Brij Narain, J.C.
1. This is an application in revision on behalf of Gopal Krishna Majumdar and Govinda Chandra Majumdar sons of late Abinash Chandra Majumdar against an order dated 18-2-1955 passed by the learned Sessions Judge, Tripura in criminal appeal No. 16 of 1954 dismissing the appeal and upholding die conviction of the petitioners Under Section 406, I. P, C, as also the sentence of 1 year's R. I. and a fine of Rs. 200/- each and in default to undergo further R. I. for 3 months.
2. It appears from the record that die present petitioners are the sole proprietors of Dighaiia rice and oil mill and in February, 1950 the mills had entered into an agreement with the Procurement department of the Government of Tripura that they would supply 25,1/2 seers of rice for every maund of paddy supplied ad their milling charges per maund would be Re. 1/2/-. Under this contract 919 maunds of paddy in 614 gunny bags were supplied to the accused petitioners on 3 dates viz., 2-2-50, 4-2-50 and 5-2-50 by means of the receipts Exs. 9, 10 and 11.
The petitioners were under the contract bound to supply 586 maunds 14 chhataks of rice and 614 gunny bags to the Procurement department but they delivered only 441 maunds 16 seers of rice and 493 gunny bags. The prosecution alleged that the petitioners had misappropriated the above mentioned quantity of rice and gunny bags and so this prosecution was started by means of the letter dated 20-7-1950 Ex. 2 on the basis of which the F. I. R. (ejahar) Ex. 3 was prepared.
3. On behalf of the petitioners it was contended that the shortage was due to mcessant rain in the months of May and June with the result that a sufficient quantity of rice was damaged and had to be thrown away. It was further contended that the paddy supplied to their mill was of an inferior quality and owing to the presence of foreign grass grain the quantity of rice available was short.
According to the petitioners the matter is purely of civil nature as the contract between the parties as well as the shortage was throughout ad-mitted by them and the department on believing these allegations granted them time to pay up the balance vide Exs. D, E, F, I, L and M but after die lapse of this period dicey became angry and started this case. Usha Ranjan Bhattacharjee, Inspector is stated to be inimical to the petitioners and he is alleged to have falsely implicated diem in this case.
4. Some irregularities are also stated to have been committed during the course of the trial and it is urged that the present petitioners have been gravely prejudiced thereby. It has been urged that the charge framed did not specify the time nor the manner in which misappropriation was stated to have taken place and so the petitioners were prejudiced in their defence.
Another irregularity is stated to be. that three very impprtant and material prosecution witnesses were withheld and even though the petitioners wanted to examine them Under Section 257, Criminal P. C, their request was improperly rejected. Sri A. K. Mitra the then Director of the Procurement Department of the Government of Tripura who had sent the written complaint Ex. 2, his successor Sri J. S. Dev Barman and Sri Haridas Mukherjee, D. P. O. are stated to be very material witnesses in this case but in spite of the petitioners' insisting on their being summoned the learned magistrate did not examine diem.
Lastly it has been contended that in any case the petitioner No. 1 could not be convicted in this case as the paddy was never entrusted 'to him and simply because his firm is found to have entered into a contract with the procurement department, he could not be held criminally liable.
5. I have been taken through the entire oral and documentary evidence on the record at the time of the hearing of arguments and I find diat Govinda Chandra Majumdar petitioner No. 2 received 919 maunds of paddy and 614 gunny bags by means of the recepits Exs. 9, 10 and 11 on behalf of the mill of the petitioners but the petitioner No. 2 does not appear to have been entrusted with any quantity of paddy personally.
On behalf of the petitioners all the facts relating to delivery of paddy to their mill as well as regarding their supplying only 441 maunds 16 seers of rice and 493 gunny bags were admitted vide the letters Exs, B and C dated 13-11-1950' and 29-8-1950. The report of Asutosh Bhattacharjee, Inspector P.W. 1 dated 29-5-1950, Ex. 1 also shows that on that date about 90 maunds o paddy in heaps mixed with husk were found by die Inspector in the petitioner's mill and Govinda Chandra Majumdar had promised to supply the balance of rice within the next Thursday.
