1. This is an appeal by the Government under Section 417, Cr. P. C., from the order of the Magistrate, 1st Class, acquitting Sri R. K. Patnaik of the charges under Sections 409, 420 and 465, I. P. C.
2. The accused Radhakanta Patnaik was the section officer, Manijanga, under the S. D. O., P. W. D., Jagatsingpur, in December 1950. On 17-12-1950, the then Chief Engineer Mr. Shaw, Irrigation Department, Orissa, intimated to the S. D. O., P. W. D., Jagatsingpur, that he would tour on the canal embankment from Santra Bundh to Paradwip from 24th to 27th December, 1950. He wanted the canal bund to be made motorable, vide Ext. 1. The S. D. O. (P. W. 1) directed the accused to 'keep the canal embankment from Anantapur to Paradip in motorable condition on 26th and 27th December', vide Ext. I-a. The order was communicated to the accused on 20-12-50, vide Ext. I-b. The evidence on the record is to the effect that the accused-section-officer personally came to S. D. O.'s office, where the order was communicated to him on the morning of 20-12-1950.
The evidence of the S. D. O. (P. W. 1) shows firstly, that he instructed the accused to engage labourers departmentally on muster roll; and that on 25-12-1950 he found the work to have been done satisfactorily. On 2-1-1951, the accused-sec-tion-officer submitted the muster roll, Ext. 3 for payment of Rs. 166/- to 31 labourers who, according to him, were engaged for the work on the aforesaid bund from 20th to 25th December, 1950. That muster roll appears to have been prepared by the accused-section-officer in accordance with the daily accounts of work submitted to the S. D. O., P. W. D., Jagatsingpur, for the work done from 20th to 26th December, 1950 (Ext. 2). In the muster-roll, Ext. 3 the accused has shown the names of the labourers engaged, the amount paid to them and also their signatures and thumb-marks as the case may be against the name of each.
Ext. 3 was checked by the cashier with reference to the daily account of work; and an order for payment of Rs. 166/- to the labourers was passed by P. W. 1; and the amount was sent to the accused for payment to the labourers mentioned in Ext. 3. The accused-section-officer re-submitted the muster-roll Ext. 3, with a certificate Ext. 3-c dated 20-3-51 showing the disbursement of the amount and the signatures and thumb-marks against the names of those labourers by way of an acknowledgment of the payment made.
3. The patrol K. C. Samantray was the subordinate of the accused, on 31-1-51 he sent three petitions against the accused-section-officer, one to the Chief Engineer, another to the Executive Engineer and the third to the S. D. O. (P. W. 1), alleging therein that the section officer had engaged only five outside labourers for three days and spent only Rs. 26-8-0 but billed for Rs. 166/-in the muster-roll as if thirty-one outside labourers were engaged for doing the repair work. The matter was then handed over to the Enforcement Department, Orissa, for investigation and necessary action, if on investigation, the facts alleged in the petition of K. C. Samantray were found to be true. Accordingly, the police submitted charge-sheet against the accused after necessary investigation, to take his trial under Sections 420, 409 and 465, I. P. C.
4. The defence of the. accused was throughout that the muster-roll showed the correct state of affairs in this that besides the departmental gang-coolies and Khalasis, 31 outside coolies were engaged for the repair of the embankment from Anantapur to Paradip in connection with the impending visit of the Chief Engineer; that the amount of Rs. 166/- sent to him by the S. D. O., P. W. D., was rightly disbursed among the labourers; and that they put their signatures and thumb-marks as the case may be against their names in the muster-roll on receiving their wages.
5. The trying Magistrate has acquitted the accused of all the charges levelled against him.
6. The main charge against the accused is cheating under Section 420, I. P. C., it being that the accused on 5-1-51 induced the S. D. O., P. W. D., to deliver Rs. 166/- only
'by deceiving him to pass payment orders on the muster-roll Ext. 3 for payment of wages to 31 coolies engaged for repairs of the right embankment of the canal from Anantapur to Paradip and to deliver the same for payment to the coolies.'
