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State Vs. Cheloor Manakkal Narayanan Ittiravi Namboodiri and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1952CriLJ766
AppellantState
RespondentCheloor Manakkal Narayanan Ittiravi Namboodiri and ors.
Cases ReferredBhunoni Saha v. The King
Excerpt:
- - the first accused was not satisfied with an oral promise and insisted, upon p. this contention seems to have found favour with the magistrate who reached the conclusion that at the worst, the extra payments if they were made by p. the subsequent orders passed by the cochin high court indicate that the receivers were permitted to enjoy every concession that they asked for, with the result that it became quite easy for them to commit defalcations. as long as the mills are under court management the receivers should consider themselves free to enter into any arrangement with anybody which they deem best in the interests of the institution. these directions vest, if we may use that expression, an arbitrary discretion in the receivers in spite of the qualifying clause of managers in.....kunhi raman, c.j.1. this appeal is brought on behalf of the state from the order of acquittal made by the special first class magistrate of trichur in c.c. no. 1/1125. there were three accused persons who were tried by the magistrate. they were ittiravi namboodiri, t.a. ramachandra iyer and kesavan nambudiri. the first two were joint receivers of the sitaram spinning and weaving mills ltd., trichur appointed by the high court of cochin in o.s. 2/1123 with effect from 2.7.1123 m.e. the third accused is a nephew of the first accused. in the charge framed by the magistrate accused 1 and 2 were alleged to have committed the offence of criminal breach of trust by public servants under section 389 of the cochin penal code corresponding to section 409 of the indian penal code. the third accused.....
Judgment:

Kunhi Raman, C.J.

1. This appeal is brought on behalf of the State from the order of acquittal made by the Special First Class Magistrate of Trichur in C.C. No. 1/1125. There were three accused persons who were tried by the Magistrate. They were Ittiravi Namboodiri, T.A. Ramachandra Iyer and Kesavan Nambudiri. The first two were joint receivers of the Sitaram Spinning and Weaving Mills Ltd., Trichur appointed by the High Court of Cochin in O.S. 2/1123 with effect from 2.7.1123 M.E. The third accused is a nephew of the first accused. In the charge framed by the Magistrate accused 1 and 2 were alleged to have committed the offence of criminal breach of trust by public servants under Section 389 of the Cochin Penal Code corresponding to Section 409 of the Indian Penal Code. The third accused was alleged to have abetted the commission of this offence by accused 1 and 2 and to have been present when the offence was committed by them. He was, therefore, charged under Sections 389 and 109 of the Cochin Penal Code corresponding to Sections 409 & 114 of the Indian Penal Code. After hearing the evidence placed before him the Magistrate found that the accused were not guilty and he accordingly acquitted them under Section 234(c) of the Cochin Criminal Procedure Code. The learned Advocate-General argues that this acquittal is illegal and incorrect and calls for interference by the High Court.

2. The case against the accused was originally taken cognisance of by the District Magistrate of Trichur who examined P.W. 1 in part and then transferred the case to the Special First Class Magistrate. Prom a perusal of the judgment of the Special First Class Magistrate, it would be evident that he had no experience in trying criminal cases. We are told that he was a Sub-Registrar before becoming a Magistrate. In any event he does not deserve to be congratulated for writing the judgment, from which this appeal is brought. We should in this connection wish to record our appreciation of the able manner in which the appeal was argued before us both by the learned Advocate-General on behalf of the State and the learned Counsel who appeared for the three accused who placed before us a clear analysis of the evidence in support of the respective contentions urged by them.

3. The case for the prosecution in the trial Court was that while accused 1 and 2 were functioning as joint receivers appointed by the Cochin High Court of the Sitaram Spinning and Weaving Mills Ltd., Trichur (which will hereinafter be referred to as the Mills) the first accused received from P.W. 1, M.S. Vaidyanatha Iyer, Rs. 23,100 in excess of the price of one hundred bales of cloth which he had allotted to him from the Mills and that he dishonestly misappropriated the same without entering it in the receivers' accounts and thereby committed the offence of criminal breach of trust by a public servant. The second accused who was joint receiver is said to have participated In the same & the third accused is alleged to have abetted the first accused in the commission of this offence.

