S.K. Ray, J.
1. The sole petitioner has preferred this revision against his conviction and sentence, by an order of Sri U. N. Misra, Additional Sessions Judge, Cuttack, in Criminal Appeal No. 381-C of 1964, confirming the order of conviction and sentence passed by Sri S.N. Misra, S. D. M., Jaipur, dated 3-10-64, passed in G. R. Case No. 712 of 1961.
2. The petitioner has been convicted under Section 409, I. P. C., and sentenced to undergo R. I. for a term of nine months and to pay a fine of Rs. 500/- in default to undergo R. I. for further term of three months.
3. The charge against the petitioner is as follows.
'That you on or from 28-1-59 to 3-1-59 (sic) while working as the Mohurir of Dangadi Naib Tahsil Office and as such a servant under Government and in such capacity entrusted with certain property,to wit, an amount of Rs. 1081-32, committed criminal breach of trust in respect of such property, and thereby committed an offence punishable under Section 409 of I. P. C. .... .'
4. The Tahasildar of Sukinda lodged first information report with the officer-in-charge of Sukinda police station by his letter No. 3859 dated 20-9-61 in which the amount alleged to have been misappropriated by him is stated to be Rupees 1061-32 nP The I. O. mentioned the misappropriated amount in his charge to be Rs. 1081-32. The prosecution evidence led in this case shows that the misappropriated amount is in fact Rs. 1060-97. In the first information report, the Tahasildar has indicated four types of misappropriation and sets out the amount misappropriated under each such type and the modus operandi of misappropriation. It is stated in the first information report that he realised a sum of Rs. 399-53 from tenants between 6-5-59 and 3-11-59 by issuing outer foils of receipts and without preserving the corresponding counterfoils in the receipt-book. There were six items of transactions of misappropriation under this head. In evidence the misappropriated amount in fact is found to be Rs. 415-78. The amounts realised fraudulently were not entered in the Shiha register or cash register.
5. The second item of misappropriation is stated to be Rs. 170.11 in seven transactions. The outerfoils and the counterfoils in respect of each such transaction bear the names of different tenants, that is, in some cases where the name of tenant both in the outerfoil and counterfoil tallies, the amounts realised under those receipts (outerfoil and counterfoil) vary and the counterfoils which are kept in the office show a far less amount than those outerfoils. The accused deposited the amount as stated in the counterfoil and misappropriated the balance. This kind of misappropriation took place under seven transactions between 20-3-59 to 15-6-59.
6. The third act of misappropriation is stated to be under two transactions dated 28-1-59 and 12-4-59 amounting to Rupees 161.62 received from tenants in which two receipts from an unused receipt book were used. This amount was also not accounted for in the connected register kept in the office. It was found at the evidence stage that the actual amount realised was Rs. 152.64 instead of Rs. 161.52 as stated in the F. I. R.
7. The 4th act of misappropriation consists of realising a sum of Rs. 88.06 (at the evidence stage it was found to be Rs. 88.68), was realised from three tenants under three fraudulent receipts issued by the petitioner, dated 31-3-59, 12-4-59 and 18-5-59, and this amount so realised was not entered in the account books.
8. The petitioner further misappropriated a sum of Rs. 242-00 by issuing fraudulent challans dated 17-7-59, 23-7-59 and 5-9-59. to P. Ws. 3 and 18 although nothing was legally due from those tenants. He did not enter the same in the relevant books of account.
9. The prosecution examined 31 witnesses and exhibited 31 documents to prove the aforesaid cases while the defence examined one witness and exhibited two documents.
10. The defence plea as appears fromthe examination of the accused under Section 342, Cr. P. C. is a denial of the entire prosecution case. The accused says that he did not collect any amount nor granted the rent receipts, miscellaneous receipts and challans which have been proved in this case. His further plea is that Hamachandra Paricha, the Naib Taha-sildar has concocted this case against him being inimically disposed towards him and to corroborate this plea, the petitioner examined one defence witness.
11. Both the courts have found thai the petitioner was a public servant while he made the aforesaid realisations from the tenants, working as a Mohurir of Dangadi Naib Tahasildar's office during the period within which the said collections were made, and that he, in fact, realised the same in the capacity of a public servant from the various tenants under various receipts, challans and counterfoils and oulerfoils as indicated above. It is further found that instead of depositing the amount into Government account, he committed criminal breach of trust in respect of the entire sum.