The learned trying Magistrate has acquitted him of the charge substantially on a two-fold ground, firstly, that the evidence of witnesses who prove the charge is not only discrepant, but also untrustworthy; and secondly that there is a lacuna in the prosecution case, inasmuch as no attempt was ever made either by the P. W. D. authorities or by the I. O. to ascertain on inquiry as to the total quantity of work done on the embankment from 20th to 25th December, 1950, so as to find out whether besides the 20 Government retained coolies the 31 outside coolies were engaged for the work as shown in Ext. 3.
None of these reasons can be lightly brushed aside. To prove the charge, the prosecution has examined five outside coolies, P. Ws. 5 to 8 admittedly engaged for the work on the embankment and two P. W. D. retained coolies P. Ws. 9 and 10 who admittedly did the work on the embankment and who got monthly wages from the department. Their evidence shows that only 20 P. W. D. retained coolies and 5 outside coolies did the entire repair work on the embankment, and that no other outside coolies were engaged during the period from 20-12-50 to 25-12-50. Their ' evidence finds corroboration from the contractor, P. W. 25, and the two patrols under the accused. They are P. W. 2, K. C. Samantray and P. W. 26 one S. C. De. They have filed their diaries in corroboration of what they have deposed to in the court.
Ext. 7 is the diary of P. W. 2, and Ext. D isthe diary of P. W. 26. Siba Jena (P. W. 25), acontractor who supplied these five outside cooliesP. Ws. 5 to 8, and another who has not been examined in this case, at the request of the accused,has stated that those coolies started their worknot from 20th but from 22nd December, and continued the work not till 25th December, but till 24th December. He has further stated that only five outside coolies were engaged, and that theentire work was done by 20 retained Governmentcoolies and 5 outside coolies. But the evidenceof P. W. 25, when closely analysed with referenceto that of P. Ws. 5 to 8 makes it abundantly clearthat they did the repair work over a distance ofonly one mile from Santra Bend tp Bhutmundiand not over the distance of entire six miles. Itappears from their evidence that the embankment beyond those places cannot be visible from theplaces where they were working which is onlyover a distance of one mile. It is therefore notsurprising that they could not know as to whether any other outside coolies were engaged atother places on the embankment.
From their evidence, it does not appear clear beyond any shadow of doubt that they could speak of the work done over the whole distance of six miles. It appears from Ext. 3 that four kinds of work were done on the embankment so as to make it motorable. They are: (1) Removing blown down trees and branches from the water surface of T. canal; (2) Refixing sign posts in position; (3) Earth work, and (4) Kia cutting. It is not denied by the prosecution that these four kinds of work were done on the embankment; but from the evidence of the coolies and P. W. 25, it appears that what the outside coolies did, is only the earth work. P. Ws. 9 and 10 are retained coolies. They speak to the same fact, viz., that only 20 retained coolies and 5 outside coolies did the work. But their evidence shows that they did the repair work only from Santra Bend to Bhutamundi for six days, and that they were never engaged for the work at other places of the embankment. But from the evidence of outside coolies, it appears that they did the repair work from Santra Bend to Bhutmundi.
In face of this conflicting evidence, I think that the learned trying Magistrate is perfectly right to say that not only they cannot be said to have had sufficient knowledge about the work over the rest of the distance, but also that their evidence is untrustworthy. P. W. 2 is the patrol on whose petition the accused was prosecuted. On his own evidence, it appears clear that he is on inimical terms with the accused, because the accused had taken steps against him not only for non-submission of his diary, but also for his insubordination. His evidence is to be taken with great caution. He has produced his diaries, Ext. 7 to prove that his evidence is trustworthy. But the learned trying Magistrate has disbelieved the bona fides of his diary on the view that it exhibits signs of interpolation.
