1. The appellant, who was a Range Forest Officer, has been convicted of having committed criminal breach of trust as a public servant under Section 409 read will Section 109 of the Indian Penal Code. He was originally sentenced to three months' rigorous imprisonment and a fine of Ks. 300, but on appeal the sentence was reduced to the period of imprisonment already undergone and a fine of Rs. 100.
2. In revision it is contended that the facts found do not justify a conviction under Section 409. The appellant was tried with two clerks, Laia Baoji one the Depot Clerk and the other a clerk in his own office, and Fawcett J. it was proved that these two clerks unduly delayed in making certain remittances to the Government treasury. The Sessions Judge has held that there was an understanding between the appellant and his two clerks to keep Government monies as long as possible in the office, and that he must have noticed the fact that accumulated large amounts were sent at intervals to the treasury instead of in the shape of daily collections, as was required under departmental rules. On the other hand, he held that there was no evidence to show that any of the three actually misappropriated or converted to his own use even a pie of Government money. It was argued before him that some overt act had to be proved in order to constitute the offence of criminal breach of trust, besides the mere retention of the monies for an excessive period. But the learned Sessions Judge rejected this contention, holding that for a dishonest disposal such proof was not absolutely essential. He says :-
The rules required the Government monies not to be kept in the office beyond at the moat a day or two. The proper disposal of the monies would have been to send it to the treasury without delay. The accused, whoever were responsible for holding the monies at their own disposal, violated the directions under which they had to perform their duties and were, therefore guilty of criminal breach of trust.
3. He also refers to Sections 23 and 24 of the Indian Penal Code, and says there was dishonesty as Government were wrongfully kept out of their use of their monies for Borne time, so that, there was wrongful loss caused to Government, and 'as this was not due to mere inadvertence or negligence the act of the accused must be considered as dishonest in the sense in which that word is used in the Penal Code'. He also found one circumstance which led him to suspect that the sums retained in the office were not always there. But the conviction is not based upon this, but upon the ground that the two clerks unlawfully kept the monies in the office, and the appellant willfully connived at his subordinates' acts.
4. Mr. Desai for the appellant has cited various authorities in support of the contention that was raised in the Sessions Court, as I have already mentioned. So far as criminal misappropriation is concerned, I agree with him that ordinarily mere retention of monies would not suffice to constitute the offence of criminal misappropriation as defined in the Code. Explanation (1) to Section 403 no doubt says that dishonest misappropriation for a time only is a misappropriation within the meaning of this section. But that has reference to the main definition in Section 403 about misappropriation or conversion to the offender's own use; and Explanation (2) specifically refers to the distinction between a person keeping property in his possession for the purpose of protecting it or restoration to the owner and the case of appropriating that property to his own use, when he knows or has the means of discovering who the owner is. I agree substantially with the passage taken from the judgment of Chatterji J. in Phuman v. The King-Emperor of India (1907) P.R.1908 which is cited at page 907 of Ratanlal & Dhirajlal's 'Law of Crimes', 11th Edition. There Chatterji J. said (p. 33) :-
'Section 403 requires that the property should be shown to have been misappropriated or converted to his own use by the accused. The mere possession of the property is not sufficient for proving- the charge without something to indicate the appropriation or conversion, though long possession without any attempt to find the owner may amount to evidence of intention to do so.'
