Vasudevan Thambi and another vs Maria Antoni and another

Ratnarel Pandian, J.—P. Ws. 1 and 2 in C.C. No. 2 of 1973 on the file of the Court of the Sub Magistrate, Eraniel, Kanyakumari district,

have preferred this revision petition challenging the order made by the learned District Magistrate (J), Kanyakumari at Nagercoil, in C.A. 121 of

1973, acquitting the first Respondent-accused after setting aside bis conviction u/s 408, I.P.C. passed by the Judicial II Class Magistrate, Eraniel.

The crux of the indictment as against the first Respondent-accused was as follows.- The Respondent was the Headmaster of the Aided High

School at Orappanavilai, the Manager of which is P.W. 1. P.W. 2, who is the son of P W.1 was the corRespondent of the said school. According

to the prosecution, the Respondent property entered the school on 7th November 1969 and acted as headmaster thereof in violence of the order

of the suspension made against him by the Corresponded P.W.2, collected a sum of Rs. 1,187,75 during the period from 25th May 1970 to 8th

July 1970 towards admission fees. Games fees. Library fees and Miscellaneous fees, from the students of the VI to XI standards of that school,

through the respective class teachers and that out of the said amount and the opening cash balance of Rs, 2.3.90, he misappropriated a sum of Rs.

1053.88 for his own use and thus committed criminal breach of trust, in respect of that amount and had left only a balance of Rs. 377.66 in the

cash chest of the school when he ceased to act as Headmaster of the School on 8th July 1970. As per the evidence of P.W.1 the Respondent-

accused was served on 8th July 1970 with an order of interim injunction made by this Court restraining the Respondent from entering the school,

and from the following day onwards, i.e., from 9th July 1970, he did not attend the school.

To substantiate its contention, the prosecution examined eighteen witnesses on its side, of whom P.W. 18 is the Investigating Officer. P. Ws. 1

and 2. as mentioned above, ware the respective Manager and Correspondent of the school. P. Ws. 3 to 13 and 17 were the several class

teachers, who have been examined to speak about the collection of special fees from the students and the payments thereof to the Petitioner. P.W.

14 is the clerk in the High school in charge of writing of accounts. P.W. 15 is the advocate-Commissioner appointed in a civil suit O.S. 170 of

1970 filed by P. Ws. 1 and 2 against the Petitioner before the Additional District Munsif''s Court, Padmanabhapuram, for the purpose of taking

inventory of the articles in the school. According to him, he found a sum of Rs. 377 66 in the iron safe of the school on 15th January 1971 besides

certain other books of account and pass books and other articles. The District Educational Officer, Thakkalai, who is examined as P.W. 16,

would say that he inspected the school on 21st April 1971 and made a report Ex.P 39 stating that a total sum of Rs. 1,188.50 towards the

collection of admission fees, games fees, library fees and miscellaneous fees collected from the students, had not been brought to the account of the

school. Thus it is the case of the prosecution that the sums so collected from the students had not been entered in the books of account of the

school and in fact no account has been kept by the Respondent No. 1 in respect of these collections or the spending thereof, but only a sum of Rs.

377.66 was found in the cash chest by P.W. 15 when he took the inventory and therefore the Respondent had committed criminal breach of trust

in respect of the balance of Rs. 1053.88.

The Respondent-accused resisted the charge of the prosecution before the trial Court, contending that he was not responsible for the

maintenance of the accounts, that it was the duty of P.W. 14, the clerk, who is close relation of P. Ws. 1 and 2, that the Respondent could not

deposit the amount in the Banks in view of the embargo placed by the Management of the School on the Respondent No. 1 operating Bank

account, that the Respondent has spent these amounts in dispute and some more amounts belonging to him for the maintenance of the school and

for the purchase of the necessary articles for the day-to-day administration and running of the school since P. Ws. 1 and 2 were not visiting the

school regularly, and that he has deposited a sum of Rs. 232 20 in the Savings Bank Account in the Muttom Post Office. According to him, the

case had been filed against him by P. Ws. 1 and 2 on account of some misunderstanding over his conduct as the Headmaster of the School, as he

was not cooperating with the Management regarding their treatment of a teacher by name Kanda-swami. A statement of account was also filed by

the Respondent as part of his statement u/s 342, Crl.P.C., before the trial Court, cataloguing the various items of expenditure incurred by him

regarding the school administration. He also examined D. Ws. 1 to 3 to speak about certain items of expenditure sat out by him in his statement.