12. It may be stated here that the petitioner started paying the defalcated amount when the criminal prosecution was initiated by lodging the first information report by the Tahasildar of Sukinda and by now, he stated, the entire amount had been paid up.
13. Before dealing with the various contentions raised here, it is necessary to set out the work of the petitioner as a Muhurir in Dangadi Naib Tahasildar's office. It is found that though it is the duty of the Naib Tahasildar to collect Government revenue in which it is equally the duty of the Muhurir to render assistance, yet in practice the Mohurir, that is, the present petitioner used to collect the rent direct from the tenants and grant receipts before the new revenue rules of 1961 came into force, That apart, this petitioner was vested with the powers of Naib Tahasildar and was thus authorised to collect rent during the absence of the Naib Tahasildar on leave between 14-1-59 and 23-2-59. In dealing with the legal contentions raised, it must be taken as proved that the petitioner collected a sum of Rs. 1081.32 from various tenants and failed to enter the same in the relevant register and defaulted to deposit it in the Government treasury.
14. Both the courts below have construed the payment of various amounts by the tenants to the petitioner as 'entrustment' and failure to deposit the same into the Government treasury, as committing criminal breach of trust.
15. The first contention urged is that thepetitioner, as a Mohurir, is not authorised to collect rent or for that matter any dues payable by any tenant to the Government. He deceived the tenants by creating belief in them falsely that he is invested with legal powers to collect rent and other dues and was entitled to grant receipts for the same. Entrustment was brought about by this deceit practised by the petitioner on the tenants. 'Entrustment' conceived under Section 405 of the Indian Penal Code is a legal entrustment and not an entrustmcnt brought about by deception. Therefore, when there is no legal entrustment. conviction under Section 409, I. P. C., must fail. The petitioner may as well be guilty under Section 420, I. P. C., but since there is no charge under that section and since the present charge under Section 409 is unsustainable under law, he must be acquitted. For this proposition of law reliance was placed on AIR 1954 Ori 213, State v. Radhakanla Patnaik where it is stated as follows:
'The word 'entrustment' or 'entrusted' though used in Section 405 is not defined in the Penal Code. The word itself conveys and includes that the persons handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship as between them. That confidence cannot arise when the property was acquired by the offender by some trick. Such a trick prevents any true consent arising. If the property is obtained by trick, or by any other unlawful means, then there cannot be any entrustment. 'Entrustment' means the handing over of the property by lawful means. The phrase 'any other manner' connotes any other legal manner but not otherwise.'
16. Reliance was also placed upon the case, Budhalal v. Stale of Rajasthan, (C. A. No. 156 of 62 D/- 27-1-1965) decided by the Supreme Court (Supreme Court Encyclopaedia, Vol. HI, p. 497) for the proposition that when a Government servant helps another Government servant whose duty it is to deal with entrusted property, would not make the helper the 'person entrusted with the property'. Basing on this, and on the finding of the trial court in Para. 6 of his judgment that it was the duty of the Naib Tahasildar to collect the revenue and the Mohurir's to assist the Naib Tahasildar. it is urged that this assistance would not make the receptionof the money from the tenants and act of entrustment, though the petitioner had not the legal duty to collect any rent, he in practice was collecting the same and was thereby being allowed impliedly by the Naib Tahasildar to collect it. Further, the evidence as already stated, shows that he was explicitly authorised during the period from 14-1-59 to 23-2-59 to collect the rent. So for the entire period during which the alleged collection of rent by the petitioner has taken place, he was legally authorised to collect rent for a third party between 14-1-59 to 23-2-59, and for the rest of the period he collected in accordance with the prevalent practice. During the period of authorisation, the evidence shows that he has collected a sum of Rs. 62-61 under receipt No. 474642 dated 29-1-59 (Ext. 13/1). The finding of prevalent practice of collecting rent by Mohurir would amount to a finding that the Naib Tahasildar had the legal authority to collect rent and he lawfully authorised this petitioner to collect the same from the tenants. So in exercise of the implied authority the collection of rent and other dues from the tenants bv the petitioner cannot be said to be wholly illegal. Therefore, payment of rent to him would constitute 'entrustment'.
