A.M. Bhattacharjee, J.
1. The accused-appellant has been convicted by the learned Sessions Judge of Sikkim under Section 409, I. P, C. on his alleged plea of guilty and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rupees two hundred and in default to undergo rigorous imprisonment for six months more.
2. The case for the prosecution appears to be that the accused was posted as a Conductor to Bus No. SKM 1467 of Sikkim Nationalised Transport during the month of Nov., 1976 and that in such capacity the accused collected a sum of Rs. 2,826.60p. on account of freight and fare but misappropriated the said amount. Shri Tempo Rapgyal, Transport Officer of the Sikkim Nationalised Transport lodged a written report to that effect with the Officer-in-charge, Sadar Police Station, on 16-2-77 and on the basis of this report the case was registered. During the course of investigation it was revealed that the accused had been appointed as a Conductor under the Sikkim Nationalised Transport and was attached to the said Bus No. SKM 1467 and that during the month of Nov., 1976, the accused had to deposit a sum of Rs. 2,826.60p, which the accused had realised from the passengers along with eight booking charts; but the accused neither deposited the amount nor returned the booking charts in spite of several reminders. Later on when in Jan., 1977, Shri Kunzang Namgyal, Superintendent of the Sikkim Nationalised Transport, happened to meet the accused who paid him Rupees two hundred on that day which the Superintendent handed over to the Transport Inspector and the amount was thereafter deposited in Bank. The remaining amount of Rs. 2,626.60p. (sic) was not, however, paid or deposited by the accused and the accused also left Sikkim and started residing in Pedong in West Bengal. The accused was, however, arrested from Pedong and ultimately a charge sheet was submitted against him under Section 409 of the I.P.C. on the allegation that the accused in his capacity of a public servant committed criminal breach of trust in respect of the aforesaid amount of bus fare and freight.
3. It appears that the learned Sessions Judge who tried the accused examined four witnesses before framing the charge which was hereunder:
That you on or about the Nov. '76 at Gangtok being a Govt. servant to wit bug conductor in S. N. T. and in such capacity entrusted with collecting the bus fare committed criminal breach of trust in respect of cash Rs. 2,626.60p. (sic) and thereby committed an offence punishable under Section 409 of the I.P.C....
4. The four witnesses who were examined before framing of the charge were Shri Tempo Rapgyal, Transport Officer of the Sikkim Nationalised Transport at Gangtok, who was examined as P.W. 1., Shri Kunzang Namgyal, Superintendent, Transport in the Sikkim Nationalised Transport, who was examined as P.W. 2, Shri R. C. Sharma, Cashier in the Sikkim Nationalised Transport, who was examined as P.W. 3, and Shri K. P. Topden, S. I. of Police, who investigated the case and submitted charge-sheet and who was examined as P.W. 4.
5. P.W. 1, Tempo Rapgyal, only proved certain reports being Exts. 1 and 2 made to him by R.C. Sharma, P.W. 3, against the accused and also his report, being Ext. 3 to the Deputy Genaral Manager (Operation) of the Sikkim Nationalised Transport and also his report, being Ext. 4, to the Officer-in-Charge, Sadar Police Station which was treated as the First Information report. In Exts. 1 and 2 it was only alleged by P.W. 3, that the accused had not submitted the booking charts and in Ext. 3, the P.W. 1 alleged that the accused had not deposited any amount towards the fares and freights while in Ext. 4, P.W. 1 alleged that the accused had misappropriated the amount collected by him while he was attached to the said bus as the Conductor.
6. Kunzang Namgyal, P.W. 2, only stated that 'he came to know' about the misappropriation by the accused from the report of R.C. Sharma, P.W. 3. He also further stated that he thereafter met the accused in Gangtok Bazar while coming out of the Janata Bazar and that he asked him whether he had deposited the amount to which the accused replied in the negative. He further stated that the accused told him that he would be getting some money from Rabong and that the accused also gave him Rs. two hundred which he handed over to the Transport Inspector which was thereafter deposited in the Bank.
7. P.W. 3, R.C. Sharma, stated that 'the accused was entrusted with collection of bus fare from passengers in respect of Bus SKM 1467 with effect from 1-11-1976 to 20-5-76'. He further stated that 'the daily bus fares is entered in a booking chart by the conductor whenever a conductor is provided with a particular bus'. He stated further that 'during the period of entrustment the accused failed to deposit eight booking charts along with any money realised by him from passengers'. He stated further that thereafter he submitted his reports Exts. 1 and 2 to P. W. 1. He also stated that 'on 30-1-77 the accused deposited eight charts only without depositing the money'. These charts have been marked Exts. I to VIII.
8. K. P. Topden, P.W. 4, was the Investigating Officer who investigated the case and submitted charge-sheet and he only deposed about the seizure of the Exts. 1, 2 and 3 and the eight booking charts, the arrest of the accused and the submission of the charge-sheet and also proved the formal F. I. R., Ext. 5.
