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Emperor Vs. Sri Kishan (or Sri Krishna) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1935All970; 159Ind.Cas.621
AppellantEmperor
RespondentSri Kishan (or Sri Krishna)
Excerpt:
.....to rely upon the books and consequently it would be unsafe to hold that moneys stated in the income register to have been received on various dates were in fact actually received by the opposite party. further, there was the evidence of babu gur prasad and tribeni shan fear who knew the opposite party's handwriting well and each of these witnesses swore that the handwriting in the income register was the handwriting of the opposite party. 13. it may be of course that he was not at the college on 22nd september 1932 and that he entered up the income register on the following day or some days later, but the entry which fee made for 22nd september 1932, does clearly show that in respect of that day he did receive rs. 389. it follows therefore that on these three days he failed to..........kept by him. he also entered up the cash book on that date, but the entry relating to tuition fees received by him for that date is an entry of rs. 124 only i.e. rs. 100 less than the sum entered in the income register. further it is said by the prosecution that receipts for tuition fees given by the opposite party on 12th july 1932, clearly establish that he did actually receive the sum of rs. 224 on that date. as the income from tuition fees shown in the cash book was rs. 100 less than the sum actually received by him, the amount paid into the bank that day consequently was rs. 100 less than the amount which should have been paid in. on 20th september 1932, it is alleged by the prosecution that tuition fees amounting to rs. 430-9-0. were actually received by the opposite party and.....
Judgment:
ORDER

1. The opposite party to this reference was tried before the Temporary Sessions Judge of the Allahabad District sitting with a Jury for an offence under Section 408, Penal Code, the allegation being that he had committed criminal breach of trust in respect of certain moneys entrusted to him in his capacity as a clerk or servant of the Kayestha Pathshala Intermediate College. He was found not guilty by the Jury, but the Sessions Judge refused to accept the verdict. He was of opinion that the case against the opposite party had been established beyond all shadow of doubt and that it was necessary in the interests of justice to refer the matter to this Court for such orders as this Court might deem proper in the circumstances.

2. This High Court has undoubted jurisdiction to disregard the verdict of the jury and to convict the opposite party if it is of opinion that the verdict of the Jury was perverse and it is the case for the Crown in this reference that the verdict returned by the Jury was wholly against the weight of evidence and such that a body of men acting reasonably and honestly could not possibly have returned. In other words it is boldly contended by the Crown that the verdict returned in this case was clearly perverse. The charge against the opposite party was that being a clerk or servant of the Kayestha Pathshala Intermediate College he committed criminal breach of trust in respect of three sums of money entrusted to him, viz. Rs. 100, on 12th July 1932, Rs. 100 on 22nd September 1932 and Rs. 50 on 22nd October 1932.

3. The case for the prosecution was that the opposite party had been employed as an accountant by the Kayestha Pathshala Intermediate College for some considerable time before these alleged defalcations. It was said that as such accountant it was part of his duty to receive tuition fees and account for the same. It is alleged that the students of classes 11 and 12 paid their tuition fees direct to the opposite party who gave signed receipts to each student for such payment. On the other hand the students of classes 7 to 10 paid their tuition fees to their respective teachers who later handed the amounts collected daily to the opposite party who acknowledged the receipt of the same by signing in the appropriate place on the daily attendance register kept by the various teachers. For the purposes of accountancy it was the duty of the opposite party to keep two books, viz. the income register in which the daily income received by him from different sources was entered and a cash book in which both the daily income and expenditure was entered. It is said that it was the opposite party is duty to pay the income received daily as stated in the Cash Book into the account of the College at the Imperial Bank of India.

