Ram Khelawan Thakur vs Emperor

Atkinson, J.—The petitioner, Ram Khelawan Thakur, seeks by this application to have his conviction set aside as originally pronounced by the Sub-Divisional Officer, Mr. Owen, pursuant to his order dated the 5th May 1919, which was affirmed on appeal by the learned Sessions Judge of Muzaffarpur on the 28th May 1919. The accused was charged u/s 406 of the Indian Penal Code with the offence of criminal breach of trust. The trial Court found the accused guilty; and on appeal the Sessions Judge affirmed the conviction of the accused, and he awarded him four months'' rigorous imprisonment coupled with payment of a fine of Rs. 120.

Mr. Manuk, who appears on behalf of the petitioner, contends that upon the evidence adduced by the prosecution the charge of criminal breach of trust cannot be in law sustained.

It would appear that one Bhageloo brought a criminal charge against four persons by the name of Misser for an alleged offence u/s 325 of the Indian Penal Code. While the proceedings were pending against these four persons at the instance of Bhageloo a Panchait was called, and the Panchait agreed to get the assent of Bhageloo to a compromise upon the condition that accused should pay to Bhageloo the sum of Rs. 50 as compensation in respect of the injuries which he had sustained, arising out of the assault which had been committed upon him by such accused persons. Bhageloo at the time that the compromise was arrived at by the Panch was in Sitamarhi Hospital, but it was taken for granted by all the members of the Panchait that Bhageloo would accept whatever terms the Panchait agreed upon. Accordingly on the following day the parties came to Sitamarhi and brought with them the money with a view of getting Bhageloo''s assent to the terms of the com-promise arrived at by the Panch. The accused in the proceedings u/s 325 accompanied by a person called Raghu Nath Misser also went to Sitamarhi, interviewed Bhageloo and Bhageloo verbally assented to the terms of the compromise which had been proposed and agreed to by the other parties at the instance of the Panch; and it was suggested at the time that it would be desirable that there should be a petition in writing stating the terms of the compromise and that such petition should be signal by Bhageloo. It is stated by various witnesses on behalf of the prosecution that Bhageloo requested Raghu Nath Misser, who was to pay the money by way of compensation for the injuries which Bhageloo sustained, that the same should be paid to the petitioner as agent on behalf of Bhageloo who was then in bed in hospital.

After Bhageloo had been interviewed, and while the petition of compromise was being prepared in a written form, Raghu Nath paid to the petitioner Rs. 50, being the amount of compensation assessed by the Panch to be paid to Bhageloo. When the compromise was embodied in the form of a petition and taken to Bhageloo for "signature, Bhageloo refused to sign it; although his agent Ram Khelawan Thakur, the petitioner, had at the time already received Rs. 50 which at the request of Bhageloo had been paid and entrusted to him.

It is upon these facts that the petitioner has been prosecuted for criminal breach of trust. The criminal breach of trust relied upon is that the petitioner failed and omitted to return to Raghu Nath Misser the money which he had paid and entrusted to the petitioner as agent on behalf of Bhageloo, his principal. There is no suggestion of any breach of trust (between the petitioner and Bhageloo, his principal.

The Crown case is based upon an alleged entrustment or entrusting of the sum of Rs. 50 by Raghu Nath Misser to the petitioner. I fail to see myself on the evidence, which I have read very carefully, anything to suggest any entrustment by Raghu Nath Misser to the'' petitioner as trustee or in trust for Raghu Nath Misser. There was no doubt the giving of a sum of money by Raghu Nath Misser to the petitioner as agent for a disclosed principal, which constituted no more than a payment of a debt alleged to be due to the principal. It was clearly intended by the terms of the compromise that Raghu Nath Misser should pay the sum of Rs. 50 to the petitioner; and that the petitioner was to receive the same on be-half of his known principal; and that upon receipt by the petitioner of the money so received the same became the property in law of Bhagaloo who was the owner thereof. But there was no express entrustment to the petitioner of any moneys in trust for Raghu Nath Misser or any of the accused persons charged u/s 325 proceedings at the instance of Bhageloo.

When the compromise failed or fell through by reason of the fact that Bhageloo declined to sign the written petition of compromise, it may be that according to Civil Law a constructive trust would be created or arise by implication of law, whereby the petitioner might be deemed to hold the money he received in trust for the person who paid it to him upon a failure of consideration to support the original contract. By Civil Law I apprehend under such circumstances that the form of action which could be instituted would be for money had and received to the use of and on behalf of the person from whom the money was received. Therefore, though one might contend that the law created a constructive trust as against the petitioner at the suit of Raghu Nath Misser in respect of which he'' might be made answerable civilly in an ordinary civil suit, yet the petitioner is not amenable for any offence against the criminal law.

