P L D 1952 Dacca 62 (PLP)

ELLIS, J.

‑The petitioner in this case is one Dr. Devendra Nath Chakravarty who was convicted under section 406 of the Pakistan Penal Code and sentenced to rigorous imprisonment for two years and‑ a fine of Rs. 1,000 or in default to rigorous imprisonment for a further term of four months by Mr. M. A. Ahmed, Magistrate, 1st Class, of Rangpur, on the 31st December, 1949. His appeal to the Sessions Judge was dismissed on the 6th February, 1950, and thereafter he moved this Court in the exercise of its Criminal Revisional Jurisdiction and obtained a rule on the District Magistrate of Rangpur to show cause why the order of convic tion and sentence passed against him should not be set aside. The case comes from the District of Rangpur where in the middle of 1945 the Rangpur District Consumers' Co‑operative Stores, Ltd., came into being. This Stores has been referred to throughout the case as "R.D.C.C.S." It was established under the auspices of the Bengal Co‑operative Societies Act and had its Head Office at Rangpur. It had a Managing Committee and a Board of Directors and it had a share capital of Rs. 16,00,000 divided into certain shares. The District Magistrate of Rang pur at that time was Mr. M. A. T. Iyenger who is described as being the heart and soul of the organisation and responsible for its coming into existence. He was the Chairman of the Society and under his orders and according to his wishes, practically all work in connection therewith was managed. The business of the Society is described as first of all to sell shares to the general public through honorary workers and agents and along with this work the Society took up business in certain controlled commodities such as cloth, kerosene, salt, and the like. The petitioner who at that time was the Medical Officer of the Charmichael College, Rangpur, came to be associated with the District Consumers' Co‑operative Stores as an honorary worker in November, 1945. He claims in his petition that he undertook this work at the earnest request of Mr. Iyenger and the main business assigned to him was to do propaganda work to popularise the Stores in the District and to sell shares of the value of Re. 1 each on share books issued by the Rangpur District Consumers' Co‑operative Stores. He was supplied with cloth on credit from the Stores with instruc tions to sell them on credit to various Food Committees and Presidents of Union Boards and on realisation of the price concerned to pay it over to the Co‑operative Stores. It is claimed that his sphere of influence was Rangpur Kotwali, Gangachara Thana, Kishoreganj Thana, Syedpur Thana, Mitha pukar Thana, part of Nageswari Thana and the northern part of Betgari Police Station. For the purpose of distribution of the cloth made over to him, he established two dumps under his personal supervision, one at his residence in the Charmichael College, Rangpur, and the other at his village home, Paglapir. He used to take supplies of cloth from the central godown of the Society, stock them in the aforesaid two dumps and distri bute them to the Secretaries of the Village Food Committees and the Union Board Presidents within the area allotted to him. The Secretaries of the Village Food Committees and the Union Board Presidents received the cloth from him on credit and in there turn used to pay the price to the petitioner when they got their next supply. This was the practical rule of business but it is claimed on the prosecution side that the rule was honoured in the breach rather than in the observation ; because the petitioner exploited to the full the intimacy he had contracted with the District Magistrate and used to persuade him to issue slips granting him fresh supplies of cloth on credit without the price of the cloth he had previously obtained being credited to the Society. In these circumstances, suspicion began to grow that the petitioner was keeping a huge sum of money belonging to the Society without depositing the same or placing it to his credit and there was what is described as "the chaotic condition in the affairs of account of the distribution of cloth and realisa tion of share money and their accounting". Such was the state of affairs when yin June, 1946, it came to the notice of the Government that things were not well with the Society and an enquiry was ordered into its working by Government. For this purpose, Mr. Aziz Ahmed, the then joint Secretary to the Government of Bengal, and Mr. C. A. Ali, the then Registrar of the Co‑operative Societies, Bengal, arrived at Rangpur, the latter on the 22nd June, 1946, and the former on the 27th June, 1946, and tried without success to contact Dr. Chakravarty in order to make the enquiry required of them. They failed to secure his presence and ultimately had recourse to the help of the District Magistrate in order to procure his attendance. At last he appeared before them on the 30th June, 1946. He was asked whether the accounts were ready and he took up the line that the accounts had been ready long ago and the Registrar, Mr. C. A. Ali, was not examining the same. Two Inspectors of the Co‑operative Societies were deputed by the Registrar to examine the accounts of the dumps managed by the petitioner but the petitioner once more managed to avoid giving them any help. Thereafter, Mr. Aziz Ahmed and the Registrar deputed an Inspector and a Chief Auditor to take possession of all account books of the petitioner so far as they related to the work in connection with the Stores. An investigation followed and an accounting was made which revealed that the petitioner was unable to account for a huge sum of money which, it is claimed, he had misappropriated or converted to his own use. On these facts, action was taken against him on a first infor mation report drawn up at the instance of Mr. Aziz Ahmed, the then Joint Secretary to the Government of Bengal, and it was claimed that a scrutiny of the state of accounts disclosed that the petitioner Dr. Chakravarty was unable to account for a sum of Rs. 22,946‑8‑6 due to the Stores. The case was tried by Mr. M. A. Ahmed, Magistrate, 1st Class, of Rangpur. A charge was framed against the petitioner charging him with criminal breach of trust in respect of Rs. 31,173‑0‑

