1. The appeal is against an order of acquittal of respondent Bira Kishore Naik (accused) who was tried under Sections 409, 467, and 477A, I.P.C. The learned Government Advocate does met press the appeal under Sections 467 and 477A, I.P.C. The appeal is only confined to the charge under Section 409, I.P.C.
2. The prosecution case is that Somanath Naik, the father of the accused, was appointed Extra Departmental Agent of the Paramanandapur Branch Post Office in the district of Sambalpur. The accused was looking after the official duties of the father fully. On 9-4-1959 he received Rs. 609/- from Jogendra Sahu (P.W. 2) for remission by money-order and granted the receipt (Ex. 3) in his own hand-writing and signature. The amount was not entered in any of the registers kept in the post office and the money-order was not remitted. The Inspector of Post Offices (P.W. 1) detected this fact more than a year after. When he brought the matter to the notice of the accused, the latter deposited the amount on 17.9.1960 and the deficit was made good. The accused pleaded innocence.
3. The learned Assistant Sessions Judge found that the accused was discharging the duties of the Extra Departmental Agent of the Branch Post Office on behalf of his father, but he was doing so without any recognition or appointment by the Postal Department. The accused received Rs. 609/- from P.W. 2 on 9-4-1959 and granted postal receipt (Ex. 3). He did not enter the amount in any of the postal registers and did not send the money-order to the payee. He deposited Rs. 1370.25 nP. on 17-9-1960 and this deposit included the sum of Rs. 609/. Though on facts the entire prosecution case was accepted, the learned Assistant Sessions Judge acquitted the accused of the charge under Section 409, I.P.C. as he was not a public servant. The findings of fact are not disputed by Mr. Rao.
4. The learned Government Advocate raised the following contentions:
(i) The accused was a public servant within the meaning of Section 21, Ninth clause, read with Explanation 2, I.P.C.
(ii) Even if the accused was not a public servant, he was the Agent of P.W. 2 for transmission of the money-order and is liable to be convicted under Section 409, I.P.C.
(iii) At any rate, the accused is guilty under Section 406, I.P.C.
5. Section 21, I.P.C. defines 'public servant'
The words 'publicservant' denote a person falling under any of the descriptions hereinafter following, namely,-
Ninth--Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey assessment or contract on behalf of the Government or to execute any revenue process, or to investigate, or to report on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty:
XX XX XX
Explanation 2 -- Where the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, 'Whatever legal defect there may be in his right to hold that situation' .
The underlined (here in ' ') wordsare crucial. Even if a person is inactual possession of the situation of apublic servant, he is not a public servant unlesshe had a right to hold that situation. In determining his right to hold that situation, the legaldefect, if any, is to be ignored. For instance, aperson has been appointed as a public servant butbefore the appointment letter is issued to him, hemight start doing the work of that post. In thatcase, the person would come within the meaningof 'public servant' even though the actualappointment letter had not been issued. The incumbent had a right to hold the situation as hehad already been appointed. But the legal defectlay in the fact that the actual appointment letterhad not been issued. An interloper in possession ofa public office is not a public servant.
In this case, admittedly the accused had not been appointed as the Agent of his father. The Department also did not give such recognition even without the appointment. P.W. 1 admits that--
'The officially appointed Extra Departmental Agents remain solely responsible for any loss, negligence, misappropriation, irregularity, committed at the Branch Office.'
He also stated that the accused had not been appointed as an Extra Departmental Agent. If the accused had been recognised as an Extra Departmental Agent without the letter of appointment being issued to him, he would have come within the mischief of Explanation 2. Without appointment or recognition by the Department, he lad no right to hold the post and he was not a 'public servant'. The same view has been taken in Elahi Bux Khan v. State, (S) AIR 1955 Cal 482. The learned Assistant Sessions Judge rightly held that the accused was not a public servant. The first contention fails.
6. Section 409, I.P.C. runs as -
'Whoever, being in any manner entrusted with property, or with any dominion over property in bis 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 that property, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also liable to fine.'
The accused comes within the meaning of 'agent' used in the section. An agent is a person employed to do any act for another or to represent another in dealing with a third person. The accused was the agent of P.W. 2 in his dealings with the payee. Mr. Rao, however, argues that the accused was the agent of his father who was agent of P.W. 2 in his dealing with the payee. P.W. 2 knew full well that the accused was working as the agent of his father and this was also to tike knowledge of the Postal Department. The liability was of the father in respect of any dereliction including misappropriation. Though the plea was not specifically taken in the trial court, Mr. Rao contends that the accused received the money, handed over the amount to his father who was solely responsible to the public and to the Postal Department, and for any detention of the money by the father he cannot be charged with criminal breach of trust. According to him, the deposit of the money by him en 17-9-1960 was also under the instruction and direction of his father. The explanation is plausible and may be true. A position can be visualised in which the money was handed over by the son to the father who misappropriated the same. The accused is only liable to the father who was really the agent of the payers in relation to the payees. The accused is entitled to benefit of doubt and cannot be convicted for criminal breach of trust. On this reasoning, both the 2nd and the 3rd contentions fail. It is somewhat remarkable that both the father and the son were not jointly prosecuted. This explanation could not have been available, to the son if the father had been jointly tried.
7. The appeal fails and is dismissed.
8. I agree.