Hiranmoy Roy P.W. 2 is the Head-clerk and he has produced certain documents in court, Sri Swadesh Ranjan Paul, second officer Sidhai police station P.W. 3 on receiving the letter Ex. 2 prepared the first information report dated 27-7-1950 Ex. 3. He also searched the mill premises and recovered some empty gunny bags and a stock book but nothing incriminating appears to have been found from this stock book vide the search list Ex. 5 and the letter Ex. 6 as well as of the report of the Circle Inspector Ex. 7.
The letter Ex. 8 dated 1-4-1949 has been produced to show that the rates agreed to between the department and the petitioners were allowed by the Dewan Bahadur to prevail in case of other similar dealings also. The acknowledgment Ex. 13 goes to establish that Govinda Chandra Majumdar petitioner No. 2 informed Usha Ranjan Bhattacherjee, Inspector P.W. 4 about receipt of 917 maunds or paddy for milling purposes.
The letter Ex. 15 dated 15-5-1950 shows that Usha Ranjan Bhattacherjee complained against the petitioners regarding quality of rice supplied but his complaint was not deemed to be of any force and rice was taken from the petitioners by the department. This Inspector tried to show by means of his report dated 1-6-1950 Ex. 16 that the petitioners had changed the paddy but this report was also found to be without force and it was filed with the remark that it was then too late to receive a complaint of that nature from the Inspector.
The procurement centre stock books Exs. 19 and 20 duly proved by Sri Dhiresh Chandra Ghosh P.W. 5 merely show the stock position of grain and the letter dated 30-5-1950 sent on behalf of the mill of the petitioners by Govinda Chandra Majumdar to the procurement department Ex. 18 shows that the petitioners were all along prepared to give the deficit rice but they wanted some 60 maunds of rice to be given to them at controlled price for garden coolies and others.
6. Amar Chandra Chakraborty P.W. 6 contractor has merely stated that the paddy supplied by him to the Government for milling was of good Quality, Surjya Kumar Saha P.W. 7 has tried to show that Dhiresh Chandra Ghosh P.W. 5 had shown to him some rice which was not of good quality and the witness meant to suggest that the rice supplied by the petitioners was not of good quality but as the charge against the present petitioners was' not on this ground his evidence cannot seriously be deemed to be against the petitioners. Sri Indra Mohan Ganguli, S. I. P.W. 8 after completing the investigation submitted the charge sheet against the petitioners.
7. I have referred to the documentary and oral evidence produced by the prosecution in detail because I have after going through this evidence come to the conclusion that it does not in any way prove that the present petitioners at any stage tried to resile from the contract. The evidence, on the other hand, clearly shows that they tried to abide by it vide the letter dated 27-5-1950 Ex. N but they alleged that owing to causes beyond their control they could not supply the deficit rice and so they wanted time.
The question whether the alleged causes were beyond their control or not could properly be determined by the civil court in order to ascertain whether the petitioners were guilty of breach of contract but the criminal court should only be concerned with the fact whether there was dishonest intention or mens rea on the part of the petitioners in not delivering the deficit rice in time.
8. The petitioners filed the paper Ex. J and the letter Ex, K in order to show that the Inspector of Mohanpur who was directly dealing with the petitioners regarding the paddy transaction tried to borrow money from them and as they refused to comply he got the document Ex. 18 prepared on the blank paper on which he had obtained the signature of the petitioner No. 2.
9. There is no doubt that it is fully established in this case that 144 maunds and odd of rice remained due from the petitioners as well as 121 bags and this fact has never been denied by the petitioners. The main question which is to be determined is whether this detention can be deemed to be dishonest within the meaning of Section 405, Penal Code. Section 405, IPC runs as follows:
405. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that 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 wilfully suffers any other person so to do, commits 'criminal breach of trust.
10. Section 24 defines 'dishonestly' as follows:
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'.
11. I have already shown above that the prosecution evidence on this record does not show that the present petitioners made any wrongful gain by not delivering the deficit rice to the procurement department or that they caused wrongful loss to any other person. The learned Sessions Judge has made the following observation after reviewing the evidence at page 9:
No direct evidence was adduced to show that any quantity of paddy was actually misappropriated or diverted to other channels by the petitioners.