11. In his judgment after a scrutiny of the relevant papers the learned Magistrate found that the petitioner had defalcated a sum of Rs. 27797‑8‑0 but this sum was reduced by the learned Sessions judge on appeal to the sum of Rs. 25,239‑4‑

0. The only point of a legal nature which is taken before us in the exercise of our Criminal Revisional Jurisdiction relates to the charge as framed against the petitioner. The charge is in the following terms : " I, M. A. Ahmed, Magistrate, 1st Class, Rangpur hereby charge you Dr. Devendra Nath Chakravarty as follows : That you between November, 1945, and July, 1946, at Rangpur Police Station, Rangpur Kotwali, being entrusted with certain properties of the Rangpur District Consumers Co‑operative Stores commonly known as R. D. C. C. S. namely cloth and share receipt books for the purpose of sale of the cloth and for realisation of share money for the R. D. C. C. or having dominion over the same committed criminal breach of trust in respect of Rs. 31,173‑0‑11, which you realis ed by sale of cloth and on account of share money and thereby committed an offence punishable under section 406 of the Indian Penal Code and within my cognizance." It has been argued before us that this charge violates the provisions of section 222 of the Code of Criminal Procedure in that it does not relate to one gross sum of money such as would be covered by that section. Section 222 (2) of the Code of Criminal Procedure says : "When 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". It is argued before us that if it had been recited in the charge that the petitioner was entrusted with a gross sum of money Rs.31173‑0‑11 and was charged with committing criminal breach of trust in respect of that gross sum of money in bet ween November, 1945, and July, 1946, no exception could be taken to the charge. But the charge does not recite that the petitioner was entrusted with any gross sum of money but recites that he was entrusted with certain properties of the Rangpur District Consumers' Co‑operative Stores, namely, cloth and share receipt books " for the purpose of sale of the cloth and for realisation of share money for the R. D. C. C. S. It is accordingly argued that the case does not fall within the scope of section 222 (2) of the Code of Criminal Procedure inasmuch as it does not relate to any gross sum of money. It is further pointed out that when use is made of section 222 (2) of the Code of Criminal Procedure in respect of criminal breach of trust, it must apply to criminal breach of trust of money only and cannot apply also to other properties, cloth or share and receipt books or the like. In this connection our attention is drawn to the case of Public Prosecutor v. N. S. Sharma A I R 1939 Mad. 575, where the head note is to the following effect : The case referred to in section 222 (2) 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 and dishonest misappropriation of goods and afford no justification for mixing up money and goods or for framing a single charge in respect of the total of the cash said to have been misappropriated and the total value of goods said to have been misappropriated." The Hon'ble Judge who disposed of the case made the following observation : " 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 crimi nally misappropriated within the space of twelve months, i.e., between the 3rd September, 1936, and the 6th May, 1937, and the learned Magistrate thought that on this account under section 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." His Lordship thereafter quotes the language of section 222 (2) of the Code and goes on to observe: "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 did 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." Thereafter his Lordship observed : "The case referred to in section 222(2), Criminal P. C. 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 mix appropriation of goods, and affords no justification for mixinf, up money and goods in the manner in which it has been done b the trial Court or for framing 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." With these observations we respectfully agree. Reliance is also placed on the case of Balthasar v. Emperor, I L R 41 Cal. 844, where their Lordships Holmwood and Sharfuddin JJ. held that when a person is charged with criminal breach of trust of certain property entrusted to him, he cannot be convicted of embezzling, not the property, but the amount obtained by dealing with it. In opposition to these rulings, the learned Deputy Legal Remembrancer relies on the case of Rahim Bux Sarkar v. Emperor A I R 1930 Cal.

