Shiv Dayal, J.
1. This is an appeal against the respondent's acquittal of the offence under Section 409, Penal Code.
2. The Magistrate 1st Class, Jabalpur, had found that the respondent, Promod Mategaonkar, an Upper Division Clerk in the office of the M. P. Electricity Board, Jabalpur, embezzled a cheque for Rs. 3423.50 nP. of the Electricity Board in purchasing for himself an auto-cycle and thereafter a motor cycle from Messrs. Janta Motor Cycle Co., Jabalpur. He was held guilty of the offence punishable under Section 409 of the Penal Code and sentenced to one year rigorous imprisonment and a fine of Rs. 1,000/-, or, in default of payment of fine, to a further term of rigorous imprisonment for four months. As regards the disposal of the motor cycle seized from the respondent, he directed that as it was purchased with the money belonging to the M. P. Electricity Board, it shall be delivered to the Board. The Third Additional Sessions Judge, Jabalpur, acquitted him holding, in main, that entrustment was not proved. Aggrieved by the appellate judgment and order of acquittal the State has filed this appeal,
3. Case for the prosecution was that in pursuance of a conspiracy between Mategaonkar and Ghosh, who were employed as clerks in audit and account section of the Electricity Board, they tamper-ed with the duplicate copy of an order placed by the Electricity Board with Vijay Trading Corporation, Jabalpur. The name 'Vijay Trading Corporation' was scored oat and in its place the name 'Janta Motor Cycle Co., Jabalpur' was overtyped. On the basis of a forged bill dated 19th October 1958, purporting to have been received from the Janta Motor Cycle Co., a cheque No. 199832 dated 2nd December 1958 was drawn for Rs. 3423.50 nP. in favour of the Janta Motor Cycle Co. This cheque was handed over by Mategaonkar to the Janta Motor Cycle Co. against the purchase of a Motor Cycle for himself, representing that a loan had been advanced to him by the Electricity Board. The cheque was encashed by the Janta Motor Cycle Co. through the Central Bank of India Ltd , on 4th December 1958. In fact, the M. P. Electricity Board had not placed any order with the Janta Motor Cycle Co. Mategaonkar manoeuvred all this to obtain the cheque and with this money he purchased a motor cycle for himself. The above mentioned clerks thereafter removed the bill, debit slip and the order on which payment was made.
4. When the matter came to light, the Superintending Engineer of the Electricity Board recorded statements of Mategaonkar and Ghosh. Mategaonkar admitted having committed the embezzlement. He said that one day, while he and Ghosh were travelling in a railway train between Satna and Jabalpur and were sitting in the dining car, it occurred to them that a lot of material was lying uncontrolled and the procedure of the store works was defective so that they could make use of it and purchase a motor cycle with the Board's money. Then he manoeuvred to obtain a cheque in favour of the Janta Motor Cycle Co. and with that money he purchased a motor cycle for himself. Ghosh corroborated Mategaonkar in all material particulars, starting from the incident in the dining car to the purchase of the motor cycle by Mategaonkar, This, he said, was tried as an 'experiment.' He admitted that the embezzlement was committed to his knowledge.
5. On 4th June 1960, the first information report was lodged by the Superintending Engineer, Central Circle, Electricity Board. Mategaonkar and Ghosh were both prosecuted. The trial Magistrate reached the conclusion that the accused Mategaonkar managed to obtain the order forms and the cheque, and he purchased a motor cycle out of the amount of the cheque for himself, which constituted criminal breach of trust. He found that the prosecution proved its case against Mategaonkar beyond a shred of doubt. But Ghosh was acquitted as nothing was found against him beyond his knowledge of the commission of the offence by Mategaonkar. The State did not prefer an appeal against the acquittal of Ghosh.
