1. These appeals are brought by Sailendra Nath Mitter and Mathuradas Purshottamdas Amin against their convictions by the Chief Presidency Magistrate of Calcutta of offences-
(a) Conspiracy to commit theft under Section 120/381, Penal Code; (b) Against Amin of theft under Section 381, Penal Code, on or about 26th May 1939, and against Mitter for abetment of the said theft under Section 109/381, Penal Code; (c) Against Amin of theft under Section 381, Penal Code, on or about 26th May 1939, and against Mitter of abetment of theft under Section 109/381, Penal Code; (d) Against Amin of theft under Section 381 on or about 30th May 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code; (e) Against Amin of theft under Section 381 on or about 31st May 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code; (f) Against Amin of theft under Section 381, Penal Code, on 31st May 1939, and against Mitter of abetment of the said theft on the said date under Section 109/381, Penal Code; (g) Against Amin of theft under Section 381 on or about 31st May 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code; (h) Against Amin of theft under Section 381, Penal Code, on or about 1st June 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code; (i) Against Amin of theft under Section 381, Penal Code, on or about 2nd June 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code; (j) Against Amin of theft under Section 381, Penal Code, on or about 2nd June 1939, and against Mitter of abetment of the said theft under Section 109/381, Penal Code.
2. The Magistrate had preferred further charges but acquitted the two accused of the same, namely (1) criminal breach of trust under Section 408, Penal Code, in respect of a sum of money of Rs. 67,804-2-0, on or about 22nd May 1939, against Amin and a corresponding charge against Mitter of abetment of the alleged criminal breach of trust and (2)1 criminal breach of trust against Amin on or about 13th June 1939, in respect of a sum of Rs. 1,22,935-12-0 and a corresponding charge of abetment against Mitter in respect of the alleged breach of trust. Amin was at all material times the agent or branch manager of the Bank of Baroda, Ltd., at Calcutta. The Bank of Baroda, Ltd., is registered as a company in the State of Baroda where its head office is: the chief office, however, is at Bombay. The Calcutta branch was established somewhere about 1937. Amin held this appointment with a power of attorney from the bank to which reference will be made later.
3. The appellant Mitter is a member of a well-known Calcutta family and had at certain times considerable means. Mitter carried on business with his brother as a stock-broker in Calcutta. His brother died shortly after the happenings of the matters complained of. The brother seems to have played no part in them. In addition to his stock-broking business, Mitter was interested in various business concerns, e. g., the sale of motorcars, manufacture of bicycles and, in particular, a certain cotton mill known as the Basanti Cotton Mills in which his family had a predominant holding of the sharRs. Further Mitters, Ltd., of which Mitter was a member was the managing agent of the Basanti Cotton Mills. Mitter had personal accounts with many banks, e. g., the Central Bank of India, the Punjab National Bank, Ltd., the Netherlands Trading Society as well as the Bank of Baroda, Ltd. In addition Mitter used and operated upon the account of one D. C. Ghose, a brother-in-law of his, which the latter had with the Bank of Baroda at Calcutta. Mitter at all material times had guaranteed Ghose's account up to an extent of two lacs of rupeRs. Further Mitter appears to have been associated closely in business with one S.C. Bose who was also a stock-broker. In the charges originally before the Magistrate both D. C. Ghose and S.C. Bose were accused along with Mitter and Amin but Ghose and Bose were discharged and neither was called to give evidence by either side.
4. The Bank of Baroda was in 1939 relatively a new comer to Calcutta and naturally anxious to get business and Mitter was, through his various activities mentioned, a busy man with corresponding operations on his bank account. On 23rd April 1938, Mitter applied for banking facilities with the Bank of Baroda at Calcutta. His application was approved up to a limit of Rs. 25,000 over-draft with securities offered. In Ex. 198 wherein Amin, as bank manager ap- proved of the application, it is stated under the head 'delivery order' 'Government securitiRs.' A margin of 30 per cent, was stipulated for and the rate of interest was 1 per cent, above the bank rate with a minimum of per cent. On the same day, 23rd April 1938, Mitter signed a letter of pledge addressed to the Bank of Baroda, Calcutta. It was the usual printed letter of pledge taken by banks, the relevant parts of which are as follows:
I agree that...securities for property of whatever description, other than immovable property, which I may from time to time place with the Bank of Baroda Ltd., and all property, moneys and advantages comprised in, covered or represented by and derivable under or by virtue of such documents or securities, are hereby pledged and charged to the intent that the same shall be a security for the payment to the bank on demand in Calcutta of all moneys which now are, or which at any time or times hereafter may become due from me to the bank, whether alone or in co-partnership with any person.