717. The headnote quotes " Where an accused person is charged under section 408, I. P. C., with having committed criminal breach of trust in respect of a gross sum of money misappropriated by him within the period of one year and the charge not only specifies the gross sum taken and the dates between which it was taken, but also sets out the items composing such gross sum giving the dates and the amounts alleged to have been misappropriated, the charge comes within the provisions of clause (2), section 222, Criminal Procedure Code, and that if by specifying the items composing the gross sum the charge went beyond what was necessary instead of prejudicially affecting the accused it is to that extent fav ourable to the accused." We cannot hold that the ruling relied upon by the Deputy Legal Remembrancer is any answer to the ruling cited or relied upon by Mr. D. C. Roy and in agreement with those rulings we hold that the charge as framed against the petitioner is not one which legally could have been framed against him under section 222 (2) of the Code of Criminal Procedure. We would further notice that immediately the charge was framed the petitioner filed a petition before the Magistrate which is to the following effect: " The humble petition on be half of the above‑named accused most respectfully states: That a charge under section 406, I. P. C. has been framed against the accused on the 15th July, for having committed between November, 1945, and July, 1946, criminal breach of trust in respect of Rs. 31,173‑0‑11 alleged to have been realised by the accused by sale of cloth and on account of share money. That the said charge as framed is vague inasmuch as it does not give the accused the notice of particulars as to the time and place and other information, viz., several items of which the gross sum is composed and particularly the separate amount covered by share money and prices of cloth, the persons and consignment they respectively relate to and the accused will be seriously prejudiced in his defence if the said particulars and other information are not given". We think that when the learned Magistrate had this petition presented before him, he would have been well advised if he had immediately informed the petitioner of the details of the charge against him. As it was, he recorded an endorsement to say that the matter would' be heard in the presence of the Public Prosecutor whose attendance was not then available as he was engaged in the Sessions Court. Thereafter, he disposed of the matter in the following entry in the order sheet under the date 22nd August, 1949. "Two petitions are moved on behalf of the accused, one stating that the particulars of alleged defalcation have not been stated in the charge and the other stating that the charge has not been explained to the accused as contemplated under section 255, Criminal Procedure Code. All relevant papers to show the defalcation have been exhibited in the case and the accused have been allowed all facilities to inspect and look into the papers which they have fully availed of in Court. The provi sion of section 222 (2), Criminal Procedure Code, has been fully complied with in the charge and further particulars need not be mentioned in the charge." Considering the volume of docu mentary evidence exhibited in the case, we do not think that the Magistrate was right in disposing of the petitioners' objection to the charge by merely stating that all the available materials toad already been brought on record. In these circumstances, we cannot but hold that the accused has been prejudiced by the charge which actually was framed against him. His conviction and sentence must be set aside. We direct that he be tried on a charge properly framed according to law giving him sufficient details of the offences charged against him. The rule is disposed of accordingly. IBRAHIM, J.‑

I agree. A. H. Rule made absolute.