Rajasabai vs M.S.K. Subbiah and Another

K.K. Mathew, J.—This is an appeal from an order of acquittal. The appellant filed a complaint against the 1st respondent before the Additional First Class Magistrate''s Court, Ernakulam, charging him with offences punishable u/s 403, 409 and 477A I.P.C. The case against him was that he was appointed manager of the Cochin office of the appellant company and in that capacity he received two cheques Ex. P-7 and P-8 from a customer of the company, cashed the cheques, and instead of crediting the proceeds in the account of the company misappropriated the same. The 1st respondent was found guilty of the offences under Sections 403 and 477A by the Magistrate and sentenced to pay a fine of Rs. 300/- for the offence punishable u/s 403 and Rs. 200/- for the offence punishable u/s 477A. He was acquitted of the charge u/s 409, since it has not been proved that he was the agent or manager of the Cochin office.

Counsel for the appellant submitted that it was open to the court below to have convicted the accused u/s 408 as the evidence would indicate that the accused was employed as a servant of the company and if he was so employed and entrusted with money of the company in that capacity and mis-appropriated the same he would be guilty of an offence punishable under that section. Section 408 is as follows:

Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either descript ion for a term which may extend to seven years, and shall also be liable to fine."

If the evidence would make out that the accused was employed as a servant and was entrusted m that capacity with property or dominion over property and committed criminal breach of trust in respect of that property it was open to the court below to have convicted him u/s 408. u/s 237 Crl. P.C., even though an accused is not charged with an offence, if from the evidence it is found that he has committed that offence, the court can convict him for the offence. Section 237 lf, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. In order that Section 237 may apply there must be no doubt about the facts which can be proved at the trial, the doubt must be a doubt as to the offence which would be made out by the facts which can be proved, and the doubt must be a doubt at the time of the framing of the charge. In other words, the provision of Section 236 must be satisfied before applying Section 237.

In this case the charge u/s 409 was on the assumption that the accused was the manager of the branch office of the company at Cochin. After the trial it was found on the evidence that the accused was only a servant employed by the company, that he did not fill the capacity of manager of the Cochin branch office, and that as a servant he was authorized to receive money on behalf of the company. In the complaint and in the sworn statement of the complainant the case was that the accused was employed as the manager of the Cochin Branch, but in the charge the allegation was that the accused was employed as a servant of the company and in his capacity as servant he was entrusted with the cheques, and that he was guilty of an offence punishable u/s 409. It was probably under a mistake that Section 409 was mentioned in the charge. The allegation of facts in the charge were such as if proved they would make out an offence u/s 408. I think the court below should have considered the facts proved at the trial and convicted the accused of the offence made out by the facts proved although the accused was not charged with that offence.

It was contended that it is not open to this court sitting in appeal from an order acquitting the accused of the offence punishable u/s 409 to maintain the correctness of the order and find him guilty of an offence punishable u/s 408. In other words, the argument was that Section 237 of the Criminal Procedure Code has no application in appeal, and so it is not open to this court to convict the accused for an offence punishable u/s 408 as there was no charge under that section. In support of this contention, counsel brought to my attention the ruling of this court reported in State v Pappachan. ITR 1960 Ker 153. There the court observed as follows:

We have also to observe that Sc. 236 and 237 are in their very nature to be availed of by the trial court and are inherently incapable of being availed by an appellate or revisional court.

and quoted the following observation of Desai J. in Mangal Singh v Rex: AIR 1949 All 599

It is the trying court and the trying court alone which can say whether it entertains any doubt on the question which of the offences are constituted by the facts which can be proved. It is only that court which can avail itself of the doubt when passing the judgment. It is not for another court, however superior it may be, to say that the trial court had or ought to have had a doubt on the question. A superior court, in the absence of anything on record, cannot imagine that the trial court had a doubt and cannot proceed to resolve it on that imagination.

I am not satisfied that this is a correct view of the matter, in view of the decision of the Supreme Court in Ramaswamy Nadar Vs. The State of Madras, . There, the Supreme Court held:

In an appeal against an order of acquittal the High Court has power under S. 423(1)(a), Criminal Procedure Code, to convert an order of acquittal into an order of conviction in respect of an offence other than that for which the accused was tried by the trial court and acquitted by it, by exercising the powers contained in Sc. 236, 237 and 238. The contention that though the powers under Sc. 236, 237 and 238 may be exercised by a trial court or even by a court of appeal exercising powers under Cl. (b) of S. 423(1), the High Court hearing an appeal under

S. 423(1)(a) could not exercise those powers cannot be accepted as there is no sufficient ground for so restricting the powers of High Court under S. 423(1)(a).

Under both the clauses (a) and (b) of section 423(1) the specific power to reverse the order appealed from, is there, but because there has been a conviction by the trial court or the court immediately below the High Court, the latter court is authorized specifically to alter the finding or the nature of the sentence in Cl. (b). In Cl. (a), after the High Court has decided to reverse the order of acquittal, it has been given the power to find the accused guilty, besides other powers enumerated therein. The words ''find him guilty'' in S.423(1)(a) are not limited to the offences with which the accused stood charged in the lower court and of which he was acquitted. It is open to the High Court to convict the accused of any offence disclosed in the evidence other than that with which he had been charged".

The decisions in AIR 1943 192 (Privy Council) , Ganga v The State AIR 1953 T.C. 466 and Pyli Yaccob v The State AIR 1957 All 678 are also to the same effect. It is to be regretted that the attention of the court was not drawn to these rulings. I therefore come to the conclusion, that the accused should have been convicted of the offence punishable u/s 408 by the trial court by applying the provisions of Section 237, if necessary. As the accused is proved to have been employed as a servant of the company and in that capacity he was entrusted with the cheques to be cashed and credited in the accounts of the company, but instead of doing that he cashed the cheques and mis-appropriated the amounts, he is certainly guilty of an offence punishable u/s 408. In this view, the order of acquittal, though technically correct, cannot be sustained. I set aside the order and convict the accused of the offence punishable u/s 408 I.P.C.

I do not think that the conviction of the accused for the offence punishable u/s 403 can stand, as on the same facts he has been convicted for the greater offence punishable u/s 408. Therefore, in the exercise of my suo motu revisional jurisdiction u/s 439 Crl. P.C., I set aside the conviction of the accused of the offence punishable u/s 403.

It was submitted on behalf of the accused that he is a young man, that he had not been previously convicted for any offence and that if he is released u/s 4 of the Probation of Offenders Act, 1958, he would behave well in future. It was also submitted that if a sentence of imprisonment is imposed he would lose his job. Considering the character of the offender and the circumstances of the case, I think, it is expedient to release him on probation of good conduct. His conviction u/s 477A I.P.C. and the sentence of fine for that offence will stand. I convict the accused of the offence punishable under S. 408 also, but release him on probation of good conduct on his executing a bond within one month from this date for an amount of Rs. 1000/- with two sureties each for a like amount to the satisfaction of the court below undertaking that he will be of good behavior for a period of three years and that he will attend the court, if called upon to do so, to receive the sentence. The fine ordered to be paid for the offence u/s 403, if paid, will be refunded to the accused.

The appeal is disposed of as above.