1. The accused respondent, -- a Nazir of Phulbani Collectorate, -- was charged that he between May 1, and 7, 1957 as a servant in the employment of Government and in such capacity entrusted with cash of Rs. 11,147.46 nP. committed criminal breach of trust in respect of the same. He was convicted by the learned Munsif Magistrate but in appeal he was acquitted by the learned trial Judge.
2. The accused was Nazir of Phulbani District Collectorate from April 25, 1953 to May 15, 1957 on which date he was suspended. In March 1957 there was an order for his transfer to Kalahandi and his successor was to take charge from him as Nazir. On May 1, 1957 the Officer-in-charge of Nizarat in the normal course did the monthly verification of cash and found the same to be correct. On May 3, 1957 the accused was relieved but he could not hand over charge as he was unable to pay or account for the cash in hand. On May 4, 1957 the accused's successor reported the matter to the Office Superintendent. The accused wanted time till May 5, 1957. Of course May 5, 1957 was a Sunday. On May 6, Monday, 1957 the accused again asked for time. The Additional District Magistrate rejected his prayer for time and directed the accused to handover charge on May 7, 1957.
The accused however did not hand over charge and it was found that there was a total shortage of a sum of Rs. 11,147-46nP. On May 14, 1957, the Additional District Magistrate filed a First Information Report against the accused. The accused was charged with the offence of criminal breach of trust and after investigation he was in due course committed and sent up for trial.
3. The defence was this: There was no physical verification of cash-balance with book-balance by the officer in charge of the Nizarat on May 1. 1957. The authorities concerned were aware of the difference between book-balance and cash-balance which was already there even prior to May 1, 1957. The accused as Nazir was dealing with various types of cash under different heads including the cash of Election Department, and he was receiving and disbursing them according to the directions of his superiors. In February, 1957 the General Election took place and during the election period there was heavy rush of expenditure and the accused had to disburse cash to the tune of Rs. 30,000/r. The accused's point is this that big sums were diverted from Nizarat cash for the purpose of meeting heavy expenditure for the Election Department. Moreover, according to the prevailing practice the nazir was to make arrangement for the camps of big officers visiting Phulbani and the money required for the said arrangements was to be paid from the Nizarat cash and subsequently recouped after the money was paid by the visiting officers.
The Nazir was also making advance payment from Nizarat cash for purchase of articles for various departments and such amounts were supposed to be subsequently recouped. So when the Nazir was required to make over charge on May 7, 1957 he asked for time to adjust the accounts and demanded audit of the Election Department accounts but he was not given time and the receipts and registers were taken away from him. Indeed, although he was asked to adjust the accounts within a limited time yet he was not allowed access to the receipts and registers. The defence case is that there was no misappropriation as alleged, and that on proper adjustment of accounts no difference would be found between the cash balance and the hook balance.
4. The question now is: Is the accused guilty of alleged criminal breach of trust on the facts and in the circumstances hereinbefore stated? The relevant provisions of the Indian Penal Code are these:
'405. Criminal breach of trust.-- 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 offence of 'breach of trust.'
409. Criminal breach of trust by public servant or by banker, merchant or agent.-- 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 the 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 word 'dishonestly' has been defined in Section 24 which is as follows:--
'24. 'Dishonestly' -- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'.'
4-a. On the defence taken by the accused, the prosecution stand is that though the burden of proving the offence against the accused beyond reasonable doubt is on the prosecution, nevertheless, as the particular facts pleaded in defence are especially within the knowledge of the accused, the burden of proving those facts will lie on him. The simple distinction is this: To prove an offence as a whole, the burden is on the prosecution. To prove a particular fact which is within the special knowledge of the accused, the burden is on the accused. In support of its stand on burden as aforesaid, the prosecution relies on Section 106 of the Evidence Act which reads as follows:
'106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
The essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not the failure to account for the amount proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the property of his master. In the case of a public servant charged with misappropriation of monies, the element of offence of criminal breach of trust will be established if the prosecution proves entrustment of the monies which he was under a duty to account and had not done so. If the failure to account was due to circumstances as pleaded by the accused in defence, then those facts being within the accused's knowledge, it is for the accused to explain them. It is not the law that the prosecution is to eliminate all possible defences or circumstances which may exonerate the accused. If the facts and circumstances are within the knowledge of the accused then he has to prove them. This, however, does not mean that the burden is cast upon the accused person of proving that no crime has been committed. The prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 Evidence Act to throw the onus on the accused to prove his innocence.