6. The Additional Sessions Judge laid emphasis on entrustment which is an essential ingredient of the offence of criminal breach of trust and found that the prosecution could not prove that the cheque for Rs. 3423.50 nP, was 'entrusted to the respondent in his capacity as a public servant'. He observed that it might have been that a trickery or a device had been practised but that would not amount to entrustment to Mategaonkar in his capacity as such public servant. He further said that it was necessary for making out an offence under Section 409 of the Penal Code that the entrustment should have been for a particular purpose and that it should have been shown that the property was accepted by the public servant as such, and that in his capacity as such public servant he was authorised or required to accept it. He pointed out that it was not the case of the prosecution that the cheque was to be given to the Janta Motor Cycle Co. for a particular purpose; nor was it its case that anything else was to be bought from it, but the case was rather to the contrary. Ultimately he found that 'entrustment' was not proved and set aside the conviction.
7. The main questions which we are called upon to answer in this appeal are two:
(1) Whether the respondent used the cheque for Rs. 3423,50 nP. belonging to the M. P. Electricity Board in purchasing a motor cycle for himself.
(2) If so, what offence was committed by him.
8. As we shall presently discuss, the essence of the guilt lies in the respondent's purchasing a motor cycle for himself with the cheque drawn by the Electricity Board. And, that fact is proved by overwhelming evidence.
9. Nirmal Singh Chhabra (P. W. 13) of the Janta Motor Cycle Co. says that Mategaonkar had been known to him as he used to be his classmate. In 1958, Mategaonkar represented to him that he had applied to the Electricity Board for a loan. In December 1958, Mategaonkar delivered to him a cheque drawn by the Electricity Board for Rs. 3423.50 nP. saying that the loan had been sanctioned and the money had been advanced to him by that cheque. He wanted to purchase an auto-cycle in the first instance. The witness supplied to him a Rexy auto-cycle for Rs. 1685/-. Since Mategaonkar expressed an intention to subsequently purchase a motor cycle, the balance remained in deposit with the dealer. Later on, the auto-cycle was sold to one Dr. Ojha. The price it fetched and the balance from the cheque were both adjusted towards the price of the motor cycle which Mategaonkar purchased for Rs. 3150/-.
When the witness was examined on 15th May 1961, there was no cross-examination. But, after the statement of the accused under Section 342, Criminal P. C. he was recalled at the request of the defence and then cross-examined at length on 20th October 1961. When it was suggested to him in cross-examination that Mategaonkar had paid the price of the motor cycle in cash, the witness emphatically denied. He also denied the suggestion that the cheque was brought to him by some other employee of the Electricity Board and that the cash memo was issued in the name of Mategaonkar in the latter's absence. We have carefully perused the statement of this witness. His credibility could not be shaken in cross-examination. His evidence is supported by the account books maintained by the Janta Motor Cycle Co , including cash memos and the cash book. The account books are regularly kept. Balance in hand is shown as the last entry on the close of every day's account and it is carried forward as the first entry for the following day. It is clear that this witness could not be interested in falsely implicating Mategaonkar. The suggestion made in his cross-examination that somebody else handed over the cheque to him and the cash memo was falsely issued in favour of Mategaonkar, is falsified by the fact that in his statement under Section 342, Criminal Procedure Code, Mategaonkar himself admits to have purchased first an auto-cycle and thereafter a motor cycle from the Janta Motor Cycle Co.
10. Ex. P-9 is the receipt dated 10th June 1959 under which Mategaonkar sold the Rexy auto-cycle No. M, P. J. 1656 to Dr. S. P. Ojha for Rs. 1475/- acknowledging receipt of the price in full. In his statement under Section 342, Criminal Procedure Code, Mategaonkar admits to have sold the autocycle No. M. P. J. 1658 to Dr. Ojha for Rs. 1475/- and to have passed a receipt for the price.
11. In the cash book of the Janta Motor Cycle Co., there is an entry of receipt of Rs. 3423.50 nP. on 4th December 1958 by cheque. Against this amount, on the same date, there is a debit entry for Rs, 1685/-.