9. The prosecution case is, as will also appear from the Judgment of the learned Sessions Judge, that the accused-appellant was in the employment in Sikkim Nationalised Transport from March, 1976 to Nov. 1976 and that the alleged offence was committed in the month of Nov. 1976. But as I have already pointed out, the evidence of P.W. 3, R. C. Sharma, who is the only material witness on this point, is that 'the accused was entrusted with collection of bus fare from 1-11-76 to 20-5-76'. Obviously there cannot be any period from 1-11-76, that is, the month of Nov. 1976 to 20-5-76, that is, the month of May, 1976. At one stage I thought that the figure '76' in the date 20-5-76 was a typing mistake and it was meant to be 20-5-77; but the very prosecution case is that the First Information Report itself was lodged in Jan, 1977 and the accused absconded and was arrested in March, 1977; obviously, therefore, the date '20-5-76' could not be a mistaken substitute for 20-5-77. Be that as it may, let me consider as to whether on the evidence and other materials on record any charge under Section 409, I. P. C, could be framed, as was framed by the learned Sessions Judge against the accused in this case, because if the evidence and other materials on record in this case justified the charge as framed, then this appeal must be confined only to the question as to the extent or legality of the sentence but it will not be permissible to go into the question as to the legality of the conviction itself because of the provisions of Section 412 of the Cr. P.C., 1898
10. Under Section 412 of the Cr. P.C. 1898, where an accused person has pleaded guilty and has been convicted on such plea by any Court or Magistrate, other than a Magistrate of the Second Class or the Third Class, there shall be no appeal except as to the extent or legality of the sentence. But it is by now well-settled that though ordinarily in the case of a conviction on a plea of guilty there is a bar under Section 412 of the Cr. P.C. 1898, for an appeal except as to the extent or legality of the sentence, still if the facts alleged or disclosed do not amount to the offence for which a charge has been framed, a plea of guilty to such a charge is no bar for an appeal on merits and will not stand in the way of the accused being acquitted. Reference in this connection may be made to the decision of the Madras High Court in In re. U. R. Ramaswami : AIR1954Mad1020 and also to the Division Bench decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Mustaq Hussain : AIR1965MP137 where the said Madras decision has been relied on. Therefore, the question as to whether there were sufficient materials on record to justify the framing of the charge to which the accused-appellant appears to have pleaded guilty, is of great importance in this case.
11. Section 409 of the I.P.C. deals with criminal breach of trust by public servants and others and reads as under:
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The offence of criminal breach of trust has been defined in Section 405 of the I.P.C. as hereunder:
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'.
12. The material words are 'Whoever being in any manner entrusted with property, or with any dominion over property'. In order, therefore, that the provisions of Section 405, I.P.C. can be attracted the accused must be shown to have been entrusted with the property in respect of which a criminal breach of trust is alleged to have been committed or entrusted with any dominion over such property. Let me, therefore consider whether there is anything on record in this case to show that the accused was in any way 'entrusted' with the particular property, that is, the amount in respect of which a breach of trust has been alleged to have been committed by him. The exact connotation of the expression 'entrustment' as used in Sections 405 to 409 of the I.P.C. has by now been settled by several decisions of the Supreme Court. In Jaswantrai Manilal v. State of Bombay : 1956CriLJ1116 it has been observed by the Supreme Court (at p. 582) (of AIR) : (at p. 1123 of Cri LJ) that 'entrustment contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event. The person who transfers possession of the property to the second party still remains the legal owner of the property and the person in whose favour possession is so transferred has only the custody of the property to be kept or disposed of by him for the benefit of the other party.' In State of Gujarat v. Jaswantlal Nathalal : 1968CriLJ803 it has again been observed by the Supreme Court (at p. 701) (of AIR) : (at p. 805 of Cri LJ) that 'the expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner'. Therefore, as has been pointed out by the Supreme Court in the decisions noted above, one of the most important elements of 'entrustment' is that the property in respect of which criminal breach of trust is alleged to have been committed must have been made over or transferred or handed over by the aggrieved person, who continues to be the owner thereof, to the accused. In this case I do not find anything on the record wherefrom it can be even said to have been alleged that the property in question being the amount of Rs. 2826.60p. or the possession thereof was ever 'made over' or 'transferred' or 'handed over' by anyone on behalf of the Sikkim Nationalised Transport to the accused and that being so, in view of the decisions of the Supreme Court noted above, the most important element of entrustment within the meaning of Sections 405/409 of the Indian Penal Code is non est. If one person has employed another person to collect rents payable to the former and the latter after collecting the rents from the persons by whom the rents are payable does not pay the amount to his employer but converts the same to his own use, he may be said to have committed dishonest misappropriation of the amount of rent, but cannot be said to have committed any criminal breach of trust in respect of the said amount, because in that case the person employed to collect rent cannot be said to have been entrusted with the amount of rent collected as the amount of rent collected was at no point of time 'made over' or 'transferred' or 'handed over' by the employer to the person employed. In this case, therefore, even assuming that the accused was a conductor of the Bus of the Sikkim Nationalised Transport as alleged and in such capacity collected bus fares amounting to Rs. 2826.60p. as alleged or any other amount and failed to deposit the said amount, the accused can never be said to have been entrusted with that amount because the said amount was never 'made over' or 'transferred' or 'handed over', to the accused by anyone on behalf of the Sikkim Nationalised Transport. It also appears that in the charge itself the learned Sessions Judge did not state that the accused was entrusted with any amount but only stated that the accused was 'entrusted with collecting the bus fares'. I am afraid that being entrusted with the doing of a job is not the same thing as being entrusted with any property within the meaning of Section 405 and other cognate Sections of the I.P.C. even though some money or other property may come into the hand of the person in the course of his doing such job. That being so, I am of opinion that there was absolutely no material on record to frame a charge under Section 409 against the accused. And if the charge framed was such as could not be framed on the materials on record, a plea of guilty to such a charge is no plea in the eye of law and cannot be relied on by any Court, as the basis for any conviction. The learned Sessions Judge was, therefore, wrong in convicting the accused on the basis of his plea to the charge as framed by him and the order of conviction and sentence passed by him must, therefore, be set aside.