The Magistrate called for the original of Ext. 7 said to have been sent to P. W. D., but it was not produced. It is why he has drawn an adverse Inference against the genuineness of Ext. 7. We have closely examined that diary; and we are satisfied that the internal evidence in it shows signs of interpolation with regard to the names of five coolies supplied by P. W. 25. The evidence of P. W. 26 does not give us any help. His diary Ext. D shows how much distance he covered during those periods. It does not show whether he was looking after the work of outside coolies. All that it shows is that he was supervising the work of Khalasis and gang-coolies from Paradip to Bhutumundi but not from Anantapur to Paradip. On a consideration of the entire evidence to prove the charge against the accused, we are of the opinion that the learned trying Magistrate is perfectly right in thinking that the evidence is not only untrustworthy but also conflicting in nature. On going through the evidence, we feel satisfied that the reason given for such a finding is not at all perverse, even though it creates a great suspicion against the conduct and bona fides of the accused.
7. The prosecution has also examined some outside coolies, P. Ws. 11 to 24 to prove that they never worked during the period in question on the embankment as outside labourers. Names of some persons bearing the names of P. Ws. 10 to 25 appear in Ext. 3, and have been described by names of their respective fathers. But curiously enough, their places of residence have not been given. Such an omission in Ext. 3 may be taken as deliberate, so that the higher authority would not be in a position to check the correctness of the entries on verification. Notwithstanding it, the I. O. with great difficulty visited some villages such as Podopoda, Ananthapur, Bambilo, & Jagan-nathpur situate near about the canal embankment. It is, therefore, that the learned trying Magistrate has rightly observed that when with reference to their places of residence, the persons examined as witnesses cannot be identified to be the persons shown in Ext. 3, no reliance can be placed on their evidence. We think that he is not wrong in taking this view. P. W. 15 one Nilei Swain has stated in his examination in chief that he was not engaged for the repair work. He was at first examined by the police.
It appears that before the police, he admitted to have worked (sic) on the embankment, but subsequently he denied his version that he never worked. He has stuck to his second version before the court. His evidence when considered with reference to his earlier statement gives us an indication that some other outside coolies were also engaged. On 25-12-50, the S. D. O., P. W. D., (P. W. 1) visited the locality from Anantapur to Bhutumundi. In Ext. 3, eleven outside coolies have been shown to have worked on that day; but from the evidence of P. Ws. 2 and 25, it appears that only five outside coolies supplied by P. W. 25 worked from 22nd to 24th, but not on 25th December. But P. W. 1 has stated that he found some gang coolies and Khalasis and also some outside coolies working on the canal embankment.
This evidence supports the fact shown, in, Ext. 3 that some outside coolies were engaged on 25-12-1950; and it at the same time shows that P. Ws. 2 and 25 have not given the correct version. Taking into account all these circumstances, it ap-pears to me that by the examination of these witnesses, the prosecution has not satisfactorily proved the charge against the accused, though their evidence has revealed certain suspicious circumstances as against the accused.
8. Another ground which I think was rightly taken by the learned trial court is that no attempt appears to have been made either by P. W. 1 on by I. O., P. W. 3 to prove by actual check and measurement what was the total quantity of work done over the six miles of the embankment during the period from 20th to 25th December, 1950. In Ext. 3, the accused has shown the total quantity of work done under various heads by 31 coolies. It does not show the quantum of work done by Government retained coolies. Separate Hazira is maintained for the work of retained coolies; and their wages are calculated on a monthly basis on the footing of that Hazira. Exts. 3, 3-b and 3-o are their Haziras for the month of December, 1950. Exhibit 3-a shows the total quantity of work done by the Govt. retained coolies during the month, of December, 1950. There is nothing in it to show what was the total quantity of work turned out by them on the canal embankment from 20th December to 25th, December.
It appears that in the last week of January 1951, P. W. 1 received the petition from P. W. 2 on which this prosecution has been launched. Had ha started an inquiry immediately on receipt of that petition, and checked the out-turn of the work done on the embankment, certainly he would have been in a position to know the correctness of the entries as regards the out-turn of work shown in Ext. 3. Had he found on inquiry that the total quantity of work done on the embankment to make the road motorable is what has been shown in Ext. 3-a certainly it would have gone a great way to show that the work shown in Ext. 3-a was dona not only by outside coolies, but also by the twenty retained coolies, proving to the hilt that the accused has falsely and dishonestly shown in Ext. 3, the names of outside coolies inflating their number so as to obtain Rs. 166/- of Government money from P. W. 1 by false representation.