4. It is alleged that on 12th July 1932, the opposite party received tuition fees to the amount of Rs. 224 and entered such an amount in the income register kept by him. He also entered up the Cash Book on that date, but the entry relating to tuition fees received by him for that date is an entry of Rs. 124 only i.e. Rs. 100 less than the sum entered in the income register. Further it is said by the prosecution that receipts for tuition fees given by the opposite party on 12th July 1932, clearly establish that he did actually receive the sum of Rs. 224 on that date. As the income from tuition fees shown in the Cash Book was Rs. 100 less than the sum actually received by him, the amount paid into the bank that day consequently was Rs. 100 less than the amount which should have been paid in. On 20th September 1932, it is alleged by the prosecution that tuition fees amounting to Rs. 430-9-0. were actually received by the opposite party and that receipts were given either from the receipt book or on the attendance registers for such an amount. This amount is shown to have been received in the income register kept by the opposite party, but the amount of tuition fees shown in the Cash. Book as having been received is Rupees 330-9-0, i.e. Rs. 100 less, than the amount actually received and therefore Rs. 100 less was paid into the Bank that day than it should have been.

5. On 22nd October 1932, the prosecution alleged that tuition fees amounting to Rs. 389 were received by the opposite, party and receipts from the receipt book or on the attendance registers for such an amount were actually given by the opposite party. The sum of Rs. 389 is. shown to have been received as tuition fees on this day in the income, register kept by the opposite party, but the entry in the Cash Book kept by the opposite party shows that the amount of tuition fees received on this day was Rs. 339 viz : Rs. 50 less than the amount actually received. Consequently it is said by the prosecution that the amount paid into the Bank on this day was Rs. 50 less than it should have been.

6. It is the allegation of the prosecution that the opposite party received these three sums in his capacity as accountant of the Kayestha Pathsihala Intermediate College and misappropriated them or converted them to his own use. In April 1933, suspicion fell upon the opposite party and he was ordered to hand over the books kept by him. He handed over all the books except two pass books which were however later found in a locked almirah. No inference can be drawn one way or another from his failure to hand over the two pass books. The opposite party however did not wait to face any possible charge or charges which, might arise from an investigation of the books. He absconded and was not arrested until 12th May 1934, when he was discovered in Hathpipla in Central India living under an assumed name of Ram Narain Varma.

7. To this charge of criminal breach of trust in respect of these three sums the opposite party pleaded not guilty. He admitted that he was an accountant employed by the Kayestha Pathshala Intermediate College, but denied that he had misappropriated any sums whatsoever. He boldly alleged that it was not his duty to receive any tuition fees and that he in fact never did receive such fees. He further denied that it was his duty to keep the income register or that he had ever kept it and denied specifically that the entries in that register were in his hand-writing. He admitted that it was his duty to keep Cash Book and that he had so kept it, but he alleged that he merely entered it up from a daily slip sent to him by the head clerk who presumably received the moneys and accounted for them. In short his case was that he was an accountant only in name and that he did none of the work which an accountant usually does. His case briefly put was that he did not in the course of his duty receive any sums whatsoever as tuition fees and therefore could not have misappropriated the three sums mentioned in the charge. It would appear from the opposite party's defence that the person mainly responsible for the receipt of moneys was the head clerk and that if any moneys were misappropriated they must have been misappropriated either by him or by the principal of the College whose duty it was to supervise the servants under his charge.

8. The case put forward by the defence in the Sessions Court was an absurd one and manifestly false as will be seen hereafter. Mr. Mala viva who has argued the case on behalf of the opposite party very fully and ably has virtually abandoned this defence and in our view quite rightly. The case put forward on behalf of the opposite party now is that such grave irregularities were daily committed in this Institution, that it is impossible to rely upon the books and consequently it would be unsafe to hold that moneys stated in the income register to have been received on various dates were in fact actually received by the opposite party. That being so, it is said that no Court could safely hold that any part of the sums shown as having been received by the opposite party on the dates in question had ever been received and misappropriated. This is an entirely new case and the prosecution witnesses had no real opportunity of dealing with it.