The onus of proving the guilt of the accused still rests on the prosecution as in all other criminal charges. Section 106 of the Evidence Act does not affect the prosecution's initial onus of proving the guilt of the accused. The onus rests on the prosecution and is not shifted on the accused by reason of Section 106. The law does not throw the burden on the accused. It is not the law that the burden is cast upon the accused person of proving that no crime has been committed. There was some misconception on the aspect of the law. The Privy Council noticed it and clarified it Lord Roche in Stephen Seneviratne v. The King, AIR 1936 PC 289 made adverse comments on a passage in the Charge to the Jury by the trial Judge in that particplar case. His Lordship observed this:
'It was a direction as to facts generally, and therefore it was particularly unfortunate that the elevant passage in the Charge should have been expressed thus: 'He has got to explain. In the absence of explanation, the only inference is that the is guilty' Its tendency would be to lead the jury to suppose that if anything was unexplained which they thought the appellant (accused) could explain, they not only might but must find him guilty.'
In a case like the present, the area of the unexplained appears to be somewhat extensive and how much the accused himself could explain depended on many factors. The Courts have been repeatedly made alert that such a direction to the jury, -- that the law says that in such a case the 'burden of proving that no criminal offence was committed is upon the accused, -- does not correctly state the law.
5. Thus Section 106 of the Evidence Act is not intended to relieve the prosecution of its initial burden of proof which is fundamental in criminal jurisprudence. Section 106 is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused and which be could prove without difficulty or inconvenience. If knowledge of certain facts is as much available to the prosecution on exercise of due diligence as to the accused, the facts cannot be said to be especially within the knowledge of the accused. Section 106 would not absolve the prosecution from the duty of proving that a crime was committed even though it is established that the accused had special knowledge on the point. If any explanation that the accused chooses to give is not proved beyond doubt, he cannot claim to be innocent; but even so, if his explanation shows any reasonable doubt on the prosecution story he would be entitled to an acquittal not because he proves the facts and circumstances referred to but because the prosecution has failed to establish his guilt beyond reasonable doubt. That is to say, if the Court thinks that the explanation given may reasonably be true, although the court is not convinced that it is true, the accused is entitled to be acquitted, inasmuch as the prosecution would then have failed to discharge the burden imposed on it by the law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is not changed in these cases: it always remains on the prosecution. That is the law as pronounced by Lord Reading in Rex v. Schama, (1915) 84 LJKB 396 not purporting to give forth any new statement of the law, but re-stating it for assistance to those who have to try these cases.
6. In the present case, it is clear from the audit report that on diverse dates various sums were given by the Nazir for meeting expenditure of the election department, from out of cash in hand. It is the evidence of the then Head Clerk of the District Election Office that during the General Elections in 1957 the accused was maintaining election department accounts and also keeping the cash of the Depratment; the accused was keeping that cash in the Nizarat chest; the accused was disbursing that amount and keeping the ac-counts; the accused was dealing with the Election Department cash under the orders of the District Collector and the Additional District Magistrate; there was never any audit of the accounts of the election department during the witness's stay there 'till October 1957. It is also his evidence that during the election when money transactions increased the money matters were entrusted to the accused under orders of the Collector; there was no written order of the Collector and it was all done orally; that no receipt used to be taken from the accused but the rash used to be entered in the election cash register. All these arrangements are said to have been made under the oral authority of the District Collector.