The question which I have to consider is whether upon the evidence there has been an offence committed within the meaning of Section 406 read with Section 403 of the Indian Penal Code. Section 406 is general in form and simply avers that '' whoever commits a criminal breach of trust shall be punished with imprisonment." The important section, however, is Section 403, which defines criminal misappropriation of property. Section 403 says ''Whoever dishonestly misappropriates or converts to his own use any moveable property shall be punished with imprisonment."

Therefore the gist of the criminal offence of breach of trust is dishonest mis-appropriation or the conversion by one to his own use of the property of another which has been entrusted to him.

Now I have perused the evidence in this case, and I fail to detect, so far as the prosecution case is concerned, any evidence from which the inference could be fairly or legitimately drawn that the petitioner here dishonestly misappropriated the sum of Rs. 50 which he received or that he converted the same to his own use.

The evidence of P. W. No. 2 and of P. W. No. 5 leaves me under no doubt as to what happened. It may be desirable to refer to one or two paragraphs of their evidence.

P.W. No. 2 says: "After I had fair copied the petition Kandu Babu said that Bhageloo''s thumb impression should be taken on it. Bhageloo was in hospital. Accused was looking after the case for him. So we went to hospital," and a little further on he says "Raghu Nath asked the accused to give back the money. The accused said he would not give it back. He went off next towards the Bazar, and we went to Kandu Babu."

Now P. W. No. 2 also says in cross-examination that "Bhageloo had said that the money should be paid to Ram Khela-wan and upon that basis, he, Raghu Nath, had given the money to the petitioner."

P.W. No. 5 deposes to the fact that he was present at the Panchait, the terms were settled at the Panchait, and the following day Raghu Nath and others came to Sitamarhi. Then he states: "They met the accused in the Kachhari. The compromise petition was written after Rs. 50 had been paid to this accused by Raghu Nath in his presence. He, Raghu Nath, and the accused and two Moharrirs went to the hospital"; after the parties went into the hospital apparently this witness came out and remained outside. When the others came out of the hospital it was ascertained "that Bhageloo refused to put his thumb impression. Raghu Nath asked accused to pay back the Rs. 50. But the accused did not do so, and went off."

Further on this witness says: "The money was paid to Ram Khelawan because he was acting on behalf of Bhageloo." "We gave the money to Ram Khelawan as we had asked Bhageloo, and he had said that the money should be paid to Ram Khelawan, and we did not suspect any dishonesty."

Therefore, the moment that the petitioner received Rs. 50 he received it on behalf of Bhageloo, and he must as principal, be answerable for the acts of his agent acting within the scope of his authority. Mr. Manuk very fairly suggests that it would not be possible in this case to sustain a prosecution as against Bhageloo for criminal breach of trust. Clearly it would not.

There may be in law an implied trust as between the petitioner and Raghu Nath that will be sufficient to enable Raghu Nath to maintain a civil suit against the petitioner to recover the money he claims. Such an obligation or trust would not, in my opinion, create an offense punishable by the criminal law as a criminal breach of trust, or amount to criminal misappropriation or conversion of the property of another.

In the absence of clear and precise proof of the offence charged the accused ought not to be convicted.

It appears to me, the reasoning of the decision reported as Nga Po Ywet v. Emperor 21 Ind. Cas. 322 : 7 Bur. L.T. 200 : 15 Cri.L.J. 452 : 7 L.B.R. 278 (F.B.) applies in principle to the facts of this case.

In my opinion the learned Judge in appeal has failed to bear in mind the proper legal consideration which should have been present in weighing and considering the evidence.

I do not think on the evidence adduced by the prosecution that it can be fairly said that the petitioner was guilty of criminal misappropriation or of criminal conversion of the money he received to his own use.

Mr. Manuk admits that although the petitioner may be liable civilly he is not liable criminally.

In my view he is not liable criminally, but he properly would be liable civilly.

Thus to avoid any future and unnecessarily litigation between the parties, Mr. Manuk confesses that this client is willing to pay to Raghu Nath Misser within ten days from this date the sum of Rs. 50, which he admits having received from him under the circumstances aforesaid.

Accordingly I set aside the conviction of the accused pronounced by the learned Sub-Divisional Officer, dated the 5th of May 1919, and also the conviction in appeal affirmed by Mr. Boyee, dated the 28th May 1919.

The fine, if paid by the accused, shall be refunded.