The trial Court found that the respondent had collected the sum in dispute from the students through several class teachers as special fees and

not as amenity fees and that the Respondent had to deposit these amounts in the Savings Bank and to withdraw the same as and when required,

depending on the necessity for meeting oat the expenses of the school, and finally found that the Petitioner had utilised these amounts for a purpose

other than the one for which the amounts were collected, and thus he interfered with the administration of the Management. The trial Court

disbelieved the evidence of D. Ws. 1 and 2 as completely unworthy of any credit and rejected the evidence of D W. 3 as interested. In para 33 of

its judgment ,the trial court found: ""As per G.O. Ms. 378, Education dated 11th March, 1970, an amount of fee of Rs. 5 per pupil per annum (sic)

may be collected by the Headmaster and made over to the Management for the maintenance of the school. The managements of private aided

secondary schools are permitted to incur expenditure from out of the collections made by way of amenity fee only for the maintenance of the

schools. In the present case, the amenity fee has not been collected by the accused. It is the duty of the Management to incur expenditure such as

repairs, maintenance of buildings, furniture, postage, textbooks and sanitary. But, the accused interfered with the administration of the Management

of the school. Therefore, the accused dishonestly used the special fees collected by him in violation of the directions of the Rules.

Finally, the trial Court found him guilty u/s 408, I.P.C., and released him u/s 4(1) of the Probation of Offender Act Aggrieved by the judgment of

the trial Court, the accused preferred an appeal before the District Magistrate, (J) and the learned District Magistrate, after elaborately discussing

the evidence adduced on the side of the prosecution, set aside the conviction against him and acquitted him, holding that ""the prosecution has

totally failed to prove any dishonest intention on the part of the Appellant or that the Appellant had committed criminal breach of trust in respect of

any portion of the special fee collection in question.

Commenting on the observations made by the learned Sub Magistrate that the accused had interfered with the administration of the

Management, the lower Court held that the Respondent''s ""interfering with the administration of the school by the Management has no relevance

whatever for the charge u/s 408 of the I.P.C. against him"". The State has not preferred any appeal, but only P. Ws.1 and 2 now have referred this

revision petition, challenging the order of acquittal.

Now, I shall refer to certain decisions of the Supreme Court dealing with the extraordinary discretionary power vested in the High Court in

interfering with the order of acquittal at the instance of the private party, while sitting on its revisional jurisdiction u/s 439 of the old Code,

corresponding in S. 401 of the new Code.

8 In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, it has been held that the interference of the High Court with a finding of acquittal in

revision would be justified only in the following cases, viz., where the trial court has no jurisdiction to try the case but has still acquitted the

accused, or where the trial court has roughly shut out the evidence which the prosecution wished to produce, or where the appeal court has

wrongly held evidence, which was admitted by the trial court, to be inadmissible, or where material evidence has been overlooked either by the

trial Court or by the appeal court, or where the acquittal is based on a compounding of the offence which is invalid under the law. It has also been

held that these and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably

interfere with the order of acquittal; in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do

directly in view of the provisions of S. 439(4). Following and amplifying the above observations, it has been held in Ishwarlal Girdharlal Joshi etc.

Vs. State of Gujarat and Another, hat although the list of grounds given in the said decision is not exhaustive of all the circumstances in which the

High Court may interfere with an acquittal in revision, it re(sic) obvious that the detect in the judgment under revision must be analogous to those

actually indicated by the Supreme Court. Then their Lordships of the Supreme Court, in Akalu Ahir and other v. Ramdeo Ram 1974 M.L.J. Cri.

168 have, after re erring to all the leading decisions on this point including the above two decisions, held that the power of revision conferred on a

High Court by Section 439, read with Section 435 Crl.P.C., is an extraordinary discretionary power vested in the Superior Court to be exercised

in aid of justice in other words, to set right grave injustice; that the High Court, when approached by a private party for exercising its power of

revision from an order of acquittal, should refrain from interfering except when there is a glaring legal defect of a serious nature, which has resulted

in grave failure of justice, and that the power being discretion any it has to be exercised judicially and no arbitrarily Next, I may refer to the

decision in Satyendra Nath Dutta and Another Vs. Ram Narain, for the proposition that where the judgment of the Sessions Judge did not suffer

from any manifest illegality and interests of justice did not require the High Court to interfere with the order of acquittal passed by the Sessions

Court, the setting aside of the acquittal and ordering a re-trial is a transgression of the narrow limits of the revisional jurisdiction u/s 439(4).