9. It must be remembered however that if there were any irregularities, such were in the main committed by the opposite party himself whose duty it was, according to the prosecution, to keep the books and to receive moneys on behalf of the Institution. It is indeed a bold and strange defence for a person alleged to be guilty of misappropriation to plead that his own default raises grave doubts as to his guilt. In our view this line of defence, clever as it is, is an afterthought and we cannot attach any serious weight to it. In our view the result of this reference must stand or fall upon the strength of the evidence tendered by the prosecution. To establish the offence under Section 408, Penal Code, the prosecution had to prove:

1. That the opposite party was a clerk or servant of the Kayestha Pathshala Intermediate College. This was abundantly established by the evidence of Mr. Gokal Chand, the evidence of Mr. Harnandan Prasad and a number of school teachers and clerks called on behalf of the prosecution. His employment as an accountant is admitted by the opposite party though he denies that he performed the duties usually attaching to such an office.

2. That in such capacity of clerk or servant he was entrusted with tuition fees paid by the students. The opposite party denied that he was ever 'entrusted with such money, but it was abundantly proved by pupils', school teachers and the Principal that the students of classes 11 and 12, paid their tuition fees direct to the opposite party and that the tuition fees of the students of classes 7 to 10 were paid over by the school teachers of those classes daily to the opposite party. The evidence upon this point is overwhelming and there is only the opposite party's denial to the contrary.

3. That the opposite party misappropriated or converted to his own use the three sums alleged from money(c) entrusted to him. The income register was put in evidence and this book showed that tuition fees amounting to Rs. 224 were received by the opposite party on 12th July 1932, tuition fees amounting to Rs. 430-9-0 on 22nd September 1932, and tuition fees amounting to Rs. 389 on 22nd October 1932. The Cash Book kept by the opposite party was put in evidence and this book showed that tuition fees amounting to Rs. 124 only were received by the opposite party on 12th July 1932 and Rs. 330-9-0 only on 22nd September 1932, and Rs. 339 only on 22nd October 1932. In short the amount shown by the opposite party in the Cash Book as having been received by him on these three dates is Rs. 250 less than the amount shown to have been received on the same dates in the income register.

10. As we have stated previously the opposite party admitted that he entered up the Cash Book, but denied that he was in any way concerned with the entries made in the income register. We have had an opportunity of scrutinising both these books and. the handwriting in both of them is obviously the same and as such must have been obvious to the Jury if they had examined these books with any care. Further, there was the evidence of Babu Gur Prasad and Tribeni Shan fear who knew the opposite party's handwriting well and each of these witnesses swore that the handwriting in the income register was the handwriting of the opposite party. Mr. Gokal Chand, the Principal, was not prepared to swear that the entries in the income register were in the handwriting of the opposite party, but he did give evidence to the effect that it was the opposite party's duty to collect tuition fees and enter the amounts in the income register. Upon the evidence it was in our view established beyond all doubt that it was the duty of the opposite party to keep the income register and further that he did keep it and make the entries dated 12th July 1932, 22nd September 1932 and 22nd October 1932.

11. It was further in our view proved that the opposite party had actually received the amounts shown on these three dates in the income register. The opposite party denied that he had ever received any tuition fees, but the evidence of Mr. Gokal Chand and that of the students and school teachers previously referred to is overwhelming and is to the effect that he did actually receive tuition fees either directly from the students or from the school teachers. Further the receipt books which were proved to be in the opposite party's handwriting and indeed admitted to be so by the opposite party himself and the attendance registers is how that on 12th July 1932, 22nd September 1932 and 22nd October 1932 he did receive the sums which are shown to have been received by him in the income register. These documents were put in evidence, but it does not appear that the learned Judge laid any great stress upon them. We have however had the receipts and attendance registers for these particular days carefully checked and it is abundantly clear that on the days in question the opposite party did give receipts for the amounts shown to have been received by him in the income register.

12. An attendance register was put in evidence which the opposite party used to sign to. show that he was on duty. He did not however sign this register on the 22nd of September and this shows that foe was either not at the College on that day or that he somehow or other omitted to sign it. He did however make an entry in the income register for 22nd September 1932, which strongly suggests that he was at the College on that day.

