S. Barman, J.
1. Brahmananda Mohanty, an insurance agent of L. I. C. at Bhadrak was convicted on a charge under Section 409, Indian Penal Code for alleged criminal breach of trust in respect of Rs. 506-90 nP being part of the first premium collected from certain proposer for insurance and sentenced to simple imprisonment for one year and also to pay a fine of Rs. 600 in default to undergo simple imprisonment for a term of three months for the offence. He was also convicted under Section 471 Indian Penal Code for having in that connection used as genuine a forged document in the circumstances hereinafter stated and sentenced to simple imprisonment for three months, all the sentences to run concurrently. Along with the accused appellant Brahmananda Mohanty, one Mahendra Narayan Das working as a Field Officer under the L. I. C, at Bhadrak was also charged, committed and sent up for trial before the learned Additional Sessions Judge who however acquitted him.
2. The accused appellant Brahmananda Mohanty was an insurance agent of the L. I. C. at Bhadrak (hereinafter referred to as the accused insurance agent). The other accused Mahendra Narayan Das was a Field Officer under whom the accused appellant Brahmananda Mohantv was working as an insurance agent. It is said that the accused Mahendra was a brother-in-law of the accused appellant Brahmananda.
3. On February, 4, 1962 in the usual course of his duty as insurance agent the accused appellant received Rs. 546-90 nP from one Harekrishna Misra towards annual premium of a new life insurance policy on his life for twenty years for Rs. 10,000 with profit as will appear from a Kucha receipt Ext. 3 given by the accused insurance agent. On 27-2-1962 P. W. 1 Srikanta Misra, son of the said Harekrishna Misra. wrote a letter Ext. 4 to the accused insurance agent requesting him to send the pucca receipt. Evidently no pucca receipt was ultimately given by the accused insurance agent.
4. In the meantime on April 2, 1962 the Branch Manager of the L. I. C. wrote a Letter Ext. 29 to the proposer for insurance Harekrishna Misra intimating that a sum of Rs. 40 was received from him in deposit in payment of the premium due under a new proposal on his life and that the amount was being kept in deposit involving no risk to the Corporation, Evidently it was from this letter it came to light that the entire amount of Rs. 546-90 nP paid by the proposer was not received by the L. I. C.; they only received Rs. 40 as appears from the letter.
5. After receiving the said letter the proposer's son P. W. 1 Srikanta Misra consulted a lawyer and sent a notice by registered post to the accused insurance agent requesting refund of the money. The accused insurance agent appears to have received the notice on April 9, 1962 as appears from A. D. Form Ext. 6. The receipt of the pleader's notice was admitted by the accused insurance agent; no reply was given by him to the said pleader's notice.
6. On Mav 6, 1962 the L. I. C. made a query from the accused insurance agent regarding non-deposit of the balance premium, namely Rs. 506-90 nP lo which also no reply was given. On May 24, 1962 the L. I. C. again wrote to the accused insurance agent a letter Ext. 8/(1) regretting his not caring to reply to the earlier letter dated May 6. 1962; in the said letter of Mav 24. 1962 it was pointed out that the proposer's son P. W. 1 Srikanta Misra lodged a complaint that the accused insurance agent had received a sum of Rs. 546-90 nP out of which the L. I. C. had received Rs. 40 only against the proposal; that he (accused insurance agent) had not yet deposited the balance sum of Rs. 506-90 nP in the L. I. C. account. In the said letter the L. I. C. warned the accused insurance agent that the matter would be viewed very seriously. Yet the accused insurance agent did not reply to the said letter.
