Yeshwantrai Durlabhji Trivedi vs The State

The accused, Yeshwantrai Durlabbji Trivedi, who was a cashier in the Surendranagar Office of the Saurashtra Food Committee, was charged with the offence of criminal breach of trust as a servant u/s 409, Penal Code, in respect of a sum of Rs. 50,005-3-0. He was tried by the Sessions Judge, Jhalawad, convicted of the said offence, and sentenced to 3 years R.I. and a fine of Rs. 15,000 and in default of payment of fine to undergo 2 years further R.I.

The prosecution case in substance was that on 24th November 1948, the accused was in charge of a sum of money totalling Rs. 62,182-2-10. Out of this amount, Rs. 22,182-2-10 was the opening cash balance on that day in the possession of the accused. On the morning of that day, the Food Officer, Bhanurai, who was his superior officer, had given a cheque for Rs. 20,000 to the Food Inspector, Bhanushanker, with instructions to cash it from the Central Bank of India, and pay the amount to the accused who was to deposit the same in the Jhalawad Treasury on the same day. Accordingly Bhanushanker, after cashing the cheque, had given the said amount to the accused. Some time thereafter on the same morning, Bhanurai gave another cheque for Rs. 20,000 on the Central Bank of India to the accused himself, with instructions to cash it and deposit that amount also in the Jhalawad Treasury. The accused went to the Bank, cashed she cheque, and returned to his office with the money at about 1-30 p.m. on that day. There-after according to the prosecution case, the accused had closed the only door of the entrance to his room, and had also chained it from inside. Before doing so, he had given an order to bring pan for him, to the peon Ramji, who was going to get tea for the clerks. When the peon returned he knocked at the accused''s doors, and shouted for him, but as he did not receive any reply, he went to the back portion of his room to the window, which was open. He climb-ed into the window, and saw the accused lying on the floor. He then went into the room, unfastened the chain from inside, and informed the clerks sitting in the adjoining room that the accused was lying on the floor. The clerks went into the accused''s room, and sprinkled water over him, and began to fan him. The Food Officer, Bhanurai, was also informed, and he arrived in the room of the accused. The accused did not say anything except the words "Saheb, Saheb", and stated after a short time that he had been injured. Thereupon a private practitioner, Dr. Buch, was sent for. He found the accused being nursed by the clerk Ratilal and others. On the Doctor asking the accused what had happened to him, at first he did not give any reply, but put his hand below the chest to show that there was some pain in his stomach. The Doctor on examining his body found every thing normal, and did not see any sign of injury on his body. The Doctor said that the accused was not suffering from any disease, and then went away. When the clerks asked the accused what had injured him, he replied that some one had come through the window beat him, and took away the money. Some time later, the accused said that two persons had come and robbed him. Some time, thereafter, the accused was taken to the Hospital, where the Medical Officer, Dr. Jani, examined him, and he found his breath as well as temperature normal, but he saw 3 fresh abrasions on the back side of his body. He gave him an injection and some other medicine. The prosecution case further is that when the clerks entered the room, a bundle of currency notes was lying near the accused, and a currency note of Rs. 5 and some coins ware lying on the table. Bhanurai directed the Chief Accountant to check up the monies in the cash box, and also those that were laying scattered on the table. The Chief Accountant reported that Rs. 50,000 were missing. At first Bhanurai did not suspect the accused, and be gave the opinion that the accused, according to him, had been robbed by somebody of the amount, but later on as his suspicions were aroused, he mentioned to the Police that the accused, either alone or along with some other persons, had removed some of the cash from the cash box. After the Police Investigation was over, the accused was charged with the offence u/s 409, Penal Code,

The accused in his written statement before the Committing Magistrate admitted the correction of the cash balance of Rs. 20,182-2-10 in his possession. He also admitted having received the two amounts of Rs. 20,000 each on that day, the first from Bhanushanker and the other having been brought by himself from the Central Bank. According to him he had taken the first amount of Rs. 20,000 along with the duplicate Chalans to the Treasury but the Cashier of the Treasury made a sign, which he interpreted to mean that he should come later on. Ho, therefore, returned to his office. Thereafter Bhanurai gave him the second cheque of Rs. 20,000. As he was proceeding to the Bank to cash the second cheque, one Jilubha, who was the godown keeper, met him and asked for payment of Railway freight of certain articles. The accused told him that as he was going to the Bank to cash the cheque, he should come later on. Jivubha, who was an acquaintance of the accused, sat down in the accused''s office room for his meals, and the accused instructed him to give the key of the room, after he had finished his meals, to the despatch clerk Ramanlal in the adjoining room. After going to the Bank, he exchanged the cheque for a token, and as the payment would take some time, he went to the house of one Dahyalal Jani, whose wife Shanta was relation of his. The object of his visit there was to arrange for the transfer of her nation cards. After doing that work he returned to the Bank, received the sum of Rs. 20,000 and (sic) to his office with it at about 1-30 p.m.. He took the key from Ramanlal''s table, opened his room as well as the rear window, then open of the cash box, and put the money in it. Thereafter, according to him, he cancelled the previous chalans of the amount of Rs. 20,000 which he had filled up, and prepared duplicate chalans for the amount of Rs. 40,000. The peon Ramji came thereafter, and he asked him to bring pan for him. Thereafter the accused says that he closed the door, took out the notes and the cash for the purpose of checking up, before taking the amount to the treasury. He checked three bundles of notes, each bundle containing Rs. 10,000 and while he was checking the fourth, a hard hand suddenly closed his eyes, and a hard ga(sic) closed his mouth and nose. He made a struggle but the bundle dropped from his hand, and he felt a smothering sensation. Thereafter he did not know what happened, and when he came round, he saw the clerks administering first aid to him. His defence thus was that he had not misappropriated any amount, but one or two persons had entered his room through the window, and committed robbery by taking away the notes amounting to Rs. 50,000.