13. It may be of course that he was not at the College on 22nd September 1932 and that he entered up the income register on the following day or some days later, but the entry which fee made for 22nd September 1932, does clearly show that in respect of that day he did receive Rs. 430-9-0 as tuition fees and further the attendance registers and receipt books show that in respect of tuition fees paid on that day he actually gave receipts amounting to Rs. 430-9-0. The fact that his signature does not appear on the attendance register on 22nd September 1932, does not cast any doubt, upon the fact that he received the sum alleged by way of tuition fees in respect of that particular day.

14. The Cash Book was proved to be in the handwriting of the opposite party by the witnesses previously referred to and indeed the opposite party himself admits that he kept this book. This book shows that the total tuition fees received on these three particular days is Rs. 250 less than the amounts shown to have been received in the income register and consequently the amount paid into the Bank was Rs. 250 less than it should have been. The evidence of the accountant makes it abundantly clear that the payments into the Bank corresponded with the entries in the Cash Book and not with the entries in the income register. It follows therefore that if the opposite party received the sum shown in the income register he did not pay the whole amount into the Bank and that in respect of these three particular days he paid into the Bank Rs. 250 less than he actually received. The opposite party's version was that it was not his duty to pay the moneys into the bank and that he merely entered up the Cash Book from a daily slip given to him by the head clerk. This is obviously an absurd statement because the head clerk could have entered up the Cash. Book himself quite as easily and quickly as making out a daily memorandum or slip from which the opposite party had to enter up the Cash Book. The evidence of Mr. Gokal Chand and the other witnesses proves beyond all doubt that the opposite party did handle the moneys, that foe did keep the Cash Book and that he did pay moneys into the Bank.

15. It was therefore in our judgment, proved beyond any possible doubt that the opposite party was responsible for moneys received from students as tuition fees. It was his duty to receive the money and to enter up such receipts in the income register and in the Cash Book and to pay the moneys shown in the Cash Book into the account of the College at the Imperial Bank. It was further proved that on the days in question he had received sums of money as tuition fees and had correctly entered such sums in the income register. It was further proved that he had made false entries in the Cash Book and had paid leaser sums into the Bank. In short the evidence abundantly establishes that on 12th July 1932, he accounted for only Rs. 124 as tuition fees, whereas he in fact received Rs. 224 and that on 22nd September 1932, he accounted for only Rs. 330-9-0 as tuition fees, whereas in fact he received Rs. 430-9-0 and that on 22nd October 1932, he accounted for only Rs. 339 as tuition fees, whereas in fact he received Rs. 389. It follows therefore that on these three days he failed to account for a total sum of Rs. 250 which he had received on behalf of his employers in his capacity as an accountant of the College. It was of course quite impossible for the prosecution to show what the opposite party had done with this sum, but the only inference that can possibly be drawn from the facts is that he, in some way or another, misappropriated the money or converted it to his own use. There can in our judgment be no other possible explanation for the differences in the amounts appearing in the income register and in the Cash Book and in the amounts paid into the Bank.

16. The opposite party's subsequent conduct in absconding and using the name of Ram Narain Varma which was clearly proved is entirely consistent with his guilt and is, in our judgment, wholly inconsistent with his innocence. These were the facts which were placed by the prosecution before the Jury and in our judgment their verdict of not guilty in the circumstances was clearly perverse. In the absence of some reasonable explanation for the differences between the amounts proved to have been received by the opposite party and the amounts paid into the Bank, a Jury acting honestly and reasonably were bound to hold that the opposite party had misappropriated such sums. In our judgment upon the evidence in this case the verdict of the Jury was clearly perverse and the learned Judge acted properly in refusing to accept it and in referring the matter to this Court.

17. In the result therefore we accept this reference and convict the opposite party of an offence under Section 408, Penal Code, and sentence him to a term of three years rigorous imprisonment. The sentience will run concurrently with a sentence of five years which we understand has been imposed by the Temporary Sessions Judge of the Allahabad District for some other offence (Sessions Trial No. 47 of 1934). The accused must surrender to his bail.


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