7. The evidence of the Superintendent, Balasore Branch of the L. I. C. P. W. 12 is that the accused insurance agent went to his office early in June and admitted below him that he received the entire premium amount and made a verbal complaint to him (P. W. 12) that he handed over the entire money to the accused Field Officer Mahendra Narayan Das who did not make the deposit of the entire amount. This fact was recorded in a letter dated June, 11, 1962 Ext. 9 of the Branch Manager of Balasore Office. A copy of the said letter was also sent to the accused insurance agent and he was requested to note that his reply to the L. I. C letters dated May 6, 1962 and May 24, 1962 was still awaited. A copy of the said letter was also sent to the accused Field Officer Mahendra Narayan Das requesting him to note that it was reported by the accused insurance agent that the amount of Rs. 506-90 nP towards the balance of the first premium of the proposal in question was handed over to him by the accused insurance agent and that if that was so he (Field Officer Mahendra Narayan Das) was requested to let the L. I. C. know the fate of the amount for their further action. A copy of the said letter (Ext. 9) was also sent to the proposer with a request to send by registered post the original receipt for Rs. 546-90 nP granted by the accused insurance agent to him for further action.
8. On July 21, 1962 the L. I. C. received from the accused Field Officer Mahendra a letter Ext. 31 slating that, besides the sum of Rs. 40 deposited against the proposal, the accused Insurance Agent did not hand over a pie to him though out of fear the accused Insurance Agent slated to the Branch Office (when he was threatened to be handed over to the police) that he had handed over the sum of Rs. 506-90 nP to him (Field Officer). The Field Officer enclosed with the said letter a true copy of the accused insurance agent's written statement dated June 6. 1962 Ext. 31/1 purporting to bear testimony to it. The Field Officer in his letter Ext. 31 also staled that in the presence of both the parties it was decided that in his presence the accused insurance agent would clear up all the dues of the proposer for insurance who on receipt of the same would make over the insurance agent's receipt either to him (Field Officer) or send it to the Balasore Branch of L. I. C by registered post but on the date fixed for the purpose the proposer for the insurance did not turn up.
9. It appears from the true copy of the accused appellant's letter described by the Field Officer as written statement dated June 6, 1962 Ext. 31/1 addressed to the Branch Manager of L. I. C., Balasore. which was enclosed with the Field Officer's letter received by the L. I. C. Ext. 31 as aforesaid, that the accused insurance agent received the entire sum of RS. 546-90 nP towards full premium of insurance policy from the proposer; the accused insurance agent deposited Rs. 40 along with the proposal and kept the remaining sum of Rs. 506-90 nP with him (accused insurance agent) at the direction of the proposer till the proposal was accepted. In the said letter the accused insurance agent also stated that by that time the proposer served a pleader's notice on him to get back the said amount under the apprehension of his proposal not being accepted by the L. I. C., 30 the accused insurance agent did not think it proper to deposit the balance amount in the office as his lawyer advised him to wait and accordingly the accused insurance agent kept the money with him to deposit in court.
The accused insurance agent further stated that when at Balasore he was threatened by the Branch Manager of L. I. C. about that money, he informed the Branch Manager out of fear that he had deposited the amount with the Field Officer and got a receipt therefor; and further that on the very date he wrote that letter (Ext. 31/1) the Field Officer called for him and having been vexed with the accused insurance agent directed him to pay the money at once. Accordingly the accused insurance agent submitted the report to the Branch Manager of L. I. C. staling the facts.
10. Apparently the statement of the accused insurance agent in Ext. 31/1 is a false explanation of his dealing with the money. This is confirmed by his subsequent conduct in his vain attempt to account for the money as hereinafter discussed.
11. On September 3, 1962 the accused insurance agent wrote a letter to the L. I. C. Ext. 38 informing that out of the sum of Rs. 546-90 nP collected from the proposer on the date of recording of the proposal, a sum of Rs. 40 was remitted to the Branch Manager at the suggestion of the party who was not confident about the acceptance of the proposal in consideration of his age; subsequently when the proposer came to know that the palm leaf horoscope produced by him was not going to be accepted as satisfactory proof, he not only asked him verbally as well as in writing but also by registered pleader's notice to refund the entire amount to him immediately. In the said letter the accused insurance agent also stated that these difficulties compelled him to consult a lawyer who advised him not to make payment to any body unless and until the receipt concerned was returned to him.