This entry is supported by a cash memo of the same date in the name of Shri P. W. Mategaonkar of M. P. Electricity Board, Jabalpur, for Rs. 1685/-. Then again, in the cash book of 1959, there are entries made on 13th May 1959 adjusting the balance of the cheque, Rs. 1675/-, and the price fetched by the auto-cycle on resale, Rs. 1475/-.
12. It is worthy of note that the respondent claimed to have paid the price of the auto-cycle in cash when he purchased it from the Janta Motor Cycle Co. Likewise, he claimed to have purchased the motor cycle against cash payment. But no receipt has been produced by him showing the payment of cash on either occasion. When, on the resale of the auto-cycle through Chhabra, the respondent had to pass a receipt in favour of Dr. Ojha, he would have certainly obtained a receipt in his own favour from the Janta Motor Cycle Co., if he had paid to it the price of the motorcycle in cash.
13. For the defence, one Abdul Abraham was examined as an eye witness to the purchase of the auto-cycle by Mategaonkar from the Janta Motor Cycle Co. against a cash payment of Rs. 1725/-. He says that Mategaonkar paid the price in cash to Chhabra. A part of this price, that is, Rs. 750/- Mategaonkar had borrowed from him. Five or six months thereafter Mategaonkar again approached him for a fresh loan of Rs. 500/- which he needed for purchasing a motor cycle after having sold the auto-cycle. He advanced another loan of Rs, 500/- to Mategaonkar, He says that in his presence a motor cycle for Rs. 2700/- was purchased from Chhabra.
This witness cannot be believed even for a moment. Although he pretends to have known Mategaonkar since his boyhood, in cross-examination he admits that he and Mategaonkar were not on visiting terms with each other. He does not know what Mategaonkar's salary was. He says that he advanced the loans to Mategaonkar at the request of his (Mategaonkar's) father. His father was not in Jabalpur but had come from Bhopal two years before to make this request. His father returned Rs. 750/- to him after a month or so of the lending. Five or six months thereafter his father again approached him with the request that if Mategaonkar needed any money, the witness would advance him as a loan. He says that the second sum of Rs. 500/- was repaid to him by two instalments. According to this witness, the Proprietor of the Janta Motor Cycle Co. was Santoksingh and not Nirmalsingh. He claims to be acquainted with both of them. His statement does not inspire confidence at all. He is not supported by any documentary evidence. On the top of it, Mategaonkar did not speak of any of these loans in his statement under Section 342, Criminal Procedure Code. The story given by Abdul Abraham is an afterthought and a mere feat of imagination.
14. The extra-judicial confession (Ex. P. 10) made by the respondent on 27th May 1960 was proved by Mr. Dasgupta, Superintending Engineer (P. W. 11). This statement is attacked by the defence as one made because of inducement, threat or promise from Mr. Dasgupta. He was cross-examined at great length. The witness said that he did not make any promise, nor did extend any inducement, nor did he threaten him. He says that he recorded the statement as it was made before him. In our judgment, the evidence of Mr. Dasgupta can be safely relied upon. The statements which he recorded are all in the form of questions and answers. Twenty-three questions were put to the respondent and the answer to every question was separately recorded. Suffice to reproduce some of them:
Q. Are you involved in the embezzlement case amounting to Rs. 3423.50 nP paid to M/s Janta Motor Cycle Co. Omti, Jabalpur ?
Ans. Yes I am.
Q. Who else is involved in this ?
Ans. Shri A. K. Ghosh, L. D. C., at present Divisional Office, Jabalpur, who was in R. A. O.'s office in December 1958.
Q. When did you do this embezzlement ?
Q. Who took the cheque ?
Ans. I took the cheque from Shri Dube, L. D. C., R. A. O.
Q. You know that Janta Motor & Cycle Co. do not deal in the material entered in the bill, then why did you put their name ?
Ans. The firm does not know anything about this bill, which was also made out by us on a plain paper.