4. The evidence for the prosecution disclosed that at the time of the trial P.W. 1 happened to be the owner of the Swadesi Piecegoods Shop in Trichur. He was also a share-holder in the Mills. There is no doubt he had abundant funds at his disposal. Until February 1948 sale of cotton textiles was controlled by an order of the Government and during that period he was getting an allotment of 40 bales of cloth per month. He got this quota from the joint receivers in February and March. After the control of cotton textiles was removed in February 1948 the price of the commodity rose abruptly and there was a regular scramble for cloth manufactured by the Mills since there was no other cloth available in the local market. P.W. 1 was therefore very anxious that he should get a big share of the cloth manufactured by the Mills for the month of April. With that intention he approached the first accused and as a result of negotiation, he got an assurance that he would be given one hundred bales in case he paid Rs. 10,000/ over and above the normal sale price. This was referred to as premium in the course of the conversation between the parties. In accordance with this agreement P.W. 1 went to the residence of the first accused at Vallikat Madhom on 12.9.1123 & paid him Rs. 9000/-. At that time, the third accused who is a nephew of the first accused was present and it was he who counted the money on behalf of the first accused. Thereupon the first accused gave P.W. 1 a delivery note which has been marked as Ext. A. This was for 50 bales which were to be released in his favour on his paying Rs. 33,000/- odd. Under Ex. B, which is the invoice for this lot P.W. 1 took delivery of the 50 bales. An attempt was made at the trial to create a little confusion by drawing attention to the date 3.9.1123 appearing in Ex. A, whereas the transaction took place on 12.9.1123. This apparent discrepancy will be commented on presently at the appropriate place. Subsequently, when P.W. 1 learned that the remaining 50 bales which were promised to be given to him were ready for delivery, he went to the house of the first accused in the night and there made a calculation of the amount to be paid by him on the basis of the cost of the first lot of 50 bales being 26 per cent, above the fixed rates and the cost of the subsequent lot of 50 bales being 50 per cent, over and above the rates fixed. It may here be explained that although the control was raised by the Government among the textile dealers there was what some of the witnesses described as a gentleman's agreement according to which it was decided that they should not charge above certain rates which were fixed by the Southern India Mill-owners' Association. The rates were fixed by Mr. Batchelor, a Director of Messrs. Binny & Co. (Madras) Ltd. who seems to have taken the initiative in doing this. The rates appear in Ex. DP. It must also be mentioned here that there was another point made on behalf of the defence with regard to the second lot of 50 bales for which according to the evidence of P.W. 1 he was to pay 50 per cent, more than the fixed rates. As a matter of fact, it was only 40 per cent, more and according to the prosecution it was a mistake made by P.W. 1 as a result of a slip of the tongue when he was giving evidence in the Magistrate's Court.

5. At the interview which P.W. 1 had with the first accused, the third accused was also present. He made a calculation according to which over and above Rs. 9000/- already paid by P.W. 1 he was to pay Rs. 14,100/-. He asked for a week's time to make this payment. The first accused was not satisfied with an oral promise and insisted, upon P.W. 1 executing a promissory note. This agreement according to P.W. 1 was ultimately concluded and P.W. 1 executed Ex. C a promissory note not in favour of the first accused but at the request of the first accused in favour of a relation, of his by name Chengashinelloor Parameswaran Nambudiri. This was done by P.W. 1 on 29.9.1123 and he delivered the promissory note to the first accused. Subsequently, the first accused and P.W. 1 went to the Mills and P.W. 1 was given 49 bales. That was the only quantity that was then available for delivery under the invoice signed by the second accused bearing date 29.9.1123. It its also-disclosed in the evidence that when the promissory note was executed by P.W. 1 he was given Rs. 900 in cash by the first accused on 29.9.1123 in adjustment of the account, the promissory note being, for Rs. 15,000/. This device of paying and receiving was evidently resorted to with the object of warding off suspicion by avoiding figures which may tally with the version of P.W. 1.

