W. Comer Petheram, C.J.
1. The accused Imdad Khan has been convicted upon two charges, framed under Section 409 of the Penal Code, of criminal breach of trust, and upon three charges framed under Section 50 of the Post Office Act (XIV of 1866). The accusation against him under the last-mentioned section is, in substance, one of falsifying documents with the object of concealing or assisting towards the criminal breach of trust to which the other charges relate. So that, as the Sessions Judge has held, the charges all stand or fall together; and if the accused be found guilty under any one of them, he must also be found guilty under the others, though it is not necessary that there should be a separate sentence in respect of each. These being the matters charged, it is necessary, in the first place, to see what are the facts which are admitted, or, if not admitted, which have been established by the prosecution, and whether they constitute any offence; next, to ascertain what offence, if any, these facts, when taken together, constitute under the Penal Code.
2. The facts, as I gather them, are, that in the Post Office Service of these Provinces there is a department called the Railway Mail Service, and, as apart of this, there is at Allahabad a large store-house, in which are kept the stores required for the use of that department. There is no evidence upon the record which shows by whom or upon whose authority such stores are ordered, or whose mind it is that decides from time to time what stores are required. It is, however, clear that the accused Imdad Khan had for some years held an office in the Railway Mail Service at Allahabad as 'Examiner' and 'Superintendent' of stores. How long he filled this office is not shown. It is necessary next to ascertain, so far as the evidence show us, what his duties were. There is nothing on the record to suggest that he had any power of deciding what stores were required, or of giving any order for them. His duty was to supervise the stores when they came into stock, and to pass them as according to the sample, if they were of the quality they should be, and of the amount ordered and charged for. This was his business, so far as examination of the stores is concerned. Besides this it was his duty, after the goods had come into stock and had been passed, to check the accounts of the tradesmen supplying them, and, after checking them, to forward in a lump all the tradesmen's bills which at that time were due--having first got them countersigned by his superior officer--to the person whose business it was to pay them. Then, having obtained the money to be paid to the group of tradesmen, it was his duty to distribute it among them.
3. The charge against Imdad Khan is that, having obtained moneys from Government for the purpose of paying a particular tradesman, who is said to have supplied goods to this store, he appropriated these moneys to his own use, and thereby committed the offence of criminal breach of trust.
4. We must therefore see how the evidence upon this charge stands. The case set up by the prosecution is as follows: It is said that a particular firm at Calcutta, trading under the name of Tarni Charan Dat and Co., had made a contract with Government for the supply of certain stores. The precise terms of the contract are not before us, but, from the action of the parties, and from the heading of the memorandum, it appears that the contractor, Tarni Charan Dat, agreed to supply stores of a certain class, for a period of two years, at a price specified on a list or schedule of prices. I think it must be taken as proved that the contract between the parties was that Government, on the one hand, bound themselves for a period of two years to take these stores from the firm, and, on the other hand, the firm bound themselves for the same period to supply the stores at the rates agreed on. Among the articles enumerated in the schedule was a cloth called 'qaszi,' and the schedule price for this was Rs. 1-12-6 a piece. The contractors therefore were under an obligation to supply Government with as much gazzi cloth as might be required at, Here, then, we have the evidence of two persons who, according to one of them, are accomplices of Imdad Khan in the offence of criminal breach of trust. One of the three criminals as in the dock, and the other two are called as witnesses to prove the charge against him. One of them is not only an accomplice, but, if the case for t e prosecution is true, must have falsified accounts in order to assist the accused. The other, if his statements are true, in effect, destroys that case. How is it possible that any Court could safely convict the prisoner upon such evidence and under such circumstances as these
5. The only other matters relied on by the prosecution are the books of Tarni Charan Dat. These have been examined with the object of proving the untruth of Imdad Khan's statement that he handed over the whole price to the contractors, because they are said to show that the whole price was never received. But the books are evidence only to this extent--that, in giving his testimony, Tarni Charan Dat might look at them for the purpose of refreshing his memory. They cannot, however, carry his evidence any further, nor do they alter the fact that the state of things alleged by Tarni Charan Dat rests upon his evidence, and upon his evidence only, denied by the appellant, and contradicted on oath by Sadhu Lal.