12. The learned Magistrate appears to be of the opinion that as the petitioners stated in Exs. IS and F that the remaining rice had been lying in their godown, they misrepresented facts but he has mentioned in the same continuation at page 15 of his judgment that from Ex, 1 which is 'a report dated 29-5-1950 from P.W. 4 it appears that the real position was in the knowledge of the Inspector and he had been apprehending from the available stock in the mill that the accused would not be in a position to supply the full quota of rice.
This clearly negatives the assumption that the present petitioners ever wanted to conceal anything from the procurement department and the mere fact that they mentioned that the remaining rice was lying in the mill cannot properly be interpreted to mean that the entire remaining quantity to be delivered to the procurement department was lying there.
It has not been disputed before me that some quantity of rice was actually lying there when Exs. 18 and F were written and sent. It thus becomes clear that the plain fact which is established from the evidence on the record is that the present petitioners never tried to conceal any fact from the department and they always admitted their liabilities to deliver the remaining quantity of rice to the department and it is further clear that they did not actually make any wrongful gain or cause any wrongful loss by npt delivering the deficit rice to the department.
Every breach of trust is not criminal. It may be intentional without being dishonest or it may appear to be dishonest without being really so. In such cases the Court should be slow to move and this caution is all the more necessary because there is a tendency to secure speedy results by having recourse to criminal law vide 'Abdul Karim v. Crown', 52 Cri LJ 1178 (Lah) (A).
It has further been laid down in this ruling that it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement becomes an offence punishable as criminal breach of trust. 'It is this mental act of fraudulent misappropriation that distinguishes an embezzlement amounting to a civil wrong or tort from the offence of criminal breach of trust punishable Under Section 406, Penal Code.
Every offence of criminal breach of trust involves a civil wrong in respect of which the com-plainant may seek redress in a civil Court; but every breach of trust, in the absence of mens rea, is not criminal.
13. The mere failure to return the article hired does not prove dishonesty, nor does the mere failure to deliver possession of the property to the lessor on the expiry of the lease amount to criminal breach of trust.
14. In the present case the courts below have tried to infer dishonesty from
(a) the petitioners failure to deliver the balance, shortage of 1.57 maunds of paddy;
(b) absence of proof of incessant rain which according to the petitioners caused serious damage to boiled rice;
(c) the petitioners' theory that paddy supplied was of inferior quality and was mixed with grass grain was not substantiated and
(d) delivery of former two consignments was given late.
15. The learned Sessions Judge appears to have led considerable stress on the circumstance of late delivery of the first two consignments. He has Observed in this connection:
Although the paddy was supplied in the first week of February, 1950, and the milling capacity per day was 26 to 27 maunds of rice as the evidence discloses, no step was taken to supply rice in February and March although the understanding was that it should be supplied in a short time and the first delivery was made on 9-4-50 i.e. more than 2 months after the 1st date of supply of paddy. Another month was taken to supply the /next consignment of 80 maunds of rice. These circumstances clearly indicated that there was dis-hpnest misappropriation.
16. No charge was framed against the petitioners on account of the late delivery of the first two consignments and no adequate opportunity was given to them to explain why delay had taken place and whether it was an unreasonable delay. The petitioners were obviously doing work of other people also during the period in question and as the consignments were received by the procurement department without raising any serious objection I think the inference that late delivery of the first two consignments establishes dishonesty on the part of the petitioners cannot be deemed to be correct.
17. I have already pointed out above that there shortage in the delivery of rice cannot establish dishonesty in any manner unless the mental act of fraudulent misappropriation was established I by the Drosecution by cogent evidence,
18. The petitioners contended that boiled rice was damaged in sufficient quantities in the months of May and June on account of incessant rain. It has been urged on behalf of the prosecution that the defence: witness did not certainly establish that there was incessant rain. Sri Usha Ranjan Bhattacherjee, Inspector P.W. 4 was put a categorical question on tins point in cross-examination but he made an evasive reply that he did not remember there having been incessant rain from 18th or 19th May up to last date of that month or from (3th or 7th June up to the end of that month.
The learned Magistrate could have very easily referred to the Tripura State gazette in order to arrive at a correct conclusion on this point. I find from the Tripura gazette dated 31-7-1950 no. 412, 413 (agricultural department) that rainfall from 4th June to 10th June was 2.75 inches and the , weekly report regarding 14th May to 20th May ?-1950 published in the Tripura gazette dated 30-6-1950 was that the average rainfall was 4.30 inches.
