board for school books supplied. It is contended now before this Court in revisional jurisdiction that the relationship between Misri Lal, the complainant, and the petitioner was one of partnership and that this case is the outcome of a dispute as regards their respective liabilities, and that the conviction therefore is unsustainable. The deed on which the business is based has been produced in this case; and it appears that the complainant invested certain capital in the business of which the accused was the manager; and, so long as the money invested by the complainant was not realized in the shape of profit, the accused was not entitled to any share in the profits beyond his monthly remuneration. It appears then that in August of last year the parties fell out and on 11th August the complainant lodged a saneha before the police in which he distinctly alleges that he opened a partnership with the petitioner and he left the entire management of the firm in his hand; that he now suspects that the petitioner is misappropriating the firm''s money and that he will make a further charge to the police when he has time to audit the accounts of the firm; and on the very same day he apparently did get certain accounts of the firm from the petitioner and in return he gave him a receipt the important portions of which are as follows: he admitted that Ragho Prasad, the petitioner, had paid up all dues of every kind and that he remains no longer liable for any debt due to the firm: he further undertakes to file no criminal or civil case against the petitioner. Then, after the saneha, the petitioner filed a civil suit against the complainant manager and the latter put in a formal complaint to the police which led to the present trial. In the face of the receipt (Ex. A) which amounts to a clear acquittance of the petitioner for all dues to the firm I do not understand how the complainant can now claim to hold him criminally liable. It is argued by the learned Assistant Government Advocate that this receipt had been given in order to get the the books of the firm from the petitioner; in other words, it appears that, according to the showing of the prosecution, this receipt was a subterfuge. But it is apparent that it was from the books made over at that time that these alleged defalcations were discovered. It is contended that they were discovered in consequence of enquiries made at the Local Board office; but it does not appear to be so on the evidence; and it would appear from the complainant''s evidence that he discovered them from the rokar which was made over by the petitioner. Had petitioner been deliberately embezzling the partnership funds he would have taken care that no incriminating entries appeared in them when he made them over to complainant. His case was that he had supplied money out of his own pocket and had therefore taken these amounts to reimburse himself, and he produced one witness to prove that he had borrowed a large sum of money for the purpose of the shop. This witness was disbelieved by the Courts below; but having regard to the whole of the circumstances, and especially of the receipt (Ex. A.), I am not satisfied that any deliberate fraud on the part of the petitioner had been made out. It seems to me to be a case of a claim and a counter claim which has been brought to the criminal Court for settlement when it ought to have been taken to the civil Court. I would therefore set aside the conviction and the sentence and acquit the petitioner.

Ross, J.

I agree.