Bearing In mind the severe limitations placed on this Court''s power to interfere with an order of acquittal, that too at the instance of a private

party when the State has not preferred any appeal, I shall now see whether there are any sufficient grounds made out in this case for such an

interference.

Mr. S. Chella8waml, appearing for the Petitioner, contends that the lower appellate Court has overlooked some material piece of evidence,

which act of the Court has consequently resulted in manifest illegality and gross injustices and therefore this Court should interfere with the findings

of acquittal made by the lower appellate Court, in this revision petition filed by P. Ws 1 and 2. The contentions raised by Mr. Chellaswami are as

follows: (1) As per G.O. Ms. 378 (Education) dated 11th March, 1970, the Headmaster has the power to collect the admission fees, games fees,

library fees and miscellaneous fees and in addition to that, the Government by that Government Order, has empowered the Headmaster to collect

the amenity fees to a maximum of Rs. 5/- per annum. The said order issued by the Government reads as follows:

The Government direct that an amenity fee upto a maximum of Rs. 5/- (Rupees five only) per annum be levied from all the pupils in the secondary

schools in Standards VI to VIII and IX to XI under all managements including Government. Local Body and Private Aided, subject to the

following conditions:

(i) The levy of amenity fee should be made in such a way that the total amount of special fees including the amenity fee does not exceed the present

total amount of special fees....

(ii) As there will not be any additional levy the amenity fee shall be collected from all pupils and no exemption need be granted to any student.

(iii) The heads of Aided Secondary Schools are permuted to hand over the entire collection under amenity fee to the correspondent of the school

conferred under proper receipt and the latter should maintain separate accounts for the expenditure incurred from out of the collection, which

should be produced for scrutiny by the departmental audit every year. The heads of Government and Municipal institutions are permitted to open

personal accounts in the Banks or Savings Bank account in the Post Office in their Official designation only....

Relying of the above order, Mr. S. Chellaswami would contend that the School in this case being an aided Management High School, the

Respondent-accused ought to have collected the amenity fee from every pupil and handed over the same to the Management which in turn should

maintain separate account for the expenditure incurred from out of the collection. But, the Respondent collected a total sum of Rs. 1,187.73 as

special fees, viz., towards admission fees, game fees, library fees and miscellaneous fees, during the period from 25th May 1970 to 8th July 1970,

and had not deposited the same either into the Bank or the Savings Bank Account or the Treasury, as provided by the Rules; but out of the said

amount and the opening cash balance of Rs. 243.90 totalling Rs. 1,431.63 he has converted a sum of Rs. 1.053.88 (sic. it should be Rs.

1,053.99) for his own use. Thus be has dishonestly misappropriated or converted to his own use that property, in violation of the directions of law

prescribing the mode in which said trust is to be discharged or any legal contract, express or implied, which he has made touching the discharge of

such trust, and thus as committed the offence of criminal breach of trust within the ambit of Section 408, I.P.C. (2). The Respondent is directed to

collect an amenity fee upto a maximum of Rs. 3/- under the order mentioned above, and hand over the same to the correspondent for meeting the

essential expenditures such as repairs, maintenance of buildings, furniture, rent for the school buildings and playgrounds taxes, contingencies, etc.

But, the Respondent has not collected this fee, but instead collected only the special fees and converted the same for his own use as mentioned

above. Therefore, it is not open to the Respondent to spend the amount collected by him as special fees, for the expenditure such as construction

of the urine shed, almyrah for the school, painting of the walls, furniture etc., since the amount collected by him is not an amenity fee. On this

ground also he has violated the directions of law prescribed by the above Governments Order and has committed the offence under S. 408, I.P.C.

(3) the lower appellate Court has failed to apply its mind while assessing the evidence to find out whether there was a criminal intention on the part

of the Respondent in spending the amount for a purpose other than the one for which it was intended.