7. The audit report, which was tendered in course of hearing of this appeal as additional evidence, shows that between February 13, 1957 and March 30, 1957 various amounts totalling Rs. 20,889/9/0 were given by the Nazir from time to time for expenses in the General Elections early in 1957. The material portion of the audit report is set out as follows:
'(i). Custody of other cash with the Nazir.
xx xx xx'It is however seen that the amount drawn by the Election Branch of the Collectorate in the following bills (amounting to more than Rs. 30,000/-) were kept with the Nazir for safe custody.
xx xx xxIt is reported that the amount actually required for disbursement was obtained from the Nazir from time to time, the balance being kept with him. In respect of item VIII disbursement of the amounts started from 4-4-1957 as verified from the Acquittance Roll of Election Branch. The Nazir has not entered the amounts received, in his cash book or in any register nor has given any acknowledgment for receipt of the money. This safe custody arrangement is stated to have been adopted as there was no cash chest of the Election Branch.
It would thus appear that the Nazir's cash chest contained cash balance in respect of his cash-book and other cash given to him for sate custody. The Nazir should have taken those amounts into his cash book. The cash verification certificate recorded by the Officer in charge during the above period to the effect that cash in hand with the Nazir corresponds with the book balance does not apparently represent a true state of affairs as the Nazir had with him much more cash than the closing balance in the cash book. It is not unlikely that the Nazir would have made up any shortage in 'he Nizarat cash with the feash privately kept with him in pood faith, and without any entry in his cash book.'
So, it is that unless the election accounts were checked and finalised, it was not possible to know the exact position. It is not unlikely that the Nizarat cash money was diverted for meeting the urgent calls of the authorities for election expenditure. It is clear from evidence that physically the election money was getting intermingled or mixed up with the Nizarat cash. Indeed, thousands of rupees of the election Department were being given to the accused for safe custody and kept in a common pool. It is also in evidence that the accused, on verbal orders of the authorities, was diverting Nizarat cash for meeting election expenditure according to the exigencies of the situation. The Additional District Magistrate, however deposed that it is not a fact that during election time, election money was also being kept by the Nazir or in the same iron chest where Nszir used to keep his cash. This evidence of the Additional District Magistrate is however belied by the audit report itself as also by the evidence of the then Head Clerk of the District Election Office who said that the Nazir was maintaining election accounts and keeping the cash of the election department.
8. The point now is whether the explanation given by the accused may be reasonably true. I am satisfied that in view of the mixture of all the monies in the hands of the accused for safe custody, until the election accounts were finalised it was not possible to fix liability. The cash verification certificate recorded by the officer in charge of the Nizarat D/- May 1, 57, -- purporting to certify that he was satisfied that the cash balance in band of the Nazir on the date of verification corresponds with the balance as per cash book, -- is not helpful because it is possible that the cash in band which was physically shown by the Nazir to the checking officer were monies of the election Department. All the monies having been mixed up, such routine verification by the checking officer on the 1st of every month could not show the teal position about the Nizarat cash until all the accounts were audited and finalised.
It can be reasonably inferred that on these days when the officer checked on the 1st of every month from month to month, monies from other sources were physically shown to the Checking Officer, and the officer certified accordingly. Therefore, these certificates are by themselves innocuous and not decisive. It was open to the prosecution to falsify the accused's explanation in defence by finalising the election accounts and establishing the alleged shortage in the Nizarat cash, if any.
9. I am of opinion that the explanation given by the accused may be reasonably true. Therefore even if the court is not absolutely convinced that the accused's explanation is true, the accused is still entitled to be acquitted as the prosecution failed to discharge the burden imposed on it by the law, of proving beyond reasonable doubt the guilt of the accused. The order of acquittal passed by the learned trial Judge is upheld. The Government appeal is, accordingly, dismissed.
10. I agree.
11. The audit report extracts of which have been quoted by my learned brother is itself sufficient to show that the explanation given by the accused to account for the money in his possession may reasonably be true and that the evidence of the Additional District Magistrate (P. W. 8) to the effect that the election money was never kept with the Nazir, is not true.
12. Apart from the audit report the evidence of the Election Head Clerk (D. W. 1) also supports the accused's explanation. There is thus a reasonable doubt about the dishonest intention of the accused and the benefit of that doubt must go to him.