S. Barman, J.
1. This is an appeal from an order of acquittal passed by the learned Magistrate, 1st Class Balasore, whereby he acquitted the accused respondent of a charge of alleged criminal breach of trust, as a public servant, under Section 409, Indian Penal Code.
2. The relevant facts, shortly stated, are these-In the year 1948 when Balasore was under Cuttack Judge-ship, the then District Judge by his order dated April 17, 1948 appointed the Nazir, Munsifs Court, Bhadrak, as Receiver in Insolvency case No. 6-B of 1946; since then whoever was Nazir of the said Court was Receiver; the accused respondent, who was a stenographer of the Additional District Judge, Balasore was appointed Nazir of Munsif's Court, Bliadrak and in the said capacity was the Nazir till February 16, 1957, when he handed over charge of his office as Nazir to his successor one Brajasundar Pati, consequent upon his transfer to Balasore, In course of his term of office as Nazir, the accused respondent sold certain properties of the insolvent as Receiver and thereby realised a sum of Rs. 1500/-; the Receiver did not credit the amount in the General Cash Book; in fact, the Receiver was approached for payment of the said sum of Rs. 1500/- but he evaded payment on some pretext or other. The prosecution case is that on February 16, 1957, when the Receiver made over charge to his successor as aforesaid the accused respondent did not make over the said amount. In 1958, a demand was made on the accused respondent for payment of the money and he was asked to deposit the amount; thereupon the accused respondent wanted time for payment and he could deposit a sum of Rs. 150/- only within the time allowed but failed to deposit the balance. On these facts the then District Judge, Mayurbhanj, Sri R.C. Misra wrote to the Superintendent of Police, Balasore, a letter requesting him that necessary steps may be taken against the accused respondent for defalcation, made by the accused respondent, on the facts and circumstances stated in his: letter. Thereafter, the Nazir was, in due course, sent up for trial for criminal Breach of trust, as a public servant under Section 409 Indian Penal Code and the learned Magistrate acquitted him of the charge as aforesaid. Hence this Government Appeal against the said order of acquittal.
3. The points, - for consideration in this appeal, - are whether there was entrustment of the money to the accused respondent as alleged; and if so, whether there was criminal breach of trust by the accused respondent in respect of the money so entrusted. The defence, - taken at the trial, - was that there was no entrustment of the money, and the accused respondent relied on, Section 56 of the Provincial Insolvency Act which provides for appointment of Receiver in insolvency. His point, in substance, is that only civil liability is provided for in case of default on the part or the Receiver, in that Sub-section (4) of Section 56 of the said Act provides that where a receiver appointed under this Section fails to submit his accounts at such periods and in such form as the Court directs, or fails to pay the balance due from him thereon as the Court directs, or occasions loss to the property by his wilful default Or gross negligence, the Court may direct his property to fee attached and sold, and may apply the proceeds to make good any balance found to be due from him or any loss so occasioned by him. There is, however, no dispute as to the legal position that the same set of facts may give rise both to a Civil liability and a criminal prosecution: But if there is no mens rea, or if the other essential ingredients of an offence are lacking, the same facts may not sustain a criminal prosecution, though a civil action may lie. We have, therefore, to examine whether or not there was mens rea in this case or whether necessary elements of a criminal offence have been made out.
4. The position of a Receiver in insolvency is that of a trustee; ,he does not become absolute owner of the property of the insolvent which is vested in him under the law for certain specific purpose. The learned Government Advocate, in support of the appeal, submitted that it is not the position in law that because a civil liability is provided for under Section 56 of the Provincial Insolvency Act, criminal liability under the Indian Penal Code is therefore barred; that in the present case, apparently, the learned Magistrate was wrong in taking the view that the Receiver in insolvency could not be made criminally liable.
5. In view of the definition of 'public servant' in Clause 4 of Section 21 of the I.P.C., the accused as Receiver in Insolvency, is a public servant. With regard to the onus of proof in respect of criminal misconduct by a public servant, it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or misappropriated the property of his master; 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 property received by him may be treated a strong circumstance against the accused person; in the case of a servant charged with misappropriating the property of his master, the elements of criminal offence will be established if the prosecution proves that the servant received the property, that he was under a duty to account to his master and had not done so; if the failure to account was due to an accidental loss, then the facts being within the servant's knowledge, it is for him to explain the loss; it is not the law of this country that the prosecution has to eliminate all possible defence or circumstances which may exonerate him; if these facts are within the knowledge of accused, then he has to prove them; of course the prosecution has to establish a prima facie case in the 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 to throw the onus on him to prove his innocence. This indeed, is the legal position as laid down by their Lordships of the Supreme Court in a decision in Krishan Kumar v. Union of India : 1959CriLJ1508 which was a decision on Section 5(1)(c) of the Prevention of Corruption Act II of 1947, a provision, which, in pari materia, to the same as Section 409 Indian P.C. and, therefore, the principles laid down therein are equally applicable to the present case.