6. Altogether there were 37 witnesses examined on behalf of the prosecution in the trial Court. It also appears from the evidence that due to scarcity of water the Mills were not able to cope with the demand in April 1948 of bleached goods. Thereupon at the direction of the 1st accused bales of unbleached cloth coming under the quota for the month of May were stamped with the seal for April. This according to the prosecution resulted in loss to the Mills because the goods manufactured in April were cheaper than the goods that were available in May. This incident is also set forth in the charge as constituting criminal breach of trust. The explanation given, by the first accused at the trial was that he was not paid Rs. 9000/- by P.W. 1 as alleged by him and that the promissory note Ext. C was executed for cash consideration because P.W. 1 was not in a position to find funds to enable him to make the purchase of the allotments made in his favour by the accused.

7. The endeavour made at the trial was to. assert that even assuming the case for the prosecution is true, the extra payments made by P.W. 1 to the first accused were in the nature of illegal gratification meant solely for the benefit of the first accused and therefore there cannot be any criminal breach of trust committed by the first accused. This contention seems to have found favour with the Magistrate who reached the conclusion that at the worst, the extra payments if they were made by P.W. 1 were in the nature of illegal gratification and that 1st accused was not bound to bring these amounts into the receiver's account in respect of the goods sold from the Mills. The trial Court also was not prepared to believe the evidence of P.W 1 with regard to the payment of Rs. 9000/-. The conclusion reached by the Magistrate was that the offence of criminal breach of trust by a public servant, was not committed by accused 1 and 2 and that therefore there was no case made out against the third accused. He accordingly acquitted all the three accused.

8. It would be convenient at this stage to refer to the powers vested in the receivers who are accused 1 and 2. They were duly appointed as receivers by an order of the Cochin High Court. Ext. BF is a copy of the directions given to the receivers as to the manner in which they should discharge their duties. This conferred upon the Joint receivers all powers of management according to the articles of association of the Mills. They were to submit to the High Court on the 10th of every Malayalam Month a statement of accounts of receipts and disbursements. Clause (3) which We consider as important is to the effect that 'all moneys received in the course of the management shall be deposited in the Bank and drawn upon according to needs.' The next clause restricts the ?power of operating upon the Bank account to the first accused on behalf of himself and the joint receiver the second accused. They were ordered to ?maintain correct and regular accounts with regard to the management of the Mills. The first accused was given a car allowance of Rs. 300 per mensem and the second accused was paid Rs. 600 per month as remuneration plus Rs. 200/- per month as car allowance. They were to move the Court and solicit orders and directions whenever any questions rose in the course of the receivership. They were called upon to put into Court an acceptance of these conditions and an undertaking to be responsible for any loss or damage caused to the Mills due to their negligence or default. The subsequent orders passed by the Cochin High Court indicate that the receivers were permitted to enjoy every concession that they asked for, with the result that it became quite easy for them to commit defalcations. For example, on the 4th of Kumbhom 1123 they put in a petition pointing out that as there was stock worth Rs. 1,75,000/- in the Mills they may be permitted to sell such stock to the merchants in Cochin State 'giving as much preference as possible to such of those former agents of the Mills who are also Cochinites.' They also pointed out that it was expedient to exhaust the stock of the Mills as quickly as possible because there was danger of large quantities of textitle goods being imported to the Cochin State from Bombay. They requested that they may. be permitted to add to the price a commission at the rate of 1 per cent, of the sales during pre-war days, in order that they may reserve this commission in the accounts of Mills and it may be disbursed to the agents who insisted upon commission being paid to them. This petition was ordered by the Chief Justice of the Cochin High Court on the same date (4.7.1123). On 15.7.1123 another order was passed by the learned Chief Justice which gives some concessions and privileges which are not usually granted unconditionally to receivers appointed by the Court. At the beginning of this order there was reference made to the removal of the control orders pertaining to textile goods passed by the Government of India and the Cochin Government and stated that therefore it had ?become Incumbent to give directions to the receivers with regard to the distribution of cloth. In the last paragraph is contained the following direction:

As long as the Mills are under Court management the receivers should consider themselves free to enter into any arrangement with anybody which they deem best in the interests of the institution. That is the only criterion which I consider necessary to be adpoted now. However, I would request the learned advocate appearing for the receivers to inform them about the two or three very attractive offers put forward by some of the advocates appearing in the case. Evidently there appears to be a great demand for the agency and according to law and in commonsense the receivers are bound to act as prudent managers, using that expression as Hindu Law and Marumakkathayam Law conceive it. The duty of a prudent manager is to see that the maximum advantage is obtained and in fact it goes without my saying. The receivers will, therefore, look into this matter and see whether some attractive terms will he obtained.