5. The document goes on-
And I agree to repay to the bank on demand in Calcutta all such moneys as and when required by the bank. And I agree and declare that the bank may at any time or times after default by me in such payment and without and notice to me sell the said property, moneys and advantages and securities and out of the proceeds of sale of the said securities or the said goods as the case may be retain all moneys owing by me in my said account current with the bank. And I agree to execute on demand by the bank such further documents as may be required by the bank to vest all such goods, doouments of title to goods and securities in the bank and to ren- der the same readily saleable or transferable by the bank at any time.
6. An account was duly opened as and from that date and Mitter was at times in credit and at times overdrawn. Up to the end of March 1939, with the exception of one or two short periods or parts of a day the account was not seriously overdrawn. As from 1st April 1939, the account became very seriously overdrawn. On 1st April 1939, the debit was Rs. 1,26,480; on 5th April 1939, it was in debit Rs. 1,17,722; on 13th April 1939, it was in credit Rs. 1868; on 1st May 1939, it was in debit Rs. 1,08,292; on 12 May, it was Rs. 67,954 in debit; on 13th May it was Rs. 1,23,927 in debit; on 29th May it was Rs. 1,82,444 in debit; on 30th May it was in debit Rs. 2,45,895; on 3lst May it was Rs. 3,34,135 in debit; on 1st June 1939, it was Rs. 3,91,138; on 2nd June it was Bupees 4,98,379 in debit; on 6th June it was Bupees 5,05,478 in debit; on 9th June it was in debit Rs. 5,14,155, on 9th June it became reduced, according to the bank's books to Rs. 2,54,155. The subsequent history of the account will be dealt with later.
7. A document has been put in dated 2nd June (ex. 202) signed by Amin in which Mitter was said to be the applicant for an overdraft h of Rs. 5,60,000 against Government securities with a margin of 10 per cent, and a rate of interest at 1/2 per cent, above the Reserve Bank rate with a minimum of 3 1/2 per cent. On the same day, 2nd June 1939, Mitter signed a form of pledge similar to that signed on 23rd April 1938.
8. It is clear that at about the beginning of April 1939, Mitter contemplated borrowing heavily from the bank, as in fact he did. On 6th April 1939, Amin signed and forwarded to the Head Office a report on the financial standing of the two Mitter brothers (Ex. 294). In that report he stated that their credit was respectable, that they were borrowing from the market, that they were overtrading and doing speculative business, that they had properties of various kinds, that their net worth was Rs. 3 to 5 lacs, that they inherited individually along with three other brothers about Rs. 8 lacs in cash, investments and landed properties, that only a small portion of their capital was invested in their business, and that they finance their business mostly by borrowing. Then there are these words:
They are considered respectable, and although reported short of ready cash enjoy fair credit in the market. Considered good for ordinary but secured business engagements. Means reported to be fairly good to good including landed property.
9. Mention has been made previously of Mitter's interest in a bicycle manufacturing concern. The company was formed to manufacture bicycles in India at Patna. Mitter was one of the promoters and under an agreement (Ex. 307) known in this case as the Darbhanga Agreement, Mitter was to receive Rs. 72,000 and at the same time leave in the concern in the form of shares Rs. 50,000. The balance of the money Rs. 22,000 was to be paid to Mitter under the agreement and Mitter was relieved of all responsibility for payment for certain machinery ordered from Europe and the Maharajadhiraj of Darbhanga guaranteed payment of this amount. There is no evidence that any of the benefits of this agreement or the money which Mitter received under it or the shares which he was due to take up under it were ever received by the bank. It has been cited in the case as evidence that Mitter was a man of means and credit. Shortly after the matters complained of which will be dealt with later Amin absented himself from his office at the bank and ultimately the drawers in that office were opened in the presence of a Notary Public. In one of the drawers was found a letter dated 1st April 1939, by Mitter to Amin in which Mitter stated:.I am enclosing herewith a list of my assets. Apart from my family connexion and the bank reference about which I mentioned to you the fact that we possess practically the two-third share of the Basanti Cotton Mills Ltd., of which we are the Managing Agents will I hope satisfy you to enable me to have temporary accommodation from time to time to the extent of Rs. 6 lacs in the shape of cheques which you will please mark 'good for payment' drawn by myself or by myself in the joint account. Further as desired by you in consideration of your marking cheque 'good for payment' for all or any of the above-named drawers in Order to enable me to raise the money I am enclosing herewith a promissory note for the above sum of Rs. 6 lacs as additional security for your bank.
