R.L. Narasimham, C.J.
1. This is a petition for quashing a criminal case pending against the petitioner in the Court of the Sub-divisional Magistrate, Sadar, Baripada.
2. The petitioner is a member of the Orissa Administrative Service and was working as Treasury Officer at Baripada in January 1957. On 4-1-1957, a remittance of Rupees 1,10,000/- in a sealed box was received at Baripada District Treasury from Rairangpur Sub-Treasury. The sum was counted by the Treasurer on 5-1-1957, and then kept inside the strong room of the treasury under double lock as a valuable article. The petitioner as Treasury Officer however did not supervise the counting of the cash inside the box, nor did he take steps to transfer the money to the currency chest inside the strong room on that day.
For the next few days, the officials of the Treasury were very busy counting other cash in the currency chest for the purpose of transfer to the State Bank of India. The petitioner therefore found time to verify the cash box only on 16-1-1957. On verification he noticed that the cash was short by Rs. 81,400/-. The lock of the box was also found broken. He then reported the matter to the Collector at whose instance a regular Police case was started and investigation commenced.
The police submitted a preliminary charge-sheet on 16-2-1957 against the Treasurer Shambhunath Mohanta and two potdars of the Treasury named Kulamoni Mohanty and Naba-kishore Mohanty. The petitioner was actually cited as a witness in the preliminary charge-sheet. Subsequently when the final charge-sheet was submitted on 17-4-1957 he was also included as one of the accused persons.
3. It will be useful to refer to some of the rules in the Orissa Treasury Code, Volume I, dealing with remittances to district treasuries from other places. Chapter IX of the said Code deals with the subject in great detail, but for the present purpose it will suffice if reference is made to Rules 538, 540, 544, 547, 548 and 549. Rule 538 says that the potdar or clerk accompanying the remittance, should be furnished by the remitting Treasury Officer with a certificate in Form O. T. C. 50 (known as Discharge Certificate) with columns 1 to 8 of the same filled in.
It is the duty of the Receiving Officer to fill in columns 9 to 12 and after taking charge of the remittance release the potdar or clerk concerned. The Receiving Officer will not discharge the potdar of the remitting Treasury until and unless the remittance has been examined in his office and taken charge of, In fact, column 10 of the certificate requires the number of days employed in the examination to be noted. Rule 540 says that, immediatelyon the arrival of a remittance credit for the invoiced amount shall be given in the Cash Book or other Register of the receiving treasury, and then the remittance shall be carefully examined.
If it consists of coins they should be weighed and if consists of currency notes they should be counted. Rule 544 casts on the Treasurer of the Receiving treasury the primary responsibility for detailed examination of the remittance, which should be made in the presence of the potdar of the remitting treasury so that, if any amount is found short, the responsibility may be fixed. Rule 547 says that the currency notes composing the remittance should be counted in detail, so as to ensure not only that they are genuine but also that each bundle of notes contains the alleged number.
Generally, whenever currency notes are kept in a bundle there should be a slip attached to that bundle in Form O. T. C. 8 showing the number of notes, the person who counted them, and the person who examined them. At the time of examination in the receiving treasury these slips of the remitting treasury should be taken out and destroyed in the presence of the Treasury Officer, and fresh slips prepared by the receiving treasury. Rule 548 casts on the Treasury Officer the primary duty of seeing that the slips of the remitting treasury are destroyed. Rule 549 which is a very important rule, may be quoted in full:
''549. The Treasury Officer shall supervise the examination of the remittance generally and see that adequate safeguards have been taken by the Treasurer to avoid, during examination, all mal-practices whether on the part of the accompanying potdars or the examining potdars. He should put away the examined notes and coin under the double locks in the treasury or the currency chest, as the case may be. On completion of the detailed examination he should send a formal report to the remitting officer showing the result of the examination.'
The language of this rule is slightly different from the language of Rule 544. The detailed examination of the remittance is required to be done under the direct supervision of the Treasurer whereas the responsibility of the Treasury Officer is limited to general supervision of the examination of the remittance by the treasurer and other subordinate staff.
He is also required to see that adequate safeguards are taken by the Treasurer to avoid during examination all mal-practices. He is further required to put away the examined notes and coin under the double lock in the treasury or in the currency chest as the case may be.
4. The investigation has been completed and in the charge-sheet the petitioner's criminal liability is stated as follows:
'The accused Treasury Officer being entrusted with such a large amount wilfully suffered the same to be misappropriated by accused Shambhunath, abetted by Kulamoni and Naba-kishore Mohanty.'