These directions vest, if we may use that expression, an arbitrary discretion in the receivers in spite of the qualifying clause of managers in Hindu families and Marumakkathayam tarwad to do what they liked in distributing the cloth. They were not asked to be governed by any regulations or rules regarding the ceiling price fixed for the goods. They could accept the best offers made to them irrespective of the manner in which tile offers came. Their solitary concern, according to this order should be to get as much value as possible for the goods. It is strange that there is no reference made in this order to any Code of rules which may be adopted by the Piecegoods Merchants' Association. On the other hand, even if there are such codes which the advocates described in picturesque language as 'gentleman's agreement' they need not be worried about them. On the other hand, their job is to make as much profit as possible. The sum and substance of these directions is that the widest arbitrary discretion was vested in the receivers to choose their vendees and to fix any price that they considered proper. There cannot be greater danger courted than by granting such wide powers to receivers. On 4.9.1123 another order was passed by the Chief Justice of the Cochin High Court. In this it is laid down:

This Court's order directing that cloth produced before 1st April 1948 should not be distributed without further orders from this Court stands cancelled. The receivers will effect the distribution in the usual course subject to the general directions given by the Hon'ble Chief Justice. It is expected that it would be possible to introduce a new scheme for distribution beginning with the production of and after the 1st May 1948.

This is Ext. BZ(1). We should like to refer to Ext. A at this stage. This was incidentally referred to earlier in the course of this judgment in connection with the conflicting versions regarding the date of Ext. A. According to P.W. 1, Ext. A the letter by which 50 bales of cloth were allotted to him from the April production was given to him when the transaction took place on 12.9.1123. On the other hand the date which this document bears is 3.9.1123. We scrutinised the appearance of this document carefully and we are satisfied that it was not an order that was typewritten specially for the benefit of P.W. 1. We have no doubt that it is a stock form prepared in bulk for distribution to persons in whose favour allotments of cloth are made by the receivers. It bears the same date 15th April 1948, corresponding to 3rd Medom 1123. It was on the 4th of Medom that the receivers succeeded in getting the order from the Chief justice of the Cochin High Court vesting a wide discretion to them. They in all probability anticipated such a concession and in anticipation had prepared several of these forms in bulk. Only the name of the allottee remains to be filled and the name of P.W. 1 is written in manuscript at the top of this document. There is also space in the document for entering the number of bales allotted to the party concerned. The opening words of the letter are 'Dear Sirs' which will not be appropriate in the case of a single Individual like P.W. 1. Moreover, it is not the original type-written document. It is a carbon copy as is evident from its appearance. These features can be understood only by a close scrutiny of the document and it is not a matter for surprise that P. W. 1 who had obviously not scrutinised this document nor the date appearring on the document became confused when he was giving evidence with regard to the date on which the bales were allotted in his favour.

9. We have already referred to the decision made by the South Indian Mill Owners' Association regarding the price to be fixed for textile goods. Ext. BP is a list of such prices. It was appropriately referred to by the learned Counsel appearing in this case as a gentleman's agreement from which we infer that it is an agreement that is binding only on gentlemen. Indulging in sales in the black market by persons who do not fall under this category cannot be prevented. There Is no legal sanction for enforcing that agreement and the mere fact that there was an agreement like that cannot be taken advantage of by the accused persons who from the very manner in which they have been behaving as receivers were not apparently guided by decent rules of conduct. Ext. BS is another report submitted by the receivers on which their prayer was granted by the Chief Justice of the Cochin High Court whose order is Ext. BT. In Ext. CB(1) the High Court of Cochin passed the following orders and sent it to the joint receivers accused 1 and 2:

On your report referred to above, I am to inform you that (1) regarding the fresh list showing the revised rates mentioned in para (1) of your report you are free to fix prices observing generally two directions, namely (1) prices should compare with all India figures (b) there is provision for the welfare fund in the new scheme of distribution now pending consideration and that (2) sanction has been accorded for the purchase of cotton as mentioned in para 2 of your report.