10. On the back of the letter there is a note -'On enquiries bank reports satisfactory, arrangements to be proposed to Local Committee.' A list of properties was given com- prising nine buildings in Calcutta of a total value of Rs. 22,55,000 together with 20,000 preference shares and 50,000 ordinary shares in the Basanti Cotton Mills. That list of properties was signed by the two Mitter brothers. The deeds of mortgage and a conveyance relating to those properties have been produced in Court and it appears that on 1st April 1939, the immovable properties referred to were mortgaged to the Roys of Hatkhola for a sum of Rs. 9,25,000 and that on 26th April 1939, the same properties were sold as from 1st April 1939, to the Roys of Hatkhola for Rs. 12,15,000. It would appear therefore that the value of the properties apart from the shares of the two Mitters was about rs. 3 to 4 lacs. The prosecution have thrown doubt upon the letter of 1st April 1939 alleging that it was writ-ten by Mitter to Amin at the latter's request when Mitter, as the figures quoted before show, had induced Amin to give him an overdraft of several lacs. Whatever the value of the Darbhanga agreement, the immovable properties of the Mitters and the shares in the Basanti Cotton Mills, none of them was ever pledged with the bank in respect of the overdrafts. P. W. 57 S.C. Gupta, in his evidence stated that he prepared and sent to the head office of the bank every month a statement of all overdraft accounts and also that he sent every week to the head office a statement of all irregular accounts: by irregular accounts he apparently meant those where the over-drafts exceeded the value of the securities deposited against them.
11. On 20th April 1939, Mr. Sonalkar, the General Manager at Baroda drew Amin's attention by a letter (Ex. b/b/b/b) to Mitter's overdraft to the extent of Rs. 87,447 and to the fact that this overdraft had been allowed against Nath Bank's pay Order for Rs. 70,000 and stated:
We must say that looking to the standing of Nath Bank you took too great a risk in allowing the customer to draw against their pay slip such a large amount as Rs. 70,000 and await your explanation for granting a facility so far in excess of your powers.
12. Amin replied to this by the one of 27th April (Ex. c/c/c/c) to which the General Manager of the bank at Baroda replied by another letter dated 12th May 1939 (Exhibit d/d/d/d) as follows:
We have received your letter of the 27th ultimo and are not entirely satisfied with the explanation given therein. You have evidently been in the habit of granting exceptional facilities to some of your clients and whilst we appreciate the necessity of your obliging your clients in exceptional circumstances where you are sure the bank is running no risk, we emphasise the necessity of your exercising more caution lest the bank should suffer.
13. In reply to that letter Amin on 15th May 1939, wrote as follows to Mathew D'Souza who acted at Baroda in the absence of Mr. Groundwater, the General Manager (Ex. o/o):
Discretion exercised by me does not meet with the approval of head office, nor am I definitely told to discontinue such practicRs. I am completely at a loss to know what exactly is wanted of me. Only clients of standing and repute are allowed certain facilitiRs. This also is done in varying degreRs. But whatever is done by me is to be treated as exceptional. The only course left open is to refuse so-called facilities to those who are having them now, and if thereby the business is lost I am to prefer that.
