The Public Prosecutor vs N.S. Sharma

Pandrang Row, J.—This is an appeal preferred by the Public Prosecutor, Madras, from the judgment of the Sessions Judge of South

Kanara acquitting one N.S. Sharma of the offence of criminal breach of trust by an agent punishable u/s 409, Indian Penal Code. The man had

been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 800 by the First Class Sub-Divisional Magistrate,

Mangalore Division. On appeal, he was acquitted by the learned Sessions Judge who dealt with the facts of the case at great length in his

judgment. The learned Sessions Judge appears to have come to the conclusion that the entrustment itself had not been proved beyond doubt. The

case for the prosecution was that certain goods, namely, Aniline Dyes, etc., had been sent by the Aniline Dyes and Chemical Company, Bombay,

to the accused in his capacity as manager of their branch at Mangalore. The learned Sessions Judge has found that the case was not proved that

the appellant was the manager of a branch and was entrusted as such with the goods of the company and apparently the learned Sessions Judge

thought that the defence of the accused that he had merely purchased the goods from the company as an ordinary customer and was only liable

from the point of view of civil law was more likely to be true than the case for the prosecution. It may be there is something to be said in support of

the view which found favour with the learned Magistrate. But one important fact is established by the evidence, namely, that the company itself

kept their accounts as if the accused was not the manager of a branch and as such entrusted with the goods of the company. While the ledger

accounts of other branches were shown in the name of the company, the account of the accused was kept in his personal name and there is no

separate account in respect of the alleged branch at Mangalore. In these circumstances, it is really impossible to say that the learned Sessions

Judge was wrong in coming to the conclusion that the prosecution had failed to prove the factum of entrustment to an agent.

Another reason why this appeal should not go further is that the trial before the Magistrate appears to have been contrary to law. The charge

against the accused in respect of which he was tried no doubt alleged that an aggregate sum of Rs. 757-4-9 was criminally misappropriated within

the space of twelve months, that is, between 3rd September, 1936 and 6th May, 1937, and the learned Magistrate thought that on this account u/s

222(2), Criminal Procedure Code, it would be legal to frame a charge in respect of such gross sum and to try him on that single charge though that

charge related to a number of items, namely, 12 in number. No doubt if a single charge can be justified, the trial could not be said to be illegal, but

if the single charge itself was one not permitted by law and the offences disclosed were really separate, the trial held could not be said to be legal.

Section 222(2) provides that

Where the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in

respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed,

without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of

Section 234:

Provided that the time included between the first and last of such dates shall not exceed one year.

In this case, however, the case for the prosecution and the evidence adduced in support of it are to the effect that only two sums of money,

namely, Rs. 103-12-0 and Rs. 70 collected from P.Ws. 4 and 11 respectively were alleged to have been misappropriated by the accused, while

the other ten items do not relate to money at all. They relate to goods supplied to the accused by the company and are covered by various invoices

in the names of P.Ws. 5, 7, 8, 9, 10, 11 and 12. The total of these ten items of goods said to have been misappropriated is Rs. 583-8-9. These

goods were delivered to the accused on different dates and it is alleged that he misappropriated the goods and covered up the misappropriation by

sending bogus invoices to the complainant on different dates. The case referred to in Section 222(2), Criminal Procedure Code, is a case in which

the charge is criminal breach of trust or dishonest misappropriation of money and it does not apply to a case of criminal breach of trust or dishonest

misappropriation of goods, and affords no justification for mixing up money and goods in the manner in which it has been done by the trial Court or

for framing a single charge in respect of the total of the cash said to have been misappropriated and the total value of the goods said to have been

misappropriated. The charge therefore was not one which was permitted by law, and if the charges had been properly framed, there could not

have been a joint trial according to law. In these circumstances, it seems unnecessary to proceed further with the appeal and have it argued on the

merits even if there is a case on the merits.

The prosecution was instituted at the instance of a private complainant and the amount involved is less than about Rs. 800. The private

complainant has his civil remedy in respect of the amounts said to have beer* lost and the interests of public justice do not seem to require that

there should be a further retrial of the accused in respect of what is alleged against him. He has been sufficiently harassed by the proceedings that

have already taken place and which ended in acquittal by the Sessions Judge. It would be, in my opinion, very undesirable that he should be further

exposed to a retrial in respect of the same matter.

The appeal is therefore dismissed u/s 421, Criminal Procedure Code.