Only one other document deserves mention at this stage and that is Ext. IV the order made by the High Court in discharging the receivers without prejudice to the rights of the Mills if so advised, to establish their claim in a regular suit. When that application was made there was violent opposition on behalf of the Mills on behalf of which it was stated that the receivers had made considerable secret profits and that all these amounts have not been accounted for by them. The High Court which granted the order of discharge refers to the starting of criminal proceedings against the receivers in respect of their alleged criminal acts and left it to the Mills to seek their remedy by appropriate proceedings against the receivers. There seems to have been considerable feeling against the receivers that they were not discharging their duties honestly but were guilty of gross fraud. This culminated in the starting of the prosecution of the receivers and the order of acquittal made by the Magistrate after the trial.

10-11. Corning now to the evidence called at the trial it may be stated at the outset that there is nothing in the evidence to incriminate the second and third accused. The main witness who has spoken about the incidents that led to the starting of the prosecution is P.W. 1. According to his evidence the second accused was not present at any of the discussions which he had with the first accused in his house and there is no evidence to show that the second accused knew about any criminal act alleged to have been dons by the first accused. It was the first accused who was playing the dominant role he being the receiver Invested with the power of allotting quota, and fixing the price. The second accused was assigned comparatively lighter responsibility being mainly in charge of routine work. With regard to the third accused who is a nephew of the first accused the only evidence is that he happened to be present when P.W. 1 took Rs. 9,000/- to the house of the first accused for paying him the same. It was the third accused who according to the witness received it and counted the amount to verify whether the correct amount was brought. There is also the evidence of a merchant in Cochin who approached the third accused with regard to his own business when the third accused assured him that it will be possible for him to intervene and make the first accused show concessions to him. Evidence of this kind which has been called at the trial does not bring the guilt home to the third accused although there is considerable suspicion that he was taking an unhealthy interest in the nefarious activities of his uncle. But that by itself will not be sufficient to find him guilty of the charge of abetment of the offence by his uncle the first accused. We therefore hold that in view of the evidence, there is no reason to Interfere with the finding of acquittal of the Court below so far as the second and third accused are concerned. The appeal as against them must therefore be dismissed.

12. The main contention of the learned Counsel for the first accused-respondent is that according to the version originally given by P.W. 1 the extra payment which he is alleged to have made over and above the sale price of the 100 bales of cloth allotted to him was in the nature of illegal gratification to induce the first accused to make an allotment of 100 bales in his favour. The version given by P.W. 1 is that he paid Rs. 9000/- in cash when this agreement was concluded and that subsequently he executed Ext. C the promissory note for Rs. 15,000/- and got back Rs. 900/- in cash from the first accused. Altogether he was to pay over and above the actual sale price of the bales allotted to him Rs. 23,100/- made up of the cash payment of Rs. 9,000/- and the execution of the promissory note Ext. C. It is argued that If this represents correctly the nature of the payment then the moment the amount was paid & the promissory note passed the offence of receiving illegal gratification was completed. The learned Counsel for the first accused argues that to constitute criminal breach of trust there must first of all be payment of money in an innocent manner followed by subsequent misappropriation. Here the payment was made with the object of propitiating the first accused. It was paid as a bribe. When it was paid, the offence became complete. There cannot be any subsequent misappropriation of the money nor can there be criminal breach of trust in respect of that money which was intended by both the parties to go into the pocket of the first accused. This contention seems to us to be insufficient to meet the case for the prosecution that a breach of trust was committed by the first accused in failing to account for the total amount which he received from P.W. 1 or made him agree to give for the hundred bales of cloth allotted to him. As receivers appointed by the High Court and who were Invested with absolute powers with regard to the quantity of cloth which they were going to allot and the price which they were going to charge for the textile goods manufactured by the Mills accused 1 and 2 had unlimited or arbitrary discretion conferred upon them by the Cochin High Court. In the exercise of that discretion, the first accused demanded 26 per cent. over and above the market price in respect of the first lot of 50 bales allotted to P.W. 1 and 40 per cent, for the second lot of 50 bales allotted to him by the first accused. The receivers, as we have already indicated, were not bound by any gentleman's agreement entered into by the Mill Owners' Association. They were given absolute powers by orders passed by the Chief Justice of the erstwhile Cochin High Court and therefore the first accused would have been well within his rights in demanding this extra payment. He doubt when P.W. 1 made his statement to the Police Officer who was conducting the investigation, he referred to the extra payment and the execution of the promissory note as coming under the category of bribes. In Ms evidence he says that the first accused represented to him that these extra amounts were treated as 'premium'. Whatever might have been the impression created in the mind of P.W. 1 when the extra payment was demanded it is not likely that the first accused would have had the courage to openly demand a bribe. It is more probable that he would have tried to cover the fraud contemplated by him by telling P.W. 1 that he wanted the extra value as 'premium.' If that is the manner in which the extra amount was collected by the first accused and there was nothing in the order of appointment or in the orders clarifying the powers of the receivers passed subsequently by the erstwhile Cochin High Court to prevent them from demanding such an extra amount, then it was incumbent upon the receivers who were standing in a fiduciary relationship to the Court which appointed them and to the Mills of which they were made joint-receivers to enter these extra amounts in their accounts. If they have failed to do so, then they are clearly liable for criminal breach of trust as defined under Section 385 of the Cochin Penal Code corresponding to Section 405 of the Indian Penal Code. The section may be read to clarify the position:

Whoever being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.

If the version of P.W. 1 is believed that the first accused received Rs. 9000/- which is admittedly not accounted for in the receivers' accounts and if P.W. 1's evidence is believed that he was made to execute Ext. C for the balance of the extra value which the first accused charged for the hundred bales of cloth, then it can be said within the meaning of the section that the first accused who was entrusted with the property of the Mills and its products dishonestly used or disposed of that property in violation of the direction of law which prescribed the mode in which such trust was to be discharged by him. He was bound according to the orders made by the High Court of Cochin, to account for the actual price charged by him for the goods manufactured by the Mills although there was no limit fixed to the power of fixing any price he liked for such goods. Similarly, if as alleged on behalf of the prosecution he directed the officers of the Mill to affix seals to bales manufactured in the month of May to indicate that they were manufactured in the previous month of April when the prices were 20 to 25 per cent, lower than the prices prevailing in the market for goods manufactured in the month of May, then he has committed criminal breach of trust because he has acted in violation of the direction prescribing the method in which the trust is to be discharged by him. Any subsequent act done with the intention of recouping the loss cannot save him. There was a legal obligation imposed upon him both by the order of appointment as receiver and by the subsequent directions given by the Cochin High Court to him to conform to certain rules and regulations. He has violated those rules and regulations, because admittedly he has not brought into account the amount of Rs. 9,000/ received from P.W. 1 nor has he admitted that the promissory note Ext. C was executed towards the goods allotted to P.W. 1.

His Lordship discussed the evidence and proceeded.

13-16. Comment is made in the judgment of the Magistrate that the entries found in the account books of P.W. 1 did not appear to be genuine. There is no doubt that P.W. 1 was not very anxious to make regular entries in his account books of transactions which he knew to be shady. If as he believed, the amount was paid by him as illegal gratification to the first accused, then there is criminal liability attaching to him also. This would naturally make him nervous and that is accountable for the absence of any prompt entry in his account book of the extra amount which he had agreed to pay to the 1st accused.