13. The learned Advocate-General, appearing for the State, submitted that there are sufficient materials on record to justify framing of a charge under Section 403, I.P.C. and as such if this appeal is going to be allowed by us, the case should be sent back to the trial Court for retrial on a charge under Section 403 of the I.P.C. As we have already observed in Lakpa Sherpa v. State of Sikkim Criminal Appeal No. 13 of 1976, relying on the observations of the Supreme Court in Machander v. State of Hyderabad : 1955CriLJ1644 , a retrial is not to be ordered because the prosecution did not know how to produce proper materials or evidence on record or the trial Judge failed to properly try the case or to regulate the trial before him.
14. But even that apart, I am not satisfied that in this case on the materials on record a charge under Section 403, I.P.C. can or could be framed, as urged by the learned Advocate-General. I have already discussed the evidence, both oral and documentary, on record and from a scrutiny thereof I do not find anything from which it can be safely inferred that any amount of bus fare and freight was collected by or came into the possession of the accused. The learned Advocate-General, however, urged that at the stage for considering the question of framing charge, the Court should not scrutinise the evidence to such an extent and contended further that if the case is sent back for retrial, the prosecution might be in a position to prove criminal misappropriation by the accused by further or better evidence. But I have no doubt that a case should not be sent back for retrial simply because the prosecution expects to be wiser and to adduce further and better evidence. As to the contention of the learned Advocate-General that the Court should not scrutinise or closely examine the materials on record at the time of framing charge, I would only like to refer to a recent decision of the Supreme Court in State of Karnataka v. L. Muniswamy : 1977CriLJ1125 , where it has been observed by the Supreme Court (at p. 1494) that 'the order of framing a charge affects the person's liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge'. The Supreme Court observed further that the Court cannot and should not blindly accept the decision of the prosecution that the accused be asked to face a trial. It is not surely the law that the charge-sheet submitted by the police is invariably to be followed by a charge framed by the Court and, in my view, the law is that even at the stage of framing the charge the Court must determine whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. As I have already pointed out, on the materials on record in this case, a case of dishonest misappropriation of property cannot be said to have been made out because even if the evidence adduced in this case as discussed hereinbefore, remains unrebutted, the accused cannot be convicted for dishonest misappropriation of property as there is no clear evidence on record to show that the accused in fact realised any amount as bus fare or freight or in any way came into possession thereof. In that view of the matter, an order for retrial in this case would be a glaring abuse of the process of the Court.
15. Before parting with the case 1 would like to draw the attention of the learned trial Judges to the legal position that a conviction on a plea of guilty is an exception to the general rule that the prosecution has to prove its case by legal, reliable and unimpeachable evidence. The plea of guilty of an accused person is not evidence in the ordinary sense of the term as defined in Section 3 of the Indian Evidence Act, 1872. The Court, therefore, must exercise very great care before making such a plea the foundation of a conviction. Since such an extraordinary course has been sanctioned by the legislation itself (e.g. Section 255 of the Cr. P.C. 1898), it is not for the Courts to consider its propriety. But, as already pointed out, the course being itself extra-ordinary and an exception to the course of ordinary criminal trial or ordinary notion of criminal jurisprudence, the caution to be exercised by the Courts before resorting to such extra-ordinary course should also be extra-ordinary.
16. Under the circumstances the appeal is allowed, the order of conviction and sentence passed by the learned Sessions Judge is set aside and the accused is acquitted. The accused be set at liberty forthwith, if not wanted in connection with any other case.
Man Mohan Singh Gujral, C.J.
17. I agree.