17. A decision was cited on behalf of the State reported in AIR 1967 SG 1590, which lends some support to the theory that a person authorised to collect, might delegate his function to a subordinate of his, and in such a case that subordinate also gets a legal right to collect and when he acts in exercise of such delegated authority any amount that is paid to him, would constitute 'entrustment' within the meaning of Section 405, Indian Penal Code. Therefore, in my opinion, this point must fail. At any rate, so far as the collection of the amount of Rs. 62-61 by the petitioner on 28-1-59 under receipt No. 474642 is concerned, there was clear entrustment of that amount which had been misappropriatedv So even if in respect of the other amounts except the one on 28-1-59, there would be no entrustment and even if the charge under Section 409 in respect of those transactions might fail, yet the charge so far as the transaction dated 28-1-59 is concerned it must stand, I am, therefore, of the opinion that the conviction under Section 409. I. P. C. cannot be abashed on this ground.
18. The second ground urged is that the charge is defective and the conviction on that account should be set aside. The petitioner is an English-knowing educated man, and had been working as Mohurir in the Naib Tahasildar's office for a long period, and had been attending the trial from day to day and hearing the evidence adduced in his presence. He also was being assisted bv a lawyer. He has not raisedany plea of any prejudice having been caused to him on account of this defect in the charge either in his examination under Section 342, Cr. P. C. nor before the trial Court at the time of argument, nor even before the lower appellate court. In fact, a charge is always curable, if it is shown that the accused had been seriously pre-judiced by any such defect in the charge. No prejudice is shown to have been caused to the petitioner and this plea has been raised for the first time here in this court. Hence, in my opinion, there is not much substance in this point.
19. The second point raised is that the examination of accused under Section 342 has been improper and the accused has been prejudiced. It is true that one question in the form of a long narration has been put to him instead of bringing different pieces of material circumstances intended to be used against him through separate questions to obtain his answer in accordance thereto separately. In case of an illiterate person, I would have been inclined to hold that examination of this sort automatically causes prejudice, but in the present case the petitioner must be deemed to be aware of pieces of evidence which were being adduced against him at the trial. He raised no objection in respect thereof at the trial, nor was any such point taken in the lower appellate court Hence, I am inclined to agree with the Additional Standing Counsel that the petitioner has failed to show the character of prejudice which has been caused to him by this sort of examination.
20. The next point urged is that Exts. 7, 8 and 9 which are one application, and two letters respectively of the petitioner to the Tahasildar in which effort was made to deposit the entire amount which he is alleged to have misappropriated. These documents contain an admission of the petitioner that he having received the amounts from the tenants was willing to deposit the same into Government treasury. The defence argues that these documents are not admissible under Section 24 of the Evidence Act and in making out this point, he relies upon the evidence of P. W. 5 who says:
'I told him that if he deposits the amount no action will be taken;'
and urges that the confession of the petitioner contained in Exts. 7, 8 and 9 have been made on account of this inducement proceeding from P. W. 5 who is a person in authority. But I find that the accused did not take the plea of inducement in his examination under Section 342. nor urged this point before the lower appellate court. To make Section 24 of the Indian Evidence Act fully operative it must be shown that not only there was inducement proceeding from a person in authority, but that the said inducement was sufficient to give the accused person a chance which would appear to the Court reasonable for supposing that by making such confession the accused gained any advantage or did avoid any evil of temporal nature in relation to the criminal proceeding. There is nothing on record by way of any circumstance or positive evidence which would incline me to hold an opinion that whatever assurance was contained in the statement of P. W. 5 quoted above was sufficient to give the petitioner a reasonable ground to suppose that by making any such confession as is contained in Exts. 7, 8 and 9, he gained any advantage or avoided any evil of temporal nature of harassment in a criminal prosecution. When I hold this opinion, I have to negative the contention urged on the footing of Section 24 of the Evidence Act.
21. In view of the aforesaid discussion there is no merit in this application which must accordingly fail.
22. The petitioner has filed an affidavit in this Court stating that he paid the entire amount which he had misappropriated and the Government have been fully recompensed thereby. He has also sworn an affidavit stating that he has already undergone thirty days' imprisonment. The trial in fact has gone on fop more than four years. In the circumstances, I feel that the ends of justice will be amply met if the sentence of imprisonment awarded to the petitioner is reduced to the period already undergone by him,
23. In the result, therefore, while dismissing this criminal revision 1 would maintain the conviction of the petitioner under Section 409, I. P. C., and reduce the sentence of imprisonment to the period already undergone by him and maintain the sentence of fine imposed upon him,
24. The revision is accordingly dismissed with the aforesaid modification in the sentence.