The prosecution evidence consisted mainly of the deposition of the peon Ramji, the Food Officer Bhanurai, the clerks in the adjoining room, and the two Doctors. The prosecution case was that the window of the room of the accused overlooked a plane, in one corner of which there were the treasury buildings, and there were guards patrolling at that time, who could have seen anybody trying to enter the accused''s room through the window. For that purpose, the Guard Commander and other guards were examined to prove that the plain near the window was a frequented place, and that if anybody entered the window, he could have been seen by others. The Assessors were of the opinion that the prosecution had not proved its case against the accused, but the learned Judge, disagreeing with their opinion, held that the prosecution had proved its case of the accused being in possession of the amount of Rs. 62,000 and odd on that day, and that his theory of robbery was extremely improbable, and as the accused had failed to give a satisfactory account of what happened to the amount, he must be held guilty of having committed the offence of criminal breach of trust. Accordingly, he convicted the accused of the offence, and sentenced him as stated above.

Being dissatisfied with the conviction as well as the sentence, the accused has filed the present appeal before us. Mr. C.K. Daphtary, Advocate-General of Bombay, who has appeared on behalf of the defence, has contended in the first place that the prosecution case rests only on circumstantial evidence. He has relied on a decision of the Calcutta High Court reported in Major Robert Stuart Wauchope Vs. Emperor, which says that in a case of criminal misappropriation although the prosecution need not prove the actual mode of misappropriation, they must prove dishonest misappropriation, and that it is incorrect to say that once the prosecution has proved that the accused has received the money on account of another and is unable to show from his accounts that, and how he has used it properly, the accused must be deemed to have misappropriated the money. It is further observed that if when the Legislature has put upon the accused the burden of proving certain matters, he is in a much more favourable position than the prosecution, because he is not in general called upon to prove them beyond a reasonable doubt, but it is sufficient if he succeeds in proving a prima facie case.

On the other hand, the Advocate General, Saurashtra State, has relied on several decisions, the principal of which is Emperor v. Kadir Baksh 33 ALL. 249: (8 I.C. 687). It is there held that on a charge u/s 409, Penal Code, it is not necessary for the prosecution to prove in what manner money alleged to have been misappropriated has actually been disposed of by the accused. If it is shown that money entrusted to the accused was not accounted for nor returned by him in accordance with his duty, if unspent, it lies on the accused to prove his defence. The other decisions to the same effect are Sonameah v. Emperor AIR 1925 Rang. 47 : (26 CriL.J. 267), Bapurao Annaji v. Emperor AIR 1936 Nag. 160: (39 CriL.J. 349 ) and Emperor Vs. Chaturbhuj Narain Choudhury, . The effect of all the decisions relied on behalf of both the sides is, in our opinion, that although the burden of proving entrustment of the money rests on the prosecution, if it is proved that the accused was not in possession of the amount entrusted to him, it is for the accused to prove satisfactorily that he had not embezzled or misappropriated the amount but that the amount had been stolen or that he had been robbed of it. If the prosecution proves its case, the accused must prove such a defence as would carry a reasonable belief that the amount has been either stolen, or that the accused has been robbed.

In this case, there is no doubt on the accused''s own admission that he was in possession of Rs. 62,482-2-10 on 24th November 1948. The opening cash balance entry of Rs. 22,482-2-10 in the book is in the accused''s own handwriting, and the accused further admits the receipt of the two amounts of Rs. 20,000 each, the first as having been given to him by Bhanushankar, and the second received by him from the Central Bank. It was his duty to deposit the amount which he had received from the Bank into the treasury before 3 p.m. every day, and the cash balance was to be kept in the cash box, and at the end of the day, it was also to be deposited in the treasury. In our opinion, there-fore, the prosecution has discharged the onus which lay on it of proving the entrustment of these amounts, and the only question is whether the accused has given a reasonable and convincing account of its loss by robbery. If the accused''s story of robbery is such as should be reasonably believed, be must be entitled to acquittal, but if it is so improbable that it can not be reasonably believed, he must be held guilty of the offence.

8.10. The main point, therefore, before us is whether the accused''s theory stands the test of reasonable belief. [After considering the evidence his Lordship proceeded:] After giving our beat attention to the evidence, and the arguments urged on behalf of the accused, we have no hesitation in coming to the conclusion that the theory of robbery, put forward by the accused, is so very improbable that it can not be reasonably believed, and if that is rejected, there is no doubt that the accused must be deemed to be guilty of the offence of criminal breach of trust. He was under no obligation to put forward any theory, but as he has done so, it has to be examined, and if it is found to be false, there being no other theory relied on by him, he must be convicted of the offence. The prosecution is, in these circumstances, not bound to prove how the accused disposed of the a mount. He might have done it in any manner, but it is not necessary to speculate about it, if the accused''s theory is to be rejected. The prosecution has proved the entrustment of the money, and the accused has failed to account for the loss. That, in our opinion, is sufficient to convict him of the offence. It may be that the accused might have one or two associates who helped him in disposing of the money from his room, but it is not necessary to give any definite opinion on that point, as it is quite clear that in any case he is responsible for the loss of the monies entrusted to him. For these reasons, we confirm the conviction as well as sentence passed on the accused, and dismiss the appeal.