6. We have therefore the common case in which the only evidence against an accused person is the evidence of his accomplice. It is not necessary for me to refer in detail to the numerous cases in which Judges of the greatest eminence and experience, both in this country and in England, have held that unless evidence of this kind is corroborated in material particulars, it cannot safely be relied on. The reasons upon which this opinion is based are various. It is plain that where a witness against an accused person tells a story which equally incriminates himself, there is no reason for preferring his story to the prisoner's. If the story of Tarni Charan Dat is true, then he and Imdad Khan are both of them rogues, and there is no ground for regarding either as more trustworthy than the other. By way of authority for this view, I need only refer to the judgment of my brother STRAIGHT in the case of Empress v. Ram Saran Weekly Notes. 1885 p. 311 in which the English cases are collected, and which fully explains the grounds upon which the highest authorities have decided that it is not safe to depend upon this class of evidence. It is enough for me to say that I entirely and absolutely agree with that judgment of my brother Straight, and with his opinions expressed thereon, which the authorities he refers to establish. For these reasons, I am of opinion that it would be unsafe to convict the appellant Imdad Khan upon evidence of this character, which is the only evidence against him, and I hold that he must be acquitted of the charges of criminal breach of trust.
7. Next, with reference to the charges of falsification of accounts, they stand or fall with the charges of criminal breach of trust. They are charges of the falsification of the accounts which were sent by Tarni Charan Dat, showing that the goods were being supplied under the original contract at the original prices, with the object of enabling the criminal breach of trust to be carried out. They are, in fact, substantially the same accusation, and depend upon the same evidence; and, for the reasons I have already given, I think that, upon these charges also, the accused must be acquitted.
8. I desire now to make a few observations upon the law of criminal breach of trust in cases of this nature, with reference to the reduction of the price of goods.
9. Mr. Hill has laid much stress upon a dictum of Lord Justice Mellish in Hay's Case In re The Canadian Oil Works Corporation L.R. 10 Ch. App. 593. It is to the effect that, if a master sends his servant to pay a bill, and gives him money for the payment, then if the tradesman makes the servant a present, the master is entitled to the benefit of it, because it amounts to a reduction of the price of the goods.
10. Now, if the account is an open one, that is, an account of which the items have never been checked or settled, and if the transaction amounts to a taxation of the bill and a reduction of the price by the servant, it is obvious that the servant obtains the reduction for his master; that the money in his hands always remains the master's property, and that if he appropriates it, he steals it. But if the master himself has settled the account with the tradesman for a specific sum, and he sends the servant with the money, and the servant after making the payment, asks the tradesman for a present, then, if the servant takes the present and keeps it, he is not guilty of stealing, because he has no intention to steal: the money is given to him by a person whom he believes to have a right to give it. It may be that, according to the strict equitable doctrines of the Court of Chancery, the servant is bound to account to his master for the money. But, however this may be, his act is a very different matter from a criminal offence, and I do not think he can be convicted of criminal breach of trust merely because, by a mere equitable doctrine of the Court of Chancery, it was obligatory upon him to render an account.
11. In the present case, however, this question does not really arise. The case for the prosecution is, not that part of the price was given back to the accused, but that he actually stole it by reducing it in pursuance of a conspiracy. And as this case rests entirely upon the evidence of the accomplices who are said to have conspired with him, I think, as I have already said, that it cannot safely be regarded as proved.
12. I have been pressed by the learned Public Prosecutor to alter the findings, so as to convict Imdad Khan of some other offence under some other provision of the law. For my part, I have serious doubts as to whether I could alter the finding in any case in such a manner. It is, however, enough for me to say that, in my opinion, such a course would not be right in the present case. If Imdad Khan is guilty of some other offence, he may be charged and tried for it. Upon this point I desire to express no opinion. All that I am concerned with is the offence for which he has been charged and tried; and I am of opinion that the evidence upon which he has been convicted is not such as can safely be relied on. Under these circumstances, I allow the appeal, and, setting aside the conviction and sentence, direct that the prisoner be released.