If, on. the other hand, such an inquiry would reveal that besides the work shown in Ext. 3-a, the other quantum of work was found to be sufficient enough for the labour of 20 Government retained coolies, then it would clearly prove that the figure of 31 coolies shown in Ext. 3 is not an inflated one. This measurement could have been done by P. W. 1, even though at the time when the police inquiry was started, some of the repair work might have been obliterated. P. W. 1 was not prompt in this respect. Moreover, on 27th February, he got an order from the Chief Engineer that he should stop inquiring, as the matter had been handed over to the police. However, the learned trial court cannot be said to have taken this view as beside the point. In my view, he has made the right approach in finding out the truth or otherwise of the prosecution case.
9. It is further urged on behalf of the prosecution that there was really no work done on 20-12-50; but it has been shown in Ext. 3 as having been done by 31 coolies, and that though the five coolies were engaged according to the evidence of P. W. 25 from 22nd December, their names have been shown in Ext. 3 as having started the work on 20-12-50. It is, therefore, contended that these two instances reveal the mala fide conduct of the accused in making false representation to procure Government money from P. W. 1. No such point was taken up in the court below, and no attempt was made to bring out any such circumstance in the evidence to prove it. The accused was not asked any question about it in his examination under Section 342, Cr. P. C. Had any such question been asked, he would have explained his stand with regard to it. However, the conduct of the accused in this connection appears to be suspicious. It appears from the evidence that the accused on the morning of 20-12-50 covered a distance of 14 miles from Manijanga to Jagatsingpur. It was there that the order to make the road motorable was communicated to him as appears from Ext. 1 (b).
He left that place at about 9 or 10 a.m. met the contractor (P. W. 25) at about 10-30 a.m. at Nua-pada, and requested him to supply outside labourers. As a matter of fact, P. W. 25 supplied five labourers on 22nd. As it was the harvesting season, labourers were not easily available unless offered higher wages. It appears to me difficult to believe that the accused could arrange 26 more labourers on reaching his section office and engaged them for the day. They must have gone to fields in the morning. There is no evidence to show how could the accused, who had joined his post quite recently, arrange so many coolies on the 20th itself. But curiously enough, no evidence was adduced to that effect in the trial court; and it also remained unnoticed by the prosecution in the trial court.
As a matter of fact, on 27-12-50 the accused sent the account of his daily work, which was accepted by P. W. 1 as a bona fide transaction. He never challenged it, having regard to the time of the presence of the accused at his office at Jagatsingpur. in this view of the case, I think though there arises a grave suspicion against the bona fides of the accused, it cannot go to prove, beyond doubt, the case of the prosecution.
10. As regards the entries in Ext. 3 regarding the engagement of the five outside coolies supplied by P. W. 25 from the 20th, they appear to have been made deliberately. They worked, as evidence shows, for three days. But in Ext. 3 they have been shown to have worked for five days. We have it from the evidence of P. w. 25 that they were paid in all Rs. 25/- as their wages. Exhibit 3 shows it. We are told, though there is no positive evidence that the scheduled rate of daily wages is Re. 1/-. Exhibit 3 shows that daily wages at the rate of Re. 1/- for each coolie has been charged, presumably showing it to be the scheduled rate. Nevertheless P. W. 25 engaged them at a higher rate on account of the non-availability of labourers during the harvest season. It is contended on behalf of the accused that they have been shown as working on 20th and 21st only to reconcile the difference on account of payment of wages at a higher rate, but not to deprive the Government of its money.
