Manohar Pershad, J.
1. This is a revision on behalf of the accused against the judgment of the Sub-Divisional Magistrate, Bhimavaram dated 28-11-1955 dismissing his appeal and affirming the judgment of the Sub-Magistrate, Bhimavaram, holding him guilty under Section 408, Indian Penal Code and sentencing him to 6 months rigorous imprisonment. The facts which gave rise to this revision are ; the accused was working as a salesman of Ithampudi Co-operative Marketing Society at Kantheru from 11-11--1948 to 30-6-1950.
The procedure adopted by the society for the issue of cloth to the salesman and taking remittances of the sale proceeds from the salesman was as follows : A register called salesman liability register was maintained at the Head Office. The salesman made out indents under his signature and handed them over at the Head Office where the cloth was issued on each indent. The cloth issued on indents was entered in the salesman liability register on the date of issue in terms of its value in rupees, annas and pies. Against this entry in the salesman liability register both the salesman and the Secretary initialled in token of the issue as well as the receipt of the cloth.
Whenever the salesman made remittances the same were entered in the salesman liability register under the initials of both the Secretary and the salesman and the liability of the salesman reduced to the extent of the money remitted. Besides the salesman liability register there were other registers such as the General Cash Book, the Stock Book, the daily Sales Register etc., in which the transactions were also entered. The Liability Register which was maintained with reference to the cloth issued and the money remitted by the appellant from 1-7-1949 to 30-6-1950 is Ex. P. 5.
On 1-7-1949 the petitioner was issued cloth worth Rs. 3,809-11-0 on indents bearing Nos, 1 to 4. Thereafter the accused was submitting indents from time to time and drawing cloth. He was also making remittances from time to time. Both the entries of debit and credit have been initialled by the accused and the Secretary, By 30-6-1950 the accused was issued cloth valued at Rs. 15,016-11-2. The remittances made by the accused came to Rs. 11,879-9-7. On 30-6-1950. there was a stock valued at Rs, 1,293-6-7 with the accused. Thus there was a balance of Rs. 1,843-11-0 unaccounted.
The accused subsequently paid a sum of Rs. 360/- on 29-8-1951 and Rs, 200/- on 3-11-1951. The accused was charge-sheeted under Section 408 I, P.C. He denied the charge. His case was that he rendered correct accounts for the stocks received, and that nothing more was due from him and that it was not a case of misappropriation. Four witnesses were examined on behalf of the prosecution. The accused examined four witnesses by way of defence. On the evidence produced the Sub-Magistrate held the accused guilty and sentenced him i.s above. His judgment was confirmed in appeal, and hence this revision.
2. The learned Counsel for the petitioner relying on the case of King Emperor v. V. Krishnan 1939 Mad WN 1213 : A.I.R. 1940 Mad 329 (A), and Achayya v. Emperor 1936 Mad WN 825 (B), contended that there was absolutely no evidence in the case to prove that the petitioner had dishonestly misappropriated the amount, and unless that is established the accused could not be held guilty. It was further contended that the appellate Court relying on Section 114 of the Evidence Act has dismissed the appeal raising a presumption against the accused. This, he contends, is not proper.
Though the accused in this case has not accepted the liability in Ex. P. 7 there is the statement of P.W. 4 to show that the accused had admitted his liability. Both the courts, on the evidence, have also held that the accused was liable to the extent of R 1,283-11-0. The question that arises is whether the accused could be held guilty under Section 408, IPC which is as follows ;
Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of the property, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
Criminal breach of trust is defined in Section 405 to mean:
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.
3. It follows that to bring home the guilt of the accused the prosecution has to prove that the accused dishonestly misappropriated or converted to his own use the property entrusted to him. What is contended on behalf of the prosecution is that the accused had to account for the amounts from 1-7-1949 to 30-6-50, and since he did not do so that would amount to misappropriation. The accused was removed from service by 30-6-1950. On 29-8-1951 and 3-11-1951 the accused deposited Rs. 360/- and Rs. 200/- respectively. There is still a balance of Rs. 1,283-11-0 to be recovered from the accused.
It would appear from this that the accused did not account for the amount remaining in his possession. Excepting the fact that he has not accounted there is no evidence of any misappropriation or dishonest use. The appellate Court, I find, has relied on Section 114 of the Evidence Act and raised a presumption against the accused that he musl have misappropriated the amount. 1939 Mad WN 1213 : A.I.R. 1940 Mad 329 (A) was also a case of misappropriation. The charge against the accused was that he failed to account, and thereby committed criminal breach of trust.
It was held that mere retention of money entrusted to a person without any misappropriation, even though he was directed by the person to pay it to another or to deal with the money in a particular way unless there is some actual user by him which is in violation of law or contract, is no criminal breach of trust and even if there is such user there must be dishonest intention. 1936 Mad WN 825 (B), was also a case of criminal misappropriation. The charge in this case against the petitioner was that he committed criminal breach of trust in respect of a sum of Rs. 1,057-2-0 with which he was entrusted in his capacity as an agent of the Zamindar of Suravaram.
The money was said to have been collected on various occasions. The collection was admitted by the accused from the outset. The question for decision was whether he had dishonestly misappropriated the amount. It was held
the fact that the accused failed to account for the money which had been entrusted to him by itself would not be sufficient to show that he dishonestly misappropriated in the absence of any evidence to show that the money was utilised by him in a way which was inconsistent with the trust.
In both these cases Section 114 of the Evidence Act has not been discussed. The question that falls for decision is whether in the absence of any evidence as to dishonest misappropriation merely on the presumption arising under Section 114 of the Evidence Act the accused could be held guilty. In a case like this, where the accused has come forward with a plea, which relates to settlement of accounts and where the prosecution has not produced any evidence of any dishonest misappropriation, I am of the opinion that the accused cannot be convicted merely on the basis of any presumption.
The essential ingredient of Section 408, IPC is dishonest misappropriation. The onus of the general issue i.e., dishonest misappropriation lay on the prosecution, and in the absence of any evidence of dishonesty the accused, in my opinion is entitled to acquittal. The revision is allowed, the judgment of the Sub-Divisional Magistrate and Sub-Magistrate are set aside and the accused is acquitted.