12. In continuation of his letter dated September 3, 1962 Ext. 38 the accused insurance agent again in a letter signed by him Ext. 36 addressed to the L. I. C., Cullack. stated that out of the whole sum of Rupees 546-90 nP collected from the proposer, the un-deposited amount of Rs. 506-90 nP which was retained until the acceptance of the proposal at the request of the parly had been kept with him.
He also staled that after the despatch of his report dated September 3. 1962 Ext. 38 he came to know from his lawyer that at the request of the proposer the undeposited balance amount of Rs. 506 90 nP had already been made over to the proposer and that receipt bearing his full signature had been obtained from him; the accused insurance agent also stated in his letter that as he was not aware of this fact until September 3, 1962 he could not make any mention of the same in his earlier report Ext. 38 for which he begged to be excused. The accused insurance agent ended the letter by stating to the effect that as the balance, which was not deposited at the request of the parties concerned, had already been refunded to them, the matter may be dropped.
13. On September 15, 1962 the accused insurance agent again wrote a letter Ext. 39 to the L. I. C. in continuation of his last report on the subject and enclosed with the said letter a receipt in original Ext. 15 dated 15-8-1962 which he stated to have obtained from the proposer. The prosecution case is that this receipt Ext. 15 is forged document. The English translation of the document is this:
Shri Harekrushna Misra of
Belasaunlia. Pragana Anjuda. P. S.
Basudebpur. Dist Balasore.
That I deposited Rs. 546-90 (Rupees five hundred forty six and p.s. ninety) only towards my life insurance with the agent. Sri Babu Brahmananda Mohalla in the month of last February. Deducting Rs. 40 (Rupees forty) which has been deposited by him in the Branch Office out of the above said amount of Rupees 546 90 nP the rest amount of Rs. 506-90 nP (Rupees five hundred six and p.s. ninety) was deposited with him at my direction and request till my proposal of Life Insurance he accepted That today at Bhadrak in the presence of his lawyer and at the instruction of my lawyer I received the said amount of Rs. 506 90 nP (Rupees five hundred and six and p.s. ninety) from him and granted this receipt thereto that it will come to us in time of need.
S/d. Sri Harekrishna
Misra at the margin
on two revenue stamps.
14. In support of the prosecution case, the proposer himself Harekrishna Misra P. W. 4 stated in evidence that his son brought Rupees 546-90 nP and paid it to the accused insurance agent Brahmananda who then gave a receipt Ext. 3 in his presence The witness further said that he never got refund of this amount of Rs. 546-90 nP or Rs. 506-90 nP at any time thereafter; he never granted any receipt for such refund: he did not grant the receipt Ext. 15; the signature on it purporting to be his was not his; he never got refund of Rupees 506.90 nP through his pleader. In cross-examination he also said that he could not say in whose hand and signature the document Ext. 15 was: the signature in Ext. 15 was not his.
15. The document Ext. 15 alleged to be a receipt given by the proposer was enclosed by the accused insurance agent himself with his letter addressed to the L. I. C. Ext 39 dated September 15, 1962 This was proved by P W. 13 Assistant Branch Manager. L. I. C., he slated that the letter Ext 39 signed by the accused insurance agent B.N. Mohanti was received at the Branch Office and that the receipt Ext. 15 was enclosed with the said letter. The fact that the accused insurance agent himself sent the receipt Ext, 15 is further confirmed by his own letter dated November 14, 1962 Ext 34 to the L. I. C. in which he informed that the receipt which was obtained from the proposer had been sent to the L. I. C. along with his last report.
16. The settled position in law is that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods; the question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused person. In such a case the elements of criminal offence of misappropriation will be established if the prosecution proves that the accused received the goods, that he was under duty to account for the same and had not done so. It is not the taw that the prosecution has to eliminate all possible evidences or circumstances which may exonerate him. If the facts are within the knowledge of the accused then he was to prove them Of course the prosecution has to establish a prima facie case in tbe first instance. It is enough to establish facts which give rise to a suspicion; and then by reason of Section 106 of the Evidence Act, the onus is thrown on the accused to prove bis innocence.
