Joseph Vithayathil, J.
1. The 1st accused in P.E. No. 13 of 1122 of the Moovattupuzha Stationary First Class Magistrate's Court is the revision petitioner in Criminal Revision Petition No. 145 of 1125 and the 2nd accused in that case is the revision petitioner in Criminal Revision Petition No. 170-1125. The accused are charged with offences punishable under Sections 410 and 469 of the Travancore Penal Code corresponding to Sections 409 and 467 of the Indian Penal Code. The prosecution case is as follows:
2. The 1st accused was a license-holder for the purchase of paddy on behalf of Government from the landholders of Moovattupuzha and Kothamangalam Pakuthies in the year 1121. He was supplied with printed triplicate receipts by the Taluq Office, one of which was to be given to the seller of paddy, one to be sent to the Taluq Office and the other to be kept with the licensee. The 1st accused entrusted the 2nd accused with the work of purchasing paddy and issuing receipts therefor. It is alleged that the 2nd accused got 25 paras of paddy from P.W. 1 on 20.8.1121 and gave Ex. A receipt for the same. But the quantity of paddy shown in the counterfoil sent to the Taluk Office and in the duplicate kept by the licensee was only 4 paras. That was the quantity that was entered in the Nalvazhi Register of the 1st accused also. When this fraud was detected by the Special Proverthicar one Lobba an associate of the accused got Ex. A receipt from P.W. 1 and the 2nd accused corrected the entry therein so that it might tally with the counterfoil. A similar fraud was practised in the purchase of paddy from P.W. 10 also. Exs. D and E are receipts issued to P.W. 10 by the 2nd accused. They do not tally with Exs. J and K counterfoils and Ex. T (3) entry in the Nalvazhi and Ex. U (1) entry in the Ara Register. 11 witnesses were examined for the prosecution and Exs. Al to U2 were filed. Finding that a prima facie case was made out against the accused the learned First Class Magistrate framed a charge against them under Sections 410 and 469, T.P.C. for criminal breach of trust and forgery and committed them to the Sessions Court of Parur to stand their trial for the said offences. The Revision Petitions are filed from this order of commitment.
3. The contention raised by the 1st accused in Criminal Revision Petition No. 145 of 1125 is that no case has been made out against him and that the learned magistrate has gone wrong in committing him to the Sessions Court. I think that this contention is well-founded. There is absolutely no evidence in the case to show that the 1st accused was' a party to the offences of criminal breach of trust and forgery alleged to have been committed by the 2nd accused or that he abetted the commission of these offences. None of the witnesses examined by the prosecution swears to the fact that the 1st accused was present when paddy was purchased by the 2nd accused from P.W. 1 and P.W. 10 and when receipts were given to them by the 2nd accused. It is also not sworn to by any witness that the 1st accused had anything to do with the correction of Ex. A receipt by the 2nd. accused. There is also no evidence in the case to the effect that the 1st accused was aware of the commission of these offences by the 2nd accused or that he had reason to suspect that the 2nd accused committed these offences. The mere fact that the 2nd was employed by the 1st accused for purchasing paddy and issuing receipts cannot make the 1st accused vicariously liable for the offences committed by the 2nd accused in the course of his employment. The 1st accused may be answerable to Government for the misappropriation of paddy committed by the 2nd accused, but that does not mean that he will be criminally liable for the offences committed by his employee. According to the definition of the offence of criminal breach of trust the 1st accused will be criminally liable for the offence of the 2nd accused only if it is proved that he 'wilfully' suffered the 2nd accused to commit the offence. So long as there is nothing to show in this case that the accused wilfully allowed the 2nd accused to commit the offence of dishonestly misappropriating paddy it cannot be said that the 1st accused has committed the offence of criminal breach of trust.
As stated above, there is no evidence in the case to show that the 1st accused either knew or had reason, to suspect that the 2nd accused was dishonestly misappropriating paddy purchased from the land-holders. It has also to be noted that although large quantities of paddy have been purchased from the land-holders by the 1st accused through the 2nd accused the offence is alleged to have been committed only in. respect of a few paras of paddy purchased from P.Ws. 1 and 10. In the circumstances, it is only reasonable to hold that the 1st accused had no occasion to suspect that these two acts of misappropriation would be committed by the 2nd accused, it cannot therefore be said that the 1st accused had wilfully suffered the 2nd accused to dishonestly misappropriate paddy in violation of the terms of the license granted by Government.
4. 'Mens rea' is the essence of the offence of criminal breach of trust. It has been recently held by the Supreme Court in Hariprasada Rao v. The State AIR (38) 1951 SC 204 that when a servant sells petrol to a bogus customer in the absence of coupons in contravention of the Motor Spirit Rationing Order and the master is not present at the time nor has he any knowledge of the supply of petrol by the servant to the bogus customer the master cannot be held to be vicariously liable for the act of the servant, unless the statute either clearly or by necessary implication rules out 'mens rea' as a constituent part of the crime.
5. It was argued by the learned Public Prosecutor that this Court can set aside an order of commitment only on a point of law as provided in Section 215 of the Criminal Procedure Code. But it is well established that when there is no evidence in the case on the basis of which the accused can be convicted on trial it is a point of law and the High Court can set aside the order of commitment. In this case there is absolutely no evidence either oral or documentary to connect the 1st accused with the offences alleged to have been committed by the 2nd accused.
6. I therefore quash the commitment of the 1st accused by the learned First Class Magistrate. Criminal Revision Petition No. 145 of 1125 is thus allowed. The bail bond executed by the 1st accused will be cancelled.
7. With regard to the 2nd accused I find no reason to interfere with the order of commitment by the learned First Class Magistrate. There is prima facie evidence against him with regard to the commission of the offences with which he is charged. Criminal Revision Petition No. 170 of 1135 is therefore dismissed.