Such a rainfall in the months of May and June can certainly be deemed to be excessive and in view of the fact, that the prosecution witnesses tried to suppress this fact the version of the petitioners' will have tp be taken to be correct, If a-sufficient quantity of paddy and boiled rice were damaged on account of rain, the present petitioners oould, by no stretch of imagination, be deemed to have acted dishonestly in placing all the facts quite plainly before the authorities and in asking for a way out of the difficulty. The mere fact that no mention was made of rain in Exs. 18 and F will not be of any material importance because the petitioners were then trying to settle matters with' the authorities and their intention was to pay ther dues in due course.
It has been laid down in '.Robert Stuart Wauchope v. Emperor' AIR 1933 Cal 800 (B) that in criminal cases, the onus of proving the general issue never shifts and it lies upon the prosecution to prove beyond reasonable doubt the guilt of the accused. Where the accused makes out a prima facie case, that is to say, gives some explanation which may reasonably be true, even though it may not be believed by the Judge or the jury, he or they must acquit him, because tile onus lying on the prosecution of establishing the guilt of the accused beyond reasonable doubt has not been discharged; vide also 'Bolai Chandra v. Bishnu Bejoy AIR 1934 Cal 425 (C) and 'Panchi Nandar v. Emperor' AIR 1920 Pat 663 (D).
In view of these rulings and also in view of the fact that the petitioners have established that there was incessant rain during the two periods in question and this could very easily damage boiled rice, I think the inference drawn by the courts below regarding dishonesty on the part of the petitioners is not justified and the fact which remains is that there was no mens rea on the part of the petitioners in the present case, as the petitioners' had complained about incessant rain in the middle of June vide the statement of Usha Ranjan Bhattacherjee P.W. 4.
19. The learned Magistrate has taken judicial' notice of a number of facts and he has gone to the extent of stating that rice was really worth its weight in gold in mid-1950 in order to infer that the present petitioners were dishonest and he has, for no good reasons, disbelieved that the present petitioners were to dispose of 60 maunds of rice at the controlled rate proposed by them, Even if it be assumed that the arguments advanced by the petitioners regarding the document Ex. 18 being., purposive are not correct, this document by itself does not prove any dishonesty on the part of the present petitioners. The learned Magistrate at p. 16' mentions:
I have not the least doubt that the accused must have disposed of the remaining stock of rice at a high price for profiteering, to which they were not legally entitled.
20. I can, after going through the entire evidence on this record, to which reference has already been made above, only state that this presumption was not at all justified and there was no justification for presuming the guilt of the petitioners in this manner. There could have been direct evidence to establish that the petitioners indulged in profiteering or black marketing but there is no such evidence on this record nor is there any evidence to show they removed paddy or rice elsewhere from their mill,
21. If there was no mens rea on the part of the petitioners the case would clearly fall within the purview of civil courts. It has been laid down by the Hon'ble Fazl Ali J. in 'Harakrishna Mahtab v. Emperor' AIR 1930 Pat 209 (E) that it is true that the courts below have come to a finding that the defence story is entirely false, and a finding of fact is not usually interfered with in revision; but as in this case the finding is not based on any positive evidence but upon inferences drawn from certain circumstances arising from evidence and all the materials on which the finding is based are set forth in the judgments of the Courts below, it is open to the accused to ask us to consider whether the conclusions arrived at by the Courts below are warranted by these materials.
22. In the present case as I have shown above the courts below did not take into consideration the most important evidence contained in the Tripura State Gazette and they relied on certain circumstances arising from the shaky evidence of the Inspector, I think the petitioners in this case are certainly entitled to ask this Court to consider if the conclusions arrived at by them are warranted by those materials. It is also laid down in this ruling that where there is no direct evidence of misappropriation and one is left to surmise as to what use was made by the accused of money, one ought to require clearer evidence of dishonest intention than in a case where there is direct evidence to prove that the money was appropriated by the accused for a particular use which is inconsistent with his position as a trustee of the money.
