1. The petitioner herein is original accused No. 1 : and he has filed this criminal revision application against the order of the learned Judicial Magistrate. 1st Class Ganvedi Committing him to the Court of Session. Bulsar District at Navsari to stand his trial for the offence punishable under Section 406 of the Indian Penal Code, The charge which has been framed in, the case against both the accused at the end of the committal proceedings is at Exh. 155 on the record of the case; and accused No. 1 is alleged to have committed two offences each punishable under Section 406 of the Indian Penal Code. The facts leading to this criminal revision application may be briefly stated. At Antalia village in Billimora Taluka a private limited company called Arvind Paper Mills is running a factory. Several workmen of this factory have formed a Co-operative Credit Society which is known as the paper Mills Employees Co-operative Credit Society. Limited Antalia, Billimora (hereinafter referred to as the Society'). The members of the said society are workers and employees of the said Paper Mills. The complainant was one of the members. At the relevant time, that is, in the years 1964-65 and 1965-66 the present petitioner, original accused No. 1, was the Chairman of the said society. Accused No. 2, Bhikhubhai Rambhai Patel was the Secretary and Manager of the said society, Bhikhubhai was working as a paid employee of the society. According to the prosecution case, the society had a regular constitution with bye-laws etc., and during the two years of 1964-65 and 1965-66 two amounts of Rs. 15,375/- and Rs. 18,061/- are alleged to have been embezzled during the respective years. The case commenced on a private complaint by one of the members. Originally all the members of the Managing Committee of the said society were proceeded against, but ultimately, after the report of investigation was received, the learned Magistrate decided to proceed only against accused Nos. 1 and 2 and dismissed the complaint as against the members of the Managing Committee. The learned Magistrate, at the end of the committal proceedings, found that accused No. 2 Bhikhubhai Rambhai Patel had prima facie embezzled an amount of Rs. 11,530/- in the year 1964-65 and a further amount of Rs. 17,584/- in the year 1965-66, In view of that conclusion of the learned Magistrate, it is clear that Bhikhubhai was rightly committed to stand his trial before the Court of Sessions. The learned Magistrate, however, has observed in paragraph 13 of his judgment that as regards accused No. 1 there was no prima facie evidence to show that he had conspired with accused Bhikhubhai to embezzle money and/or to falsify the account books of the society. He also held that there was no prima facie evidence to show that accused No. 1 had actively abetted accused No. 2 Bhikhubhai in embezzling the money or falsifying the account books of the Society. The complainant has alleged that accused No. 1 by getting the audited accounts of the year 1964-65 of the society passed and approved at the Annual General Meeting of its members on 30th September, 1965 by representing them to be true and correct accounts under his own signature, even though he knew them to be false had cheated the members of the society. The learned Magistrate further held that there was nothing in the evidence to show that on 30.9.1965 accused No. 1 was knowing that the audited accounts were false. He, therefore, held that it could not therefore, be said that the accused No. 1 had committed cheating under Section 415 of the Indian Penal Code or under any other Section of the Indian Penal Code. The learned Magistrate then considered that accused No. 1 was admittedly the Chairman of the Managing Committee of the society during the two years in question and under the bye-laws of the society he was bound to carry out certain duties to supervise over and inspect the accounts written by accused No. 2 Bhikhubhai. The learned Magistrate held that accused No. 1 had remained indifferent towards his duties under the constitution of the society and had thus suffered accused No. 2 to commit criminal breach of trust. According to the learned Magistrate, accused No. 1 should have dismissed accused No. 2 Bhikhubhai in the year 1964 when he noticed that accused No. 2 had not written books of accounts of the year 1964-65 even though a period of 4 months had already passed since the commencement of the accounting year. On these materials and these considerations, the learned Magistrate came to the conclusion that accused No. 1 had wilfully suffered accused No. 2 Bhikhubhai to commit criminal breach of trust in respect of the society's moneys in the years 1964-65 and 1965-66 and thereby committed an offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code.