17. This incidentally raises the question of his being an accomplice of the first accused. If the extra amount paid or promised to be paid to the 1st. accused was in the nature of illegal gratification, then P.W. 1 would certainly De an accomplice and the evidence of an accomplice has to be accepted with considerable caution. The Supreme Court had occasion to stress the importance of the rule that the testimony of an accomplice should not be acted upon unless there is corroboration and that a conviction should not be based without such corroboration on the evidence of an accomplice. The Judicial Committee of the Privy Council had dealt with this question in the case reported in Bhunoni Saha v. The King (1949) 2 Mad LJ 194. There the question related to the confession of a co-accused and the view expressed was that it can be used only in support of other evidence and cannot be made the foundation of a conviction. It was also pointed out that although the conviction founded upon the testimony of an accomplice supported only by the confession of co-accused may be justified in law in view of the provisions of Section 157 of the Indian Evidence Act yet the Court should not easily depart from the rule of prudence based on long experience which requires that there must be independent evidence to corroborate the evidence of an accomplice when it will implicate an accused person. We are not losing sight of this important principle when dealing with the evidence of P.W. 1. We are also not forgetting that P.W. 1 stood to gain by avoiding his pronote. In a case like the present, it is not possible to get a number of witnesses to speak to the incident which would amount either to the offence of receiving illegal gratification or the offence of criminal breach of trust under the Penal Code. Therefore the absence of the evidence of other witnesses directly in support of the oral testimony of P.W. 1 cannot be regarded as a circumstance adverse to the prosecution. The only manner in which the evidence of P.W. 1 can be tested is by seeing whether it is consistent with the circumstances and the circumstantial evidence in the case. There is the evidence of the Anchal Master P.W. 10 which if believed would support the fact that as early as possible P.W. 1 put in writing his complaint against the 1st accused with the intention of transmitting that writing to the first accused. We have already commented upon the importance of the promissory note Ext. C which on the face of it seems to betray the guilt *bf the first accused. We have already stated that it is impossible to believe the version of the first accused that he not only allotted 100 bales of cloth in favour of P.W. 1, but actually went out of his way and put money in his pocket to enable him to pay the price of these bales. If he had faith in the solvency of P.W. 1 there was nothing wrong In giving him the bales and taking a voucher that he would pay the price of the bales as and when they were sold. Instead of doing so, his version is that he actually paid cash to P.W. 1 and thus enabled him to pay cash for the goods that were allotted to him. The payment was made not out of his funds but out of moneys said to have been placed with him by P.W. 8 without any voucher. This is too much to be believed in view of the relationship that subsisted between the first accused and P.W. 1 which was not that of intimate friends.

18. With regard to the case for the prosecution that the goods manufactured in May which had a higher market value were stamped with the seal for April to indicate falsely that they were goods manufactured in the month of April, there is the evidence of P.W. 12 Dikshit, who was a Superintendent in the Mills. He has deposed that when the fact was noticed by him he thought it was highly irregular and warned the Weaving Master not to do such a thing. It was represented to him that the seals were affixed to the bundles under the written orders of the receivers. The written order Ex. AM has been produced. It is signed by the first accused. He had not taken the permission of the Court for giving any such orders. The stamping in this manner directly results in a loss to the Mills. This could not be covered by making a subsequent profit for the Mills by affixing the May seal on goods made in April. The case for the prosecution is that it was with the idea of giving P.W. 1 the full quantity of 100 bales allotted to him that this was done and that it would result in a profit to P.W. 1 and a loss to the Mills. There is no doubt that the rates were higher in May than in April. Therefore the April produce would have fetched a lower value than the May produce. The receivers would not have been justified In charging a lower rate for goods that were manufactured in May. There was an argument addressed on behalf of the first accused at the, hearing. His learned Counsel said that if unbleached goods made in May were affixed with the seal for April it would not have resulted in loss to the Mills. This appears to us to be mere quibbling. There cannot be any doubt that the first accused acted in contravention of the direction given to him and of the duty imposed upon him not to do acts which are detrimental to the interests of the Mills.

19. We have carefully gone through the evidence of P.W. 1 and the other witnesses already mentioned. It took a little time to do this because the evidence was all recorded in not clearly legible Malayalam and the whole of the evidence bad to be carefully scrutinised. On going through the evidence we feel that the evidence of P.W. 1 and the other witnesses mentioned by us deserves to be believed in view of the strong circumstantial evidence against the first accused. If this evidence is believed, then there is no doubt that the first accused has committed the offence of criminal breach of trust under Section 389 of the Cochin Penal Code. The appeal from the order of the first accused must, therefore, be allowed and the acquittal of the first accused converted into conviction under Section 389 of the Cochin Penal Code. The sentence of the Court is that the first accused shall undergo rigorous imprisonment for one year and pay a fine of Rs. 1,000/- in default of payment of fine, he shall undergo a. further term of rigorous imprisonment for four months. Cancel bail bond.


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