6. This leads us to the consideration of the facts in the present case. Here, the accused respondent, in his letter dated November 13, 1958 (Ex. 11) admitted that the said sum of Rs. 1500/- realised in Insolvency case No. 6-B of 1946 was with him; in the said letter the accused-respondent asked for a fortnight's time to deposit the amount. Thus, there can be no question that there was entrustment of the money to the accused respondent. The defence plea is that the accused respondent had made the said confession in his letter under a threat that if the accused takes the liability for the amount, he will not be criminally prosecuted. This suggestion of alleged threat is denied by the District judge Sri R.C Misra as P.W. 1 who said that it is not a fact that he communicated threat to the accused through Sheristadar that in case no evidence was furnished, he will be handed over to the police. So also the Sheristadar P.W. 2, while denying the suggestion of alleged threat, said that it is not a fact that he conveyed threat of the District Judge (P.W. 1) to the accused that in case the accused respondent did not write as had been written in Ext 11, he will be handed over to the Police. That apart, the subsequent conduct of the accused respondent, that the accused made part payment of Rs. 150/- and prayed for time by telegram (Ext 12), that cash of Rs. 150/-had been arranged and that he solicited permission for depositing the amount in part by chalan; furthermore, he also made an application for temporary withdrawal of Rs. 1,500/- from the General Provident Fund for making the payment which, however, was rejected by the District Judge, all these are circumstances which support the prosecution case.
7. On the question whether the accused respondent was guilty of criminal breach of trust, the detailed charge-sheet of the Nazarat, Munsif's Court, Bhadrak 'Ext. 8' dated February 16, 1957 shows that the accused respondent's successor Braja Sundar Pati had received charge from the accused respondent of several items of flles and documents and also one voucher for Rs. 200/- and a sum of Rs. 2675-14-9 in cash. The evidence of Braja Sundar Pati (P.W. 5) is that it is not a fact that the accused respondent made over to him Rs. 1500/- in connection with the said insolvency case, thereby meaning that the said sum of Rs. 2675-14-9 mentioned in the charge sheet (which the successor Nazir Braja Sundar Pati received) did not include the said disputed amount Of Rs. 1500/- The said Braja Sundar Pati also in his letter dated November 12, 1958 (Ext. 7) made it clear that he had received charge of the registers and cash as per General Cash Book and that he had neither taken any charge of the Receiver file from the Ex-Nazir (referring to the accused respondent) nor received any amount in respect of that Receiver file. It is therefore, not open to the accused respondent to take the plea that he gave charge of the Receiver file and cash to his successor-in-office as Nazir when he was receiver as stated in the accused respondent's letter dated December 8, 1958 addressed to the District Judge, Barpada (Ext. 6).
8. Mr. G.C. Das, learned Counsel appearing for the accused respondent, by reliance on Rule 21, Part X. Chapter I of General Rules and Circular Orders of the High Court of Judicature, Orissa (Civil), Volume I (1949) Pages 189-190, Submits that Rule 21 provides to the effect that all receipts and payments are to be entered in the General Cash Book, which the cashier shall maintain in a prescribed form and shall enter therein the totals of receipts and payments under different heads as prowled Tinder the Rule. His point is that the said sum of Rs. 2675-14-9 mentioned in the charge sheet must include the disputed amount of Rs. 1500/- because all receipts have to he entered in the General Cash Book. Apart from the position that no point was taken on this line before the trial court, this argument overlooks the last sentence of Rule 21, which provides that
in particular he (Cashier) must include under the head 'other amounts' any sum received by encashment of any payment orders upon the treasury drawn in his favour, whether Cashier, Nazir or Receiver in insolvency proceedings. Or otherwise;' : if indeed, the accused respondent had entered in the General Cash Book this sum of Rs. 1500/- which he received as Receiver in insolvency proceedings, then there would have been some indication to that effect in the book itself; in any event, it was for the accused respondent to explain the account; there is nothing on record to show that such money, which he received as Receiver as sale proceeds out of the sale of the insolvent's property, was, in fact entered in the General Cash book under the appropriate or any head. In the absence of any evidence, showing the exact position, the point taken by Mr. G.C. Das in support of the defence does not appear to get any support. As; aforesaid, the onus being on the accused respondent to prove his innocence, it was for him to clarify the position by reference to the practice and procedure with regard to the entries in the General Cash Book and the nature of the accounts of the Receiver in insolvency. Thus, we are of opinion that the accused respondent failed to prove that the said sum of Rs. 2675-14-9 included the disputed sum of Rs. 1500/-. Therefore, having regard to the admission of the accused respondent himself, his conduct and other circumstances, as discussed above, we are satisfied that the accused respondent was entrusted with the said money in question, and that he is guilty of criminal breach of trust in respect of the said money with which he was entrusted in the circumstances as aforesaid.
9. In this view of the case the order of acquittal passed by the learned Magistrate 1st class, is set aside. We find the accused respondent guilty of the offence of criminal breach of trust under Section 409 I.P.C., convict him thereunder, and sentence him to undergo rigorous imprisonment for six months and pay a fine of Rs. 500/-and in default of payment of fine, he shall undergo rigorous imprisonment for a further period of six months.
R.K. Das, J.
10. I agree.