The police charge-sheet further shows that the defalcation took place at the time of the examination of the remittance by the Treasurer on the 5th January. The statements of witnesses and other materials gathered by the police point to the fact that at the time of such examination the Treasurer, with the help of his potdars and other persons, took away a large number of currency notes and then locked up the box and took it to the Treasury' Officer who, without caring to get the box opened to ascertain its contents, allowed it to be kept inside the strong room and also signed the discharge certificate, of the potdar of Rairangpur Sub-treasury.
If does not appear that after the box was kept in the strong room in the evening of 5-1-1957 any removal of cash from the box took place. Hence, it is not necessary for the purpose of this revision to examine whether, on any subsequent dates, the Treasurer and the subordinate staff managed to enter the strong room opened the box, and removed some more currency notes without the knowledge of the Treasury Officer.
5. As the preliminary and final charge-sheets have both been submitted there is no question of any further material being collected against any of the accused persons. The crucial question for consideration now is whether, on the materials collected so far, there is a prima facie case against the petitioner so as to place him on trial. Under Sub-section (2), of Section 251A of the Criminal Procedure Code it is open to the Subdivisional Magistrate to discharge the accused if, after going through the Police papers and hearing the accused, he is satisfied that the charge is groundless.
A prayer was made on behalf of the petitioner for such discharge but the learned trying magistrate rejected the prayer by his orders dated 10-6-1957 and 3-7-1957 and directed that his trial should proceed. The present revision petition was filed mainly against this order of the Subdivisional Magistrate.
6. The question now for consideration is whether, on the materials collected by the Police, there is a prima facie case for framing a charge against the petitioner and proceeding with the trial, or else whether on these materials it can be reasonably held that the charge against him is groundless and that he is entitled to a discharge. It is conceded by the learned Standing Counsel that there is no direct evidence of the Treasury Officer's complicity in the removal of the currency notes from the Rairangpur remittance, either by the Treasurer or by his other subordinate staff of Baripada treasury.
None has spoken about any previous conspiracy or understanding between the two, or else th'at the petitioner's financial dealings either before or after the incident were as suspicious as to justify the inference that he must have had a share in the money taken away from the remittance. There is also no evidence that he knew that the Treasurer and the subordinate staff would embezzle the moneyand with that knowledge, he deliberately remained indifferent and thereby facilitated the commission of the offence by them. The Standing Counsel, however, urged that the petitioner, as Treasury Officer, grossly violated the Rules of the Treasury Code and thereby facilitated the commission of the offence by the Treasurer and the subordinate staff. According to him, the following are instances of contravention of rules by the petitioner:
(i) As soon as the remittance was received the Treasury Officer should have given credit for the invoiced amount in the Cash Book (Rule 540) ;
(ii) He should have exercised effective general supervision at the time of the examination of the remittance by the Treasurer and his subordinate staff so as to prevent removal of the currency notes by them during such examination (Rule 549);
(iii) He should have insisted on the Treasurer producing before him the slips of the sub-treasury at Rairangpur in Form O. T. C. No. 8 for destruction and replacement by slips of his own treasury as required by Rule 548;
(iv) When the Treasurer reported that the examination of the remittance was complete he should have insisted on opening the box and satisfying himself even by a cursory examination that the box really contained currency notes to the extent of Rs. 1,10,000/-. Even though a detailed examination is not necessary, a mere cursory examination of the contents of the box would have satisfied him that the balance of cash in the box was very little. He would then have surely detected the removal of such a large sum as Rs. 81,400/-.
(v) He should not have signed the discharge certificate in Form O. T. C. 50 without satisfying himself that the money was, in fact, received by him.
(vi) He should not have allowed the box to be kept as a valuable article inside the strong room of the Treasury on the 5th evening. He should have verified the contents immediately and put the cash inside the currency chest.
7. The petitioner who partly argued the case himself urged that in actual practice Rule 548 of the Orissa Treasury Code, Vol. I was never complied with in Baripada treasury and that too much importance should not be attached to his failure to destroy the slips in Form O. T. C. No. 8. He also stated that the room where the Treasury Officer sits, in Baripada Treasury, is different from the room where the Treasurer sits and counts remittances and that it is impossible for the Treasury Officer to exercise even general supervision over the counting of the remittances by the Treasurer.
Rule 544 casts on the Treasurer the primary duty of detailed examination of the remittance and the Treasury Officer had no reason to distrust him. He further stated that notwithstanding the provisions of Rule 540 the entry of the remittance in the Cash Book could not be made until the receipt of the account statement from Rairangpur sub-treasury, andthat as there was a delay of 3 or 4 days in the receipt of that statement the remittance was not noted in the Cash Book immediately on its arrival.
As regards his signing the discharge certificate in Form O. T. C. No. 50 he stated that by such signature he does not take responsibility for the receipt of the remittance, but only relieves the 'potdar of the remitting treasury from his duty of remaining in attendance at Baripada. It was only when he subsequently verified the cash in the box on 16-1-1957, and signed another document that his responsibility for the same arose and until 'then the sole responsibility for it rested' with the Treasurer.
