1. I am afraid, that under the circumstances of this revision proceedings, whatever the suspicions of the court might be with regard to the culpability of the two revision petitioners, both will have to be acquitted, as the criminal jurisprudence is clear that convictions cannot be based upon mere suspicion or conjecture.
2. Very briefly stated, the facts are, that the two revision petitioners and one watchman were the sole personnel in charge of the Kaveripatnam Co-optex retail depot. The procedure seems to be that this depot places indents for the goods required with the Marketing Officer of the region, who duly supplies the goods for sales to customers at the depot. The two revision petitioners are, respectively, the Assistant Manager of the depot (A.1) and the Assistant Salesman (A.2). One fact is established beyond any possibility of doubt, and that is, when the Marketting officer, Salem (P.W. 1) visited the depot on 11.1.1962 and made an approximate check, he detected a shortfall in the stock of goods to a very appreciable. extent, which was subsequently confirmed by the detailed scrutiny made by the Senior Inspector (P.W. 3) assisted by P.W. 7. In brief, sometime prior to his visit, it is not easy to say when, some goods stocked at this depot had disappeared outright; the charge specifies the value of those goods as Rs. 4482-47 p.
3. There can be no doubt whatever that, as a matter of civil liability, persons entrusted with the stock in the depot in their official capacities, might properly be held liable for the value of stock which had disappeared, owing to carelessness or negligence or malpractice of any kind on the part of any of this officers. But criminal liability is a totally different matter, and the ingredients of the offence punishable under Section 409 I.P.C., have been laid down in the Penal Code itself, and in innumerable decisions which need not be recapitulated herein. Not only must there be an initial entrustment of the goods, but there should be a subsequent dishonest conversion to the use of the concerned accused viz., breach of the trust that alone constitutes criminal breach of trust. In the present ease, the courts have not been inclined to place much reliance upon a receipt for taking over charge of the stock etc., signed by the Assistant Saleman (A.2) though such a receipt does exist for all that we know, the defence of A. 2 might be justified that, at the instance of A.1 who was his official superior, he merely signed this form without noting the purpose for which it was required, when A.1 went on casual leave, at the request of the superior officer.
With regard to A. 1, the suspicions are far stronger whether he acted individually, or in collusion with A.2. The fact remains, that A.1 absented himself rather suddenly from the depot, prior to the visit of the Marketing Officer (P.W. 1) after first applying for casual leave and ineffectually applying for extension of that leave.
4. But I must repeat that suspicion is not proof. It may be that A.1 misappropriated these goods and dishonestly converted them to his own use, in breach of trust. He might exclusively have done so, and A. 2 may be totally innocent;. Per contra A. 2 may be the guilty person, and A. 1 might be innocent; it is even conceivable that the paid watchman or guard might have been the guilty party, during some temporary absence of both the officers from this depot. The essential point to note here is that the police investigation in this case has been perfunctory in the extreme, and not at all characterised by a realization of what the exigencies of the reported situation required. I can find no hint in the record that either the investigating officer or his superior officer, was alive to the responsibilities of the police, when a large stock of goods was reported to have disappeared from a public depot, run in the interests of the citizens. It was the duty of the police officers to have made every effort to detect how the goods were disposed of, by whom and to what parties; again, as the goods were valuable and the total value was appreciable, as far as possible, an attempt should have been made to trace and recover the goods.
Nothing seems to have been done, and we have here only the bare fact of the disappearance of certain of goods, with not an iota of evidence about the handling of those goods by either of the revision petitioners or their disposal by either of them, or even to show that only one or the other of the revision petitioners could have misappropriated and removed the goods, and not the watchman or some intruder. Criminal liability has to be strictly proved, and I must repeat that it cannot be based upon a conjecture on probabilities, however reasonable that conjecture might be. Hence, I acquit both the revision petitioners upon the benefit of doubt which I have set forth above, and direct that their bail bonds be cancelled.