23 In 'Harnam Singh y. Emperor' AIR 1918 All 406 (1) (F) where certain properties were attached and at the time of auction sale they were not produced and the accused admitted service of notice, it was held that the accused could not be oonvicted of criminal breach of trust Under Section 406, IPC inasmuch as the property had not been misappropriated or converted to the use of the accused, nor had it been used or disposed of in any manner contrary to the terms pf the trust
24. These rulings clearly go to show that where the properties were not dishonestly dealt with by the accused there could be no conviction Under Section 406, IPC In the present case it has been proved that rice was damaged owing to rain and other causes and so the matter between the parties was purely of a civil nature. It has been laid down in 'Mt. Sudeshara v. Emperor' AIR .1933 All 818 (G) that coivrt should not be used for enforcing civil claims and in 'Ladha Shah v. Zaman Ali' AIR 1925 Lah 289 (2) (H) it was laid down that the parties should not be encouraged to resort to the criminal courts in cases in which the point at issue between them is one which can more appropriately be decided by a civil court, and the tendency on the part of litigants to do so should be checked by criminal courts who should be on their guard against lending their aid to such procedure.
I would add that parties should not be allowed to appease their anger or return their vengeance by starting proceedings in the criminal courts where the proper remedy is to resort to the civil courts as was the case here.
25. It has been contended by the Advocate for the petitioners that the charge framed in this case was defective inasmuch as it did not specify the time during which breach of trust was alleged nor did it specify the manner. The learned Sessions Judge has after taking into consideration all the facts and the statement of the petitioners Under Section 342, Cr.PC, come to the conclusion on good grounds that the accused were not prejudiced and so I think this point is not very material now.
26. It has further been urged on behalf of the petitioners that the trial court refused to exa- mine Sri A. K. Mitra the then director of the procurement department, his successor Sri J. S. Dev Barman and Sri Haridas Mukherjee, D. P. O. in spite of the fact that some of these witnesses at-i , tended the court on some hearings. The learned'' ' Magistrate appeared to be of the opinion that the evidence of these witnesses would not be material. Sri A. K. Mitra sent the first information report Ex. 2 and the petitioners wanted to prove certain oral directions given by him but they were deprived of that opportunity. Similarly the other two witnesses also were important and there was no justification for their not being examined Under Section 257, Cr.PC once that prayer was allowed by , the court.
In 'Habeeb Mohammad v. State of Hyderabad' : 1SCR475 it has been laid down by the Hon'able Supreme Court that it is the boun-den duty of the prosecution to examine a material , witness, particularly when no allegation has been made that, if produced, he would not speak the ' truth. Not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illus. (g) to Section 114, Evidence Act, but the circumstances of his being withheld from the court casts a serious reflection on the fairness of the trial.
27. In 'Ronald Wood Mathams v. State of West Bengal' AIR 1954 SC 455 (J) it has been laid down by the Hon'ble Supreme Court that the accused cannot be convicted without an opportunity being given to him to present his evidence and if it is denied to him, there is no fair trial and conviction cannot stand.
28. In 'Ramdhan Mondal v. Giridhari Mondal', 42 Cal WN 843 (K) it has been laid down that when a defence witness fails to appear on the date fixed in obedience to the summons issued to him and on the accused making an application for fresh summons, the magistrate fixes a date for argument without passing any order on the application and ultimately convicts the accused, the irregularity vitiates the trial.
29. In view of these authorities I think the trial of the present petitioners is vitiated on this account also.
30. Lastly it has been contended that petitioner No. 1 was never entrusted with the paddy in question and so he could not possibly be convicted Under Section 406, IPC The documents Exs. 13, 8, SA and Ex. F go to show that the petitioner No. 1 was not directly concerned with this affair and as he was a partner in the firm Dighalia rice mills he became a parly to the letters Ess. B and C which were sent for composing the differences. It is not established that he ever allowed his brother to misappropriate any rice or bags. Simply because he tried to get the matter settled it cannot be said that he would be constructively guilty Under Section 406 IPC I think the conviction of the petitioner No. 1 cannot be sustained in any case.
31. The result is that this revision is allowed had the conviction of the petitioners Under Section 406, IPC as also the sentences imposed on them are quashed and they are hereby acquitted of the aforesaid charge. Govinda Chandra Majumdar will be released forthwith unless he is required in connection with any other case. Gopal Krishna Majumdar is already on bail. He need not surrender as his bail bonds are discharged.