8. The question as to how far the petitioner has contravened the rules of the Orissa Treasury Code and whether he is liable for departmental action for such contravention must be left open in this revision petition. I do not wish to embarrass either the petitioner or the Government by making any observations on that subject. The limited question for consideration here is even on the assumption that the petitioner failed to comply strictly with the rules mentioned above, can it be reasonably held that he 'wilfully suffered' the treasurer to commit the offence of criminal breach of trust?
9. The word 'Wilfully' has been construed in several English decisions and also in a recent decision of the Supreme Court.
Thus, in Queen-v.-Senior, (1899) 1 Q. B 283 (A) Lord Russell C. J. stated (at p. 290) as follows:
' 'Wilfully' means that the act is done deliberately and intentionally, but not by accident or inadvertence, but so that the mind of the person who does the act goes with it'
In an earlier decision, Lewis v. The Great Western Rly. (1877-78) 3 Q. B. D. 195 (B) the expression for construction was 'wilful misconduct' on the part of a carrier which misconduct was said to have resulted in damage to the goods carried. Bramwell, L. J. said 'Wilful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence: the misconduct not the conduct, must be wilful.'
Brett L. J. conveyed the same idea in the following words (at p. 210) :
'In a contract where the terms 'Wilful misconduct' is put as something different from and excluding negligence of every kind, it seems to me that it must mean the doing of something or the omitting to do something which it is wrong to do or to omit, where the person who is guilty of the act or the omission, knows that the act which he is doing or that which he omits to do, is a wrong thing to do or to omit; and it involves the knowledge of the 'person that the thing which he is doing is wrong......Ifit is brought to his notice that what he is doing or omitting to do may seriously endanger the things that are to be sent and he wilfully persists in doing that against which he is warned, careless whether he may be doing damage or not,then, I think, he is doing a wrong thing and that that is misconduct and that, as he does it intentionally, he is guilty of wilful misconduct'.
Again in Somerset v. Hart, (1884) 12 Q. B. D. 360 (C), the question for decision was whether the owner of certain premises where gaming took place has 'suffered' such gaming to be carried on in his premises. There was no evidence that the owner had any actual knowledge of the gaming, or else that he was informed about it, or else that he was ever in the room where the gaming took place. Lord Coleridge C. J. observed:
'How can a man suffer a thing to be done when he does not know of it?' He also stated that where there is no knowledge on the part of the owner of what took place in his premises and there is no evidence either of his connivance or of the fact that he might have known but purposely abstained from knowing, he cannot be held to have suffered such gaining to be done.
In a recent, decision of the Supreme Court, Om Prakash v. State of U. P. AIR 1957 SC 458 (D), the distinction between 'allowing a person to do a thing' and 'Wilfully suffering a person to do a thing' was clearly brought out, with special reference to Section 405, Indian Penal Code and S. 5(1)(c) of the Prevention of Corruption Act. Their Lordships observed : 'There is vast difference between 'Wilfully suffering another' and 'allowing a person to do a particular thing' and in our view the word 'allows' is much wider in its import. 'Wilfully' presupposes a conscious action while even by negligence one can allow another to do a thing.'
10. It seems thus clear from the aforesaid authorities that mere acts of negligence on the part of the Treasury Officer in complying with the relevant rules of the Treasury Code (assuming that there was negligence) would not suffice to hold that he 'wilfully suffered' the embezzlement of the money by the Treasurer. There must be further evidence to show that he intentionally omitted to comply with the rules, or else that having been previously warned that such non-compliance would enable the Treasurer to embezzle the money he deliberately connived at such embezzlement by shutting his eyes to what was going on.
It is true that his allowing the Treasurer to count the remittance in another room which was completely invisible from the room in which he was sitting and his omission to get the box opened and satisfy himself that 'it really contained currency notes before allowing it to be kept inside the strong room, were mainly responsible for the commission of the offence. But these acts appear to have been done by him in the ordinary course without any previous knowledge that embezzlement was likely to take place. If, as stated by him, many of the Rules of the Treasury Code were seldom observed in practice in that Treasury and he merely allowed things to go on as before, I do not think it can be held that he 'wilfully suffered' the commission of the offence by other members of the treasury staff.
It would be unfair, to hold, on the material collected so far by the police that he had the necessary intention or that, knowing what was likely to take place, he deliberately connived at the commission of the offence by his acts of negligence. Under these circumstances I do not think that his trial should continue.
11. The criminal proceeding pending against the petitioner is therefore quashed.
The proceedings against the other accused persons may now continue.