Q. Under what circumstances did you do this serious action which may bring disaster to your career ?
Ans. My father gave me Rs. 1,000. for purchase of a motor cycle. I contacted M/s. Janta Motor & Cycle Co. whose proprietor is my close friend but at that time he had no stock of any motor cycle saleable within my limit and the matter was getting delayed. In the meantime I spent out the amount given to me by my father. Myself, Shri Ghosh and Shri Diwan went to Satna area store for finding out the procedure of Store works with approval of the then S. E. When we found that lot of material are lying outside uncontrolled this idea on the procedure of embezzlement was discussed and settled between me and Shri Ghosh in the train on our way back. Shri Diwan was not in the same compartment. Myself and Shri Ghosh were in Dining Car of the train. Then we decided to purchase a motor cycle for each one of us at Board's cost. We approached the proprietor of M/s. Janta Cycle Co. for two Motor Cycles and gave him the cheque of the M. P. E. B. amounting to Rs. 3423.50 nP. and told him that we have taken loan from the Board for the purpose.
Q. Was the amount of the cost of two motor cycles exactly Rs. 3423.50 nP ?
Ans. Firstly I purchased a Motor Cycle on Rs. 1785/- leaving the balance of Rs. 1838.50 nP. with the Janta Motor & Cycle Co. for the Motor cycle of Shri Ghose. Ultimately in order to avoid any suspicion we decided to have one Motor Cycle at a higher cost between both of us for which I paid some more in addition to the balance of Rs. 1638.50 nP. This purchase was made in May 1959,
Q. Why did you not return the money after you have received ?
Ans. We were awaiting to be caught when we would have returned, but as the cheque was drawn in the name of M/s Janta Motor & Cycle Co. we were at a fix as to what action can be taken.
Q. Are you prepared to return the money with interest ?
Ans. The interest may kindly be excused. Q, What time do you need Ans. Six months.
On a perusal of the entire statement (Ex. P-10), there is not the slightest doubt that it is coherent and that it gives such details as could not be known to the officer recording it. Furthermore, if this statement had not been faithfully and voluntarily made, but had been extracted by inducement, threat or promise, the accused could have reported the matter to superior officers, particularly when the Head Office of the Electricity Board is located at Jabalpur itself.
15. Merely because Mr. Dasgupta was a person in authority and that at the end of the statement he put it to the deponent whether he was prepared to return the money with interest or that he gave a couple of days to the accused for depositing the money, do not go to show that there was any inducement to the accused for making a confession. In our opinion, the Additional Sessions Judge was in serious error when he observed that the circumstances were such that they did not altogether rule out the possibility of inducement having been given to Mategaonkar and that the extra-judicial confession (Ex, P-10) was inadmissible in evidence. According to his plain reading of ordinary human nature, the Additional Sessions Judge thinks that a subordinate suspect has very slim chance of being believed against his superior officer and has probably a justifiable apprehension that a complaint against his superior officer would minimise his chance of being saved and would enhance the possibility of his being more vindictively dealt with. This remark appears to us to be wholly unwarranted and unjustified. While making such uncalled for remarks, the Additional Sessions Judge completely ignored the particular facts of this case, that is to say, the statement of Chhabra, supported by his books of account; the admission of the accused that he did purchase from the Janta Motor Cycle Co. first an auto-cycle and then a motor cycle; and that he did not produce any receipt of any cash payment; There is no suggestion either in his judgment or in the statement of the accused that Mr. Dasgupta was himself involved in this embezzlement and that he wanted to shift his liability on to the accused. All these circumstances very strongly corroborated the extra-judicial confession.
16. The Additional Sessions Judge lays a great deal of stress on the fact that in Ex. P. 10, the accused did not admit that the cheque had been ''entrusted to him in his capacity as a public servant'. Relying on Hanumant Govind v. State of M.P. : 1953CriLJ129 , he observes that the admission was to be used either as a whole or not at all. And, since there was no admission as to entrustment, the offence under Section 409 of the Penal Code was not made out, although it could be relevant in a prosecution under Section 420 or under Section 380 of the Penal Code.