2. With respect to the learned Magistrate, he has overlooked that so far as the words 'wilfully suffers' occurring in Section 405 of the Indian Penal Code are concerned, the legal position is that the word 'wilfully' connotes some intention or knowledge; and having knowledge of a criminal act being committed or embezzlement being carried out allowing that state of affairs to continue. In Om Prakash v. State of U.P. : 1957CriLJ575 the Supreme Court has construed words 'wilfully suffers' occurring in Section 405 of the Indian Penal Code and has held that there is an essential difference between 'allowing' a person and 'wilfully suffering' a person to do a certain thing. It may be that the word 'allow' can mean allowing by negligence or without any volition on the part of the offender. It may also mean that there is some kind of positive and tacit acquiescence necessary to bring home the offence. 'Wilfully' presupposes a conscious action while even by negligence one can allow another to do a thing. In view of this decision of the Supreme Court it is clear that the mere fact that accused No. 1 was negligent in performing his duties under the bye-laws or the mere fact that because of his negligence accused No. 2 could embezzle moneys, is no ground for holding that accused No. 1 had wilfully suffered accused No. 2 to commit the embezzlement. In order to bring home the charge of the offence punishable under Section 406 of the Indian Penal Code on the ground that the accused concerned had wilfully suffered another person to commit criminal embezzlement, it must be established that the accused concerned with deliberate intention and with a conscious action allowed that particular act to be done by the hand of another person.
3. In Surendra Nath v. The State : AIR1958Ori194 previous English as well as Indian decisions were considered, and the position was summarized as follows:
Mere acts of negligence on the part of the Treasury Officer in complying with the relevant rules of the Treasury Code would not suffice to hold that he 'wilfully suffered' the embezzlement of the money by the Treasurer. There must be further evidence to show that he intentionally omitted to comply with the rules or else that having been previously warned that such non-compliance would enable the Treasurer to embezzle the money he deliberately connived at such embezzlement by shutting his eyes to what was going on.
I respectfully agree with this statement of the legal position and hence in the instant case, there must be evidence to show that accused No. 1 by a conscious action of his and with the knowledge that embezzlement was taking place, allowed accused No. 2 to commit the embezzlement or shut his eves 'to the embezzlement committed by accused No. 2. The learned Magistrate in his judgment has rightly not relied upon the explanation given by accused No. 2 in his statement before the Court, because that explanation cannot take the place of evidence recorded against accused No. 1. Moreover accused No. 2 at the time of his statement, produced and relied upon a copy of the letter dated November 30, 1965 purporting to have been written by him to accused No. 1 and that copy is marked 149/2. Now, the learned Magistrate finds that there was no evidence on the record to show that the original of 149/2 was ever received by accused No. 1. According to accused No. 1 no letter of which the letter marked 149/2 purports to be a copy had ever been sent or was received by accused No. 1; and therefore, he rightly held that it cannot be considered to be legal evidence against accused No. 1. Barring the statement of accused No. 2 at the time of his examination under Section 342 of the Criminal Procedure Code and barring this copy marked 149/2, there was nothing to show that accused No. 1 had with a conscious action on his part, permitted accused No. 2 to commit embezzlement; and the learned Magistrate has rightly not considered these two items as evidence against accused No. 1.
4. Under these circumstances, the learned Magistrate, with respect to him, was in error when he came to the conclusion that accused No. 1 had wilfully suffered accused No. 2 to commit embezzlement. The prosecution case even if it were to be taken at its highest, does not show that there was any conscious action on the part of accused No. 1 in permitting accused No. 2 to commit embezzlement. The result, therefore, is that the learned Magistrate was in error when he committed accused No. 1 to stand his trial for the offence punishable under Section 406 of the Indian Penal Code.
5. In the result, therefore, this criminal revision application is allowed; and the order of commitment so far as accused No. 1 is concerned is quashed and set aside. The rule is made absolute. The trial as against accused No. 2 will proceed in accordance with law in virtue of the committal order as against accused No. 2 passed by the learned Magistrate.