5. Then he proceeded to cite Explanation (2) to Section 403 as making the necessity of some positive proof of this sort quite clear. It is to be noted, however, that Section 405 does not depend entirely upon criminal misappropriation, but also covers the case of a person dishonestly using or disposing of property in violation of what is mentioned in the section : and the learned Judge in this case has held that there was such a dishonest disposal of the property. But it seems to me that this involves very much the same thing in a case like the present, because there has to be established by the prosecution the definite intention, which is required by the definition of the word 'dishonestly' in Section 24 of the Indian Penal Code, Although 'wrongful loss' covers the case of a person being wrongfully kept out of any property, as well as the case of his being wrongfully deprived of property, still for a conviction of criminal breach of trust in a case of this kind I think there should be some indication which justifies a finding that the accused definitely had the intention of wrongfully keeping Government out of the monies; and ordinarily that would be shown by some overt act, which went beyond mere retention of money that should have been remitted to the treasury. This is, I think, illustrated in a case that is somewhat similar to the present one, but which has not been cited in argument, viz., Queen-Empress v. Ramakriehna I.L.R. (1888) Mad. 49. In that case, the accused was a Government servant whose duty it was to receive certain monies and to pay them into the treasury on receipt. He admitted that he had retained two sums of money in his possession for several months, when fearing detection he paid them into the treasury making a false entry at the time in his books with a view to avert suspicion. His explanation &b; to his reason for retaining the money was not credited by the Magistrate, who convicted him of criminal misappropriation under Section 408 of the Indian Penal Code; and it was held by the High Court that that conviction was right. Wilkinson J. says (p. 51):-
In my judgment the Lower Court rightly held that in a case like the present dishonest intention can only be inferred from the circumstances of the case, looking at all the facts of the case it seems to me that the only conclusion to be drawn is that the intention of the prisoner was dishonest, if not when he put the monies in his pocket and carried them home with him, at all events the next day when he omitted to take back the monies with him to the office and credit them to Government.
6. Shephard J. says (p. 52):-
If the petitioner's account of the reasons for not crediting the money in the usual way is put aside, I think there is no doubt the conviction is right. If he did not intend to pay money into the treasury, he must have intended be appropriate it to himself, and it cannot make any difference that one of his reasons for adopting this course, which was clearly a dishonest one, was that he desired to avert the displeasure of his superior.
7. In that case the petitioner took the monies with him instead of putting them in his office, and he also admitted that he omitted to make any entry as to his receipt of the money at the time when that should have been done. There was, therefore, some overt act beyond mere retention of money, which, I think, formed the basis of conviction in that case. Similarly, in Queen-Empress v. Ganpat Tapidas I.L.R. (1886) Bom. 256, it was held that the accused mere retention of certain money for a time in the absence of any evidence of dishonesty, did not amount to criminal breach of trust within the meaning of Section 409 of the Indian Penal Code. So far as it was held in that case that the accused had fulfilled the trust reposed in him by Government, the ruling has been the subject of some animadversion, for instance, by Knox J., Emperor v. Sita Ram I.L.R. (1919) All. 204 but so far as it was held that mere retention of money, in the absence of any evidence of dishonesty, does not amount to criminal breach of trust, I think it is not open to criticism. In the present case, I think, that, accepting what the Sessions Judge has found against the applicant the question remains whether the accused in conniving at the retention of the money so long in his office, is proved to have done so with a dishonest intent, and that the mere fact of the moneys being retained for an excessive time In the office is not of itself sufficient to prove such a dishonest intent. If the learned Judge had found as a fact on the evidence Fawcett J. that the clerks used to take the money away from the office, and used it for their own purposes, and that the appellant was aware of that, then, undoubtedly, there would be a clear case for convicting him of criminal breach of trust. But the learned Judge does not go so far as that; and although the evidence certainly does give rise to a suspicion of that kind, as the learned Judge holds, yet it falls short of the proof that, I think, is required to justify a conviction of the accused. Undoubtedly, he was guilty of gross dereliction of duty in not seeing that the rules were observed and in having the understanding with his subordinates that the Sessions Judge has found he had. But, it seems to me, there is a reasonable doubt as to whether his intention was dishonest in the sense that he, by this connivance, intended to let his subordinates have the use of the money to the detriment of Government during the period that the money was not remitted.
8. The Magistrate in his judgment has also said that there is no direct evidence of actual breach of trust in the sense of the money being actually used for the private purposes of any of the three accused. I think that Section 409 of the Indian Penal Code cannot properly be construed as involving that any head of an office, who is negligent in seeing that the rules about remitting money to the treasury are observed, is ipso facto guilty of the offence of criminal breach of trust, and that something more than that is required to bring home the dishonest intention, which is one of the essentials for a conviction under Section 409 of the Indian Penal Code.
9. In the present case, for the reasons I have given, there is a reasonable doubt as to the accused intention. Therefore, I would allow the application and set aside the conviction and the sentence passed upon the accused, and direct the fine, if paid, to be refunded.
10. I agree.