Pandrang Row, J.
1. These cases arise out of a defalcation discovered some time in the middle of 1936 in the treasury of the Corporation of Madras after an audit by a firm of chartered accountants. There appears to have been a practice in the corporation treasury, the only purpose of which was to receive collections and to remit them to the Imperial Bank of India, to cash cheques, originally only pay cheques of the corporation officials, later on cheques signed by corporation officials and finally any cheques which the Assistant Revenue Officer thought fit to pass. The case for the prosecution is that this practice which is described by one of the Magistrates as a 'pernicious and obviously illegal practice' was availed of by the appellant in Criminal Appeal No. 271 of 1937, Ananthachari, for the purpose of using corporation money for his own profit by having the use of corporation money from time to time. The modus operandi followed is described in paragraph 5 of the judgment of Mr. Tremenhere and it is unnecessary to repeat what he has said. Further, that paragraph contains a correct statement of the facts elicited in the evidence. In brief, Ananthachari used to issue cheques himself, though sometimes they were issued by his friends, and the cheques were presented for encashment at the corporation treasury either by himself or by his servant, and thereby moneys were obtained from the corporation treasury even when the persons who drew the cheques had no funds to meet those cheques and many of the cheques so cashed were dishonoured subsequently. The case for the prosecution is that this money which was obtained from the corporation treasury was taken for the purpose of Anantachari's private business. The scale on which these operations were carried on was so large that Anantachari was able to cash cheques for one lakh, eleven thousand and odd rupees, and over Rs. 4,500 of corporation money still remains to be made good out of the money so taken out.
2. The prosecution in its eagerness to rope in as many as possible threw a wide net in order to catch almost everyone connected with the defalcation, even though in a remote way. Besides Anantachari, the collection manager Chinnaswami Aiyar, appellant in Criminal Appeal No. 314 of 1937, Thiruvengadathan Chetty, the head cashier, and the Assistant Revenue Officer, S.C. John, were all prosecuted besides the Head Accountant Srinivasa Aiyar. The cases against the last three mentioned individuals resulted in discharge, and only Anantachari and Chinnaswami Aiyar have been convicted, the former by the Third Presidency Magistrate and the latter by the Chief Presidency Magistrate, the cases having been tried by different magistrates because the case against Anantachari was transferred from the Chief Presidency Magistrate's file at the request of Anantachari. The Crown Prosecutor has filed a revision petition in respect of the order of discharge relating to the head cashier; but this petition has not been seriously pressed before me, and the whole argument in these cases has proceeded on the basis that the head cashier personally acted honestly, and that in any case he did not know that the cheques which he cashed were going to be dishonoured or that the cheques were presented for payment with the intention of making wrongful gain for those who cashed the cheques. The revision petition has not been argued and I have no doubt that the order of discharge is right. It is enough therefore to dismiss that petition.
3. I shall first deal with the case against Chinnaswami Aiyar. I may deal with it very briefly because I am of opinion that on the findings of fact recorded by the Chief Presidency Magistrate in his judgment the conviction cannot be supported. The learned Magistrate was of opinion that he had to decide the, following three points, namely:
(1) Whether Chinnaswami Aiyar was aware that Anantachari was systematically issuing private cheques without having the necessary funds in the bank, (2) whether Chinnaswami Aiyar omitted to bring to the notice of the higher authorities the fact that Anantachari's cheques were being dishonoured with the deliberate intention of suppressing any inquiry into the matter, and (3) whether he was aware that Anantachari was utilising the funds of the corporation illicitly for his own private purpose.
4. On these points the findings were all in the affirmative. But these findings do not suffice to support a conviction for abetment of criminal breach of trust. On the charges of conspiracy and falsification of accounts this accused has been acquitted by the learned Magistrate. The only charge in respect of which he was convicted is the charge of abetting criminal breach of trust by a public servant. The mere omission to bring certain facts within the knowledge of the accused to the notice of the higher authorities does not itself constitute abetment as defined in the Indian Penal Code, unless the omission is one which can be said to be an illegal omission, that is, involves a breach of a duty imposed by law, and not merely a breach of a departmental rule of conduct or discipline. It cannot be said that the mere omission to bring to the notice of the higher authorities offences committed by other persons amounts to an abetment of those offences; to take a concrete case, if a clerk does not report to the superior authorities what is known to him about his fellow clerks' taking bribes such omission does not amount to abetment of bribery. It may form the foundation for disciplinary action against him in a departmental way, but it cannot in law amount to abetment of the offence committed by his fellow clerk. It is admitted that Chinnaswami Aiyar had nothing to do with the payment of the cheques in question and it was the payment of the cheques, that is to say, the payment out of the corporation treasury, that is alleged to constitute criminal breach of trust in the present case. The cheques never went to him before they were paid and he had nothing to do with cheques of this kind before they were paid. It is therefore impossible to say that he did anything which facilitated the cashing of the cheques, and there is nothing to show that he instigated any one to make the payment. On this ground alone it is obvious that the conviction of Chinnaswami Aiyar cannot be sustained. It is therefore unnecessary to go further into the matter and consider whether the findings of the learned Magistrate are supported by the evidence or not. On the assumption that the findings are supported by the evidence the conviction cannot stand. It is therefore set aside and the sentence also and this appellant Chinnaswami Aiyar is acquitted. The fine, if paid, will be refunded to him.
5. Then remains the case of the appellant Anantachari. Mr. Grant who appeared for him did not make any serious attempt to question the correctness of the findings of the learned Magistrate. His argument was that the offence disclosed by the evidence might be one of cheating but cannot amount to any abetment of criminal breach of trust. The evidence clearly shows that cheques were being presented either by Anantachari himself or caused by him to be presented for payment. There can be no doubt that he must have got the cheques cashed for his own wrongful gain and known at the time that such payment by the head cashier out of the corporation money would be criminal breach of trust by a public servant. The learned Magistrate is of the opinion that the abetting by Anantachari was by instigation, and after careful consideration I am of opinion that the learned Magistrate's view is right. The presentation of a cheque at the counter necessarily involves a request for payment of cash and this request to the head cashier to pay money on worthless cheques out of public funds must have been known to Anantachari to be criminal breach of trust by public servant; and there can be no doubt that such payment would have amounted to that offence if the head cashier had the same knowledge and intention as Anantachari had. This is therefore a case which is covered by Section 109 of the Indian Penal Code. The law does not require that instigation should be in a particular form or that it should be only in words and may not be by conduct; for instance, a mere gesture indicating 'beat' or a mere offering of money by an arrested person to the constable who arrests him may be regarded as instigation, in the one case to beat and in the other to take a bribe. Whether there was instigation or not is a question to be decided on the facts of each case. The only point of difficulty in the case is that even though there was instigation to make payment out of corporation money the actual reason which led the head cashier to make the payment might have been, as argued by Mr. Grant, not the instigation by Anantachari, but the initials of the Assistant Revenue Officer on the cheques. It is however not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetted was the instigation, and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abetter. It is impossible for any human tribunal to decide exactly how much the instigation actually weighed in the mind of the person abetted when he committed the act or offence. I am therefore of opinion that this argument does not really help the appellant Anantachari. There is no doubt that his conduct amounted to instigation to do an act, namely, to make payment out of the corporation treasury for the wrongful profit of himself and that such payments were actually made by the head cashier honestly or without a dishonest intention. The ingredients of the offence are in my opinion established in this case, and there would be no justification for interference with the conviction. The sentence does not appear to be too severe. His appeal is dismissed. He must surrender to his bail and serve the remainder of the sentence.