17. The main points urged on behalf of the defence, challenging the prosecution version of the case against the accused insurance agent. are these The non-production by the prosecution of the accused insurance agent's letter (report) Ext. 31/1 a true copy of which was enclosed with the Field Officer's letter Ext. 31 to the L. I. C. was commented on behalf of the defence, it was suggested that the Field Officer Mahendra had forged the document Ext. 31/1 against the accused insurance agent. As regards the statement in the Field Officer's letter Ext. 31 about the arrangement that the accused insurance agent would clear up all the dues of the proposer who on receipt of the same would make over the insurance agent's receipt, no question was put either to the proposer P. W. 4 Harekrishna Misra or to his son P. W. 1 Srikanta Misra; there is no evidence in support of the version given by the Field Officer Mahendra in his letter Ext. 31. According to the Field Officer, he was paid only Rs. 40 in the presence of P. W. 1 Srikanta Misra but he (P. W. 1 Srikanta Misra) did not say that Rs. 40 only was paid
According to the defence there is no reason why the accused insurance agent's version should not be accepted. As regards the charge of alleged forgery of Ext. 15 the defence case is that the evidence of P W 13 Assistant Branch Manager, L. I. C. only shows that the document Ext. 15 was sent along with the letter Ext. 39 containing the signature of the accused and received at the L. I. C.'s office; the defence point is that there is no evidence that the accused insurance agent Brahmananda had despatched the letter Ext. 39 enclosing therewith the receipt Ext. 15. In fact in his examination under S. 342 Criminal Procedure Code he said that he did not despatch the letter or such receipt as alleged.
18. Apart from these grounds in defence. it was also submitted on behalf of the accused insurance agent that he wholly relied on the Field Officer Mahendra. The defence point in substance is that it was because of the Field Officer Mahendra that the accused insurance agent got into this trouble. It is said that the accused insurance agent's letter addressed to the L. 1. C. were mostly drafted in English by the Field Officer Mahendra and they were simply copied out by the accused insurance agent In support of this, the attention of the Court was drawn to the different exhibits (in original) purporting to show that some of the letters were drafted by the Field Officer Mahendra and written out in fair by the accused insurance agent. In support of this contention it was also submitted that the accused insurance agent had no knowledge of English,
19. On a careful analysis of the entire position in the light of the evidence it is abundantly clear that the accused insurance agent failed to account for the money which admittedly he received from the proposer. In view of the undisputed position in law as indicated above when entrustment was admitted it was for the accused to prove that he hand ed over the money or accounted for the same. The accused insurance agent failed to prove either. The various grounds which are urged in his defence have no significance in view of the clear position that the accused insurance agent tried to give various explanations a! various stages which were contradictory and ultimately found to be false.
20. It is clear from the evidence that entrustment of the proposer's money with the accused insurance agent is admitted by the accused insurance agent It is also abundantly clear that the accused insurance agent failed to prove that he handed over the money to the L. I. C. or that he refunded the money to the proposer as alleged by him. In the ultimate resort the accused insurance agent sought to take recourse to a forged receipt Ext. 15 alleged to have been given by the proposer purporting to have received back the money from the accused insurance agent. The receipt Ext. 15 is denied by the proposer himself P. W. 4; he denied that the signature on the receipt was his or that the money was refunded to him as alleged. Nor could the accused insurance agent in any way account for the money which admittedly was received by him from the proposer for insurance; in fact it is clear from the evidence that certain explanations, which the accused insurance agent tried to give, all turned out to be false as appears from the evidence discussed above. In my opinion there is sufficient evidence in support of the charges against the accused insurance agent.
21. In this view of the case the order ofconviction and sentence passed by the learnedSessions Judge is upheld. This criminal appeal is dismissed