It is, therefore, that the learned trying Magistrate has held that such an entry in Ext. 3 cannot be said to have been done either dishonestly or fraudulently, when it does not reveal any inten-tion on the part of the accused, either to cause loss to Government or to cause gain to himself. I think, the learned Magistrate has taken, the correct view of the case, even though the conduct of the accused cannot be said to be beyond re- proach. He could have asked the Government to pass the bill at higher rates, stating that for that immediate and urgent work, labourers could not be available at the scheduled rate. However, this cannot prove that P. W. 1 has been cheated of the amount shown as paid to P. Ws. 5 to 8 and to other. In view of all these circumstances, we are of the opinion that the evidence on the record is inconclusive, though it does cast some amount of suspicion about the conduct of the accused. He is therefore entitled to the benefit of doubt and consequently acquittal. We therefore accept the order of his acquittal under this section.
11. Another charge against the accused is under Section 409, I. P. C. The learned Magistrate has acquitted the accused of this charge on the ground that on the facts disclosed in the prosecution case there is a case of cheating under Section 420, and that consequently, there can be no charge under Section 409, because the offences under both these sections, are mutually exclusive. He has relied for this view, on a Full Bench decision of the Madras High Court reported in -- 'Emperor v. John Mclver', AIR 1936 Mad 353 (A), to the effect that a person who obtains property by trick from another bears no resemblance to a trustee under Section 405, I. P. C. But the learned Government Advocate contends in line' of the argument adopted in that case by his Lordship Laxmana Rao J., that after the completion of the offence of cheating, the money or property obtained by cheating comes into the hands of the ^ offender, and when he appropriates it to himself or converts it to his own use, it becomes an offence under Section 409, I. P. C.
In that case, the accused was prosecuted under Sections 420 and 409, I. P. C. before the Magistrate. The facts of that case as stated in that judgment clearly disclose the case of cheating. During the-pendency of the criminal case before the Magis-trate, both the complainant and the accused compounded the case. The charge under Section 420 is a compoundable one with the permission of the Magistrate, whereas a charge under Section 409, I. P. C. is not so. The Magistrate on receipt of the compromised petition gave permission to compound charge under Section 420 and acquitted the accused of both the charges, stating in the order that the facts disclosed in the prosecution case, amounted really to an offence under Section 420; and that there can be no case of criminal breach of trust when the property acquired by the complainant was by cheating.
Against that order, the Government preferred an appeal before the High Court. A Division Bench of the High Court took the view that both the charges can be sustainable in one criminal case; and therefore they set aside the order under Section 409 and sent back the case to the trying Magistrate for retrial, under Section 409, I. P. C. During the re-trial, a question arose before the Magistrate on the plea of the accused as to whether the accused can legally take up the plea of autrefois for his prosecution under Section 409, when he has already been acquitted of the charge under Section 420, I. P. C. The Magistrate, while taking a different view, negatived that plea on the ground that he is bound by the order of the High Court. Against that order, the accused went up to the High Court in revision, but the single Judge before whom the revision petition came, passed an order saying that he does not like to Interfere in revision with theorder of the Magistrate. The accused was thenconvicted; and against his conviction, he againpreferred an appeal to the High Court; and thequestions about his plea of autrefois and also abouthis conviction under Section 409 were referred to aFull Bench.
In that Full Bench, the majority of the Judges were of the opinion that both the charges under Sections 420 and 409 cannot be sustainable as they are mutually exclusive, and that the property acquired by trick cannot be the subject-matter of a trust so as to bring the offender under Section 409, I. P. C., for the appropriation of that property to his own use. The minority view expressed by Laxmana Rao J. is to the effect that the offence of cheating becomes complete as soon as the offender procures the property by deception, and that when he appropriates that amount to his own use he commits an offence of criminal breach of trust punishable under Section 409, I. P. C. He, therefore, maintained the conviction under Section 409 even though the offence as disclosed, comes under Section 420.
In my view, the view taken by the majority Judges is the correct view. The word 'entrustment' or 'entrusted' though used in Section 405, I. P. C. is not defined in the I, P. C. The word itself conveys and includes that the person 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. Laxmana Rao J. has laid much stress on the presence of the phrase 'in any other manner' in Section 405, I. P. C. His view appears to be this that the property acquired either by lawful means or unlawful means may be the subject-matter of a trust, because the phrase 'in any other manner' occurring in Section 405 includes both the means. But in my view, it is not so.