Coming to the first point raised by the learned Counsel, it is the common case that the Headmaster collected the special fees, as now put forth

by the prosecution, from the pupils of the said school. But, the Respondent would contend that since the Management, on account of the litigation

between them, gave him trouble, he spent his own money, in addition to the money collected by him, for the facilities of the school and built a urine

shed, purchased almyrahs, painted the walls and furniture, by maintaining a separate account for the same. He purchased all the necessary articles

required for the administration of the school from 16th October 1969 to 25th May 1970. In support of his contentions he filed a separate list for

the expenditure incurred by him, totalling Rs. 1,417.16, and a pass book bearing the number N.F.P.3-96123 of Muttom Post Office, along with

the statement, to show that be had deposited Rs. 232.20 in the Savings Bank Account. Further, he also filed receipts for purchase of games

articles for the school, which find a place in the Stock Register. Mr. Chellaswami, appearing for the Petitioner, did not seriously contest the case of

the defence that the Headmaster had purchased the articles and had spent the amounts as alleged by him. But, his contention is that the amount

collected by him by way of special fees was not intended to be spent by the Headmaster and his action in spending the amount without handing it

over to the Correspondent is in violation of the directions contained in the Government Order. The trial Court, in para.33 of its judgment, has also

observed that the Headmaster has not collected any amenity fee, which alone could be sent for the maintenance of the school and that the conduct

of the Respondent in spending the amount for the maintenance of the school would be tantamount to interfering with the administration, of the

management and therefore the Respondent has dishonestly used the special fees collected by him, in violation of the Rules. The lower appellate

court, in para-19 of its judgment, has held that the Respondent herein had satisfactorily explained that he met the items of expenditure mentioned in

the statement of account from the special fee collections effected by him. After going through the evidence and the relevant records, I am in full

agreement with the finding of the lower appellate Court that the amount collected has been spent for the various items of expenditure, as put forth

by the Respondent.

Now, the question is whether by his conduct, the Respondent-accused has committed any offence of criminal breach of trust. Section 403,

I.P.C., gives the definition of ""Criminal breach of trust"". Before a person can be convicted of criminal breach of trust, it must be proved by the

prosecution firstly, that there was an entrustment of property or a dominion over property; secondly, that there was dishonest misappropriation or

conversion by a person to his own use of that property or that there was dishonest use or disposal of that properly in violate on of any direction of

law prescribing the mode in which such trust was to be discharged, or of any legal contract, express or implied, which he has made, touching the

discharge of such trust, or that be wilfully suffered any person to do so. It is well-settled that even if a person is required under rules to deposit the

amount entrusted, either in the Treasury or in the Bank or in the Post Office, as the case may be the failure to do so would not by itself amount to

the offence or criminal breach of trust, unless it is proved that there was dishonest misappropriations or conversion or dishonest use or disposal of

the property, etc., The element of ""dishonesty"" should also be proved. If a person, after acquiring dominion over such property for a limited

purpose, imprinted with a legal duty or contract, not to spend it otherwise, spends it in violation of such a duty then he may be guilty of this offence

provided he has got the criminal dishonest intention to do so. The question in such a case is: Did the accused dishonestly misappropriate the

property or did he convert it to his own use or did he dishonestly use or dispose of the property in violation of any direction of law prescribing the

mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust,

or did he suffer any person so to do? These acts imply the violation of (1) a legal duty or (2) a legal contract or (3) criminal negligence, enabling

some other person to violate such legal duty or legal contract. But, the mere violation of such a duly or contract by itself is not criminal unless it was

at the same time dishonest. Therefore, mens rea constituting the criminality, should consist of dishonesty and violation of any legal or contractual

obligation-In other words mere violation of law or a legal contract is, however, only one element for consideration. But, the essential and primary

element is dishonesty. The were ''dishonesty'' is defined in Section 24 I.P.C. which reads that whoever does anything with the intention of causing

wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly. Therefore, the intention under this section must

be to cause wrongful gain or wrongful loss to a person. Section 23 of the I.P.C defines what in wrongful gain and what is wrongful loss. In the light

of the discussions, we have to see from the evidence on record as to whether there was any dishonest intention on the part of the Respondent to

cause any wrongful gain or wrongful loss.