17. It was an argument before us that the extra-judicial confession of Ghosh (Ex. P-11) must be taken to have been disbelieved by the trial Judge when he was acquitted and, therefore, that of Mategaonkar must also be disbelieved. We do not think that it is so. It is not necessary to reproduce here Ghosh's extra-judicial confession (Ex. P-11), which substantially corroborated Ex. P-10. As there is no appeal against his acquittal, we would not enter into the question whether he could be convicted for conspiracy or abetment, or for some other offence. If it was a case of mere knowledge of the commission of an offence by Mategaonkar, he was, perhaps, rightly acquitted. If the Superintending Engineer was interested in fastening guilt to innocent persons, there was no reason for not implicating Ghosh equally. In any event, this argument advanced for the defence does not help the respondent in any manner. Acquittal of Ghosh does not exonerate the respondent.
18. For all these reasons, it must be held that the prosecution successfully proved beyond any shred of doubt that it was the respondent who delivered the cheque to the Janta Moter Cycle Co. in payment of the price of the auto-cycle and thereafter of the motor cycle which were purchased by him for himself. In our opinion, the conclusion of fact reached by the trial Magistrate was supported by evincive proof and the Additional Sessions Judge's interference was unreasonable and unjustified.
19. This brings us to the question what offence was committed by the respondent. Entrustment is an essential element of the offence defined in Section 405, Penal Code. The word 'entrust' is not a term of art. In common parlance it embraces all cases in which a thing is handed over by one person to another for specific purpose. Entrustment need not be express; if may be implied. We see no reason not to agree with the Additional Sessions Judge that the prosecution could not establish a case of 'entrustment.' As no case of a trust, actual or constructive, was made out, there could be no breach of trust.
20. But it is absolutely plain to us that the respondent misappropriated and converted to his own use the cheque. Therefore, there is no escape from Section 403 of the Penal Code. The essence of the offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and is misappropriated or converted to his own use by the accused. No entrustment is required for this offence to be constituted. Undoubtedly, the respondent converted the cheque to his own use when it was not his property, Even if it is not proved how he got it, he cannot escape from punishment for criminal mis-appropriation. We unhesitatingly hold him guilty of that offence.
21. It is an argument for the respondent that since the cheque was drawn in favour of the Janta Motor Cycle Co. and the cheque was actually delivered to that company, no offence was committed. The fallacy in this argument is two-fold. The accused knew that no payment was due to the company by the Electricity Board. Secondly, he used the cheque in payment of the price of the auto-cycle and the motor cycle which he admittedly purchased for himself. The cheque could not be said to have been issued in contemplation of the respondent purchasing a motor cycle for himself.
22. At this juncture, we must turn to the respondent's contention as to absence of a charge under Section 403, Penal Code. Indeed no specific charge had been framed for the offence for which we are finding the respondent guilty. But the omission to frame such a charge has no substantial consequence. By virtue of Sections 236, 237 and 238 of the Criminal P. C., conviction can be sustained even without such a specific charge because the one under Section 409, Penal Code, covered the accusation of misappropriation or conversion. There could be a doubt whether the offence committed was punishable under Section 409 or 403, so that alternative charges could be framed. What is more, the elements of the offence under Section 403 being there in the offence under Section 409-the latter requires some more ingredients to be established-conviction is permissible under Section 403 when the charge was of the offence under Section 409. Then there is the general Section 535, Criminal P. C., to cure the irregularity, if any. The position of the law as to omission to frame a charge or defect in a charge is settled in William Slaney v. State of M.P. (S) : 1956CriLJ291 . We do not see any prejudice being caused to the respondent for want of a specific charge under 3. 403, Penal Code, because he has had a full opportunity of meeting the facts constituting the elements of the offence of which we are finding him guilty.
23. In the result, the appeal is allowed. The judgment and order of the Additional Sessions Judge are set aside. The respondent is held guilty of the offence under Section 403, Penal Code, and sentenced to one year's rigorous imprisonment. The motor cycle seized from the accused shall be delivered to the M.P. Electricity Board.