The phrase 'any other manner' connotes any lother legal manner but not otherwise. The person handing over the property cannot be (sic. in?) that case have a free and voluntary volition of mind. However, I think the view taken by the majority of Judges' is this that once a property is acquired by trick or 'in any other means' by false representation to the owner thereof, (sic) creates an offence under Section 420, I. P. C., and that if the offender appropriates that amount to his own use, he cannot be said to have committed an offence of criminal breach of trust, because in that case there was practically no trust created by the owner of the property. But there can be an alternative charge under Section 236, Criminal P. C.; but if once an offender is punished under Section 420, I. P. C. the other charge cannot be sustained. In my view, the learned trial Court has taken the correct view of the case.
12. As regards the charge under Section 465, I. P. C. I think the Magistrate is perfectly right in holding that the prosecution has failed to prove the charge against the accused. The charge is to this effect that the accused in order to show false payment in the muster roll, Ext. 3, forged thumb impressions of the alleged payees showing the disbursement of Rs. 166/- among them. The specimen thumb impressions of P. Ws. 5, 6, 7 and 8 and 11 to 24 were sent to the finger-print expert, P. W. 4, for comparison with the disputed thumb impressions appearing against their names in Ext. 3, and for opinion as to whether or not they tally. He has given his opinion in Ext. 10 and has confirmed it in his evidence before the Court. His opinion is that they do not tally with the specimen impressions taken by the I. O. As already stated above, the prosecution has failed to prove beyond any doubt, the identity of P. Ws. 11 to. 24 as those whose names appear in Ext. 3. It being so, it cannot be said that the thumb-impressions of the labourers taken by the accused are forged ones. This view, I think, has rightly been taken, by the learned trial Court. The opinion of the expert is that the specimen thumb impressions of P. Ws. 5 and 6 do not tally with the impressions appearing against their names in Ext. 3. It is, therefore, contended on behalf of the appellant that the accused has committed forgery. The learned Magistrate has held that the accused cannot be said to have acted dishonestly in respect of their thumb impressions appearing in Ext. 3. The view taken by the Magistrate for this opinion is that actually the amount shown against their names was paid to them. There was no dishonest intention on the part of the accused to create those thumb impressions so as to dishonestly misappropriate the amount shown as paid in Ext. 3. Really it is so.
I have discussed this point in connection with the charge under Section 420. P. Ws. 5 to 8 and another who were really paid their wages have admitted this. The scheduled rate is only Re. 1/-. They worked for three days; and consequently they were entitled to Rs. 15/- at the scheduled rate. But as it was the harvest time, they claimed higher rate. In such circumstances, I think the lower Court was perfectly right in holding that in so far as their thumb impressions are concerned, the accused has not committed any forgery. Nevertheless, I think no material was placed before the trial Court for its judicial opinion, about the identity or otherwise of the thumb-marks in Ext. 3. The finger-print expert has not given any reason for his opinion, nor has he furnished any reason in his evidence before the Court. Though he has prepared the photographic enlargement of the disputed thumb marks and the specimen thumb marks, they were not placed before the court. Practically, there was no material before the trying Magistrate to give his judicial opinion as to the correctness or otherwise of the opinion of P. W. 4. It may be an expert opinion, but nevertheless, it cannot be a substitute for the judicial opinion. Inveriably in all such cases, the courts below should insist upon the production of such materials by the expert as to enable the court to verify the correctness or otherwise of his opinion. However, we agree with the trial court that the accused has not committed any offence under Section 465, I. P. C.
13. In the result, the accused should, as I have stated above, be given the benefit of doubt; and he has been rightly acquitted. We do not see any reason to interfere with the order of acquittal.
14. This appeal must, therefore, fail.
15. I agree that the appeal should be dismissed.
16. There are reasonable grounds for believing that the respondents Radhakanta Patnaik committed the offence of cheating under Section 420, I. P. C. But bearing in mind the observations of the Supreme Court in -- 'Surajpal Singh v. The State', AIR 1952 SC 52 (B), I do not think that this is a fit case for interference with an order of acquittal.