Regarding the non-deposit of the collections into the Bank as directed by the circular issued by the District Educational Officer, Thackalay,

under Ex. P-18 directing the respondent to deposit all the special fee collections into the Savings Bank account immediately after the collections

are made permitting the Respondent to withdraw the amount as and when required according to necessity .the evidence of P.W.14, the clerk of

the school, who is none other than the sister''s son of P. W. 1 shows that P. W. 1 had informed ail the Banks that the Respondent could not either

deposit (sic) the money in or withdraw the money from, any Bank consequent on which the Respondent was disabled from depositing the money

into the Bank or withdraw the same. Further, P.W.1 has also admitted n cross-examination that he had intimated the Bank, Post Office and

Treasury that the Respondent should not open or operate any account in the name of the school in 1970 and 1971. Eventually, this was done by

the Management in view of the deep animosity that prevailed between the Management and the Respondent. However, in view of the admissions

made by P. Ws. 1 and 14, it is clear that the Respondent could not have opened any account and deposited the collections and as such he was

unable to carry out this directions given cinder Ex.P.-18. I may point out here that there is no evidence that the Respondent without depositing the

amount, had spent it with the dishonest intention viz., with the intention of causing wrongful gain or wrongful loss to any person. Under these

circumstances, I am of the view that the observations of the lower appellate Court that the non-deposit of the special fee collection by the

Respondent in the Savings Bank cannot militate against the Respondent, is justified. P.W.16, the District Educational Officer, Thackalay, though

had stated in the chief-examination that no account bad been maintained after 1st April, 1970 in the school, would admit In the cross-examination

that he has referred only to the cash books. P.W. 14 was the clerk of the school and it was his duty to regularly maintain the cash book. As I have

mentioned supra P.W.14, being the sister''s son of P.W. 1, had shirked his responsibility in maintaining the cash book and thus given room for this

complaint. Under these circumstances, the non-maintaining of the cash book alone relating to the special fees from 1st April 1970 to 21st April,

1971, on which date P. W. 16 visited the school, is due to the failure of duty on the part of P.W.14 for which the Respondent cannot be held

answerable. Moreover, it stands to reason that the Respondent, who is the Headmaster, could not have taken any action against P.W.14 for his

inaction in maintaining the cash book, since there was no good relationship between the Management and the Respondent. Therefore, 1 am of the

view that no adverse inference can be drawn against the Respondent and clamp him with the responsibility for the non-maintenance of the cash

book.

Some of the witnesses examined on the side of the prosecution have themselves unequivocally admitted that the Respondent in his capacity as

Headmaster of the school bad purchased some articles for the school during the relevant period in question. The evidence of P. Ws. 4 to 6

supports the statement of expenditure filed by the Respondent along with the statement u/s 342 Code of Criminal Procedure There was a strike in

the school in October 1969, as admitted by P. W. 6. The defence of the Respondent that be used the money for the purchase of the articles out of

necessity for the proper maintenance of the school cannot be viewed with suspicion, as he has come forward with this defence even at the earliest

point of time. There is not even no iota of acceptable evidence that the Respondent had spent this amount for his own use. Nor is there any

evidence to show that the Respondent had any criminal intention to cause wrongful loss to the Management. Further, as rightly pointed out by Mr.

K. Alagiriswami, learned Counsel for the Respondent, no specific evidence has been adduced by the prosecution to show under what specific

head that special fee collections should be spent by the Respondent. Ex.P-17 also does not throw any light on this matter. It is the admission of

P.W 2 in his cross-examination that there is no specific rule as to what amount should be spent out of the special fee collection. Mr. Chellaswemi

had drawn my attention to a decision of this Court in Dewasikhamani Asari Vs. The Crown, wherein Jackson, J. has held that a fair presumption of

misappropriation can be drawe unless the accused explains his action. But, the facts of the said case show that a court amin collected a large sum

of money and did not pay it into the Court until five months had elapsed. Having regard to those circumstances only, the court held that a

presumption could be drawn against the accused unless he explained his action. But, in the instant case, there is ample evidence to show that the

amount collected by the Respondent has been spent by him for the facilities of the school, P.W. 2 himself in his evidence states that the

Headmaster has got authority to collect the special fees and spend the same. Mr. Alagiriswami relied on the decision in Mathura Prasad and

Another Vs. Emperor, wherein a Division Bench of the Patna High Court has held that it was the dishonest intention which was essential for the

commission of the offence of criminal breach of trust, and whether wrongful gain or loss actually resulted was immaterial.

For the above discussion, I bold that the prosecution has not proved, or rather has failed to prove, that the Respondent has committed criminal

breach of trust in respect of the special fee collections in question or any part thereof so as to bring the action within the ambit of Section 405,

I.P.C.

In the result, the revision petition is dismissed.