14. It is clear, therefore, that by the middle of May when Mitter's overdraft was over a lac of rupees the bank warned Amin to be careful and not to allow exceptional facilities to Mitter. It will be convenient here to deal with the system of recording lodgment of securities pledged against overdrafts. There was in the bank a department specially set up to deal with the recording and custody of securities deposited against overdrafts. In May and June of 1939, there were two joint custodians of securitiRs. Mr. Trilokekar was the officer-in-charge of the securities department and the senior of the two joint custodians, and Mr. Gobindyo was the other custodian. They have a special place in the bank and they sit at tables close to each other. There is a safe close by for keeping securities which are in their joint custody. There is a strong room adjoining the securities department. When shares and securities are received from customers, they are held in the joint custody of the two custodians and kept in the safe in the securities department. When a customer lodges securities in respect of his overdraft he fills in in duplicate the particulars of the securities he is depositing on the lodgment memo. He takes the latter to the second custodian who signs the counterfoil and puts a rubber stamp with date, etc., on the counterfoil which is called the lodgment memo. Then the custodian tears off the memo portion and retains it and gives back the book to the customer so that both the customer and the bank has a list of the shares that are deposited. The custodian then enters the particulars of the deposited securities in the Security Inward Register giving them a serial number which he writes on the memo retained by him. The custodian then sends the register, the memo and the securities themselves to the security clerk to fill up the other books. The clerk then makes entries in the lodgment register (overdrafts). The entries from the lodgment register are posted in the security register the next day. There is prepared for each customer who has an overdraft account what is called a valuation sheet which shows the customer's deposited securities, the market price of each kind of share, and what is called, the 'advance value' of the securities. The advance value is determined by the prevailing market rates less the-marginal percentage. The valuation sheet is prepared at the same time as the entry in the Lodgment Register by a clerk who is in charge of the valuation sheets. The valuation sheets are kept up to date each day so that when a cheque is presented it is possible to find out from the valuation sheet how much can be withdrawn. The ledger keeper has no authority to pass a cheque if he finds that it involves an overdraft. If an overdraft has been arranged and the debit is within the advance value and the limit of overdraft, the bank accountant can pass the cheque. If the debit is beyond the advance value the cheque is put before the manager. The ledger keeper enters the cheque presented in the sanction book which contains several columns. One shows the date, the second the name of the customer, the third the amount of the cheque presented, the fourth the amount of the debit balance if the cheque is paid; the fifth is for the initials of the accountant or bank manager who passes it, and the sixth column which is headed 'Remarks' is used to state what the advance value of that particular customer is on that date and how the decision to pass the cheque presented has been arrived at. When it is desired to withdraw the securities deposited the customer fills in the withdrawal memo with the particulars of the scrip in hands it to the security clerk who verifies the position of the account. The withdrawal memo is then sent to the Current Account Department for the customer's signature on it to be verified and for the statement of the balance of the account. Appropriate particulars are then entered in the Withdrawal Register. Then the valuation sheet is brought up to date at once and the securities if released handed over. The Security Ledger under the heading of S. N. Mitter shows that in the earlier part of May, certain securities had been deposited against overdrafts, but all those securities had been returned to Mitter by 23rd May. On that day therefore there was an overdraft of Rs. 1,46,211-2-9 pies against no security. On 25th May the overdraft had declined to rupees 1,12,065 against which there was no security. On 26th May a total amount of rupees one lac in Government Promissory notes of 3 1/2 per cent, was deposited as security. Of these the following Government Promissory Notes were lodged in the morning
(1)Rs. 25,000 3 % G. P. Notes-1842-43No. CA003385(2)Rs. 25,000 3 % G. P. Notes-1865No. CA004051(3) Rs. 25,000 3 % G. P. Notes-1900-01 No. CA003334
15. In the afternoon of the same day, 26th May 1939, at about 2-30 P. M. Mitter made a lodgment of another Government Promissory Note for Rs. 25,000-1842-43 NO. CA001013. On this occasion, Amin again sent for Trilokekar into his room where he found Mitter. Amin handed the note over with a lodgment memo in Amin's handwriting and gave the same instructions as in the morning. Trilokekar took the Government Promissory Note and the memo to the Securities Department and caused a clerk to make an entry of the note in the Inward Register. The entry had written opposite to it 'Notes held by manager' and Amin initialled it in blue pencil. Some time later, Trilokekar took the note back to Amin's room where Mitter still was and handed it over to Amin. The particulars of this last note were duly entered in the Security Inward Register, the Overdraft Register and the Lodgment Register. The amount of all these notes to the total face value of rupees one lac was duly brought on to the valuation sheets as would appear from the sanction book (p. 43). On the same day 26th May 1939, Amin himself sanctioned the payment of two cheques (1) for Rs. 67,829 and (2) for Rs. 65,825 which brought the overdraft in Mitter's account up to Rs. 2,40,868. In the 'Remarks' column of the sanction book Amin, whose initials appear in the Initials column, took the four notes of the total face value of rupees one lac paid in that day into account as cover in the following way. Rupees one lac at market value of Rs. 96 less 10 per cent.=Rs. 86,400. This sum of Rs. 86,400 is the advance value appearing in sanction book when the two cheques referred to were passed. Thus Amin was giving the overdraft on a security of four G. P. Notes registered as pledged with the bank that day. No more securities were paid in until 30th May. On 29th May it appears from the sanction book 'Remarks' column that Rs. 86,400 was still the advance value for Mitter.
16. From the books of the bank it would appear, therefore, that on 26th, 27th, 28th and 29th May the bank held the securities of Mitter to the value of rupees one lac or thereabouts against the overdraft that Amin granted and was continuing to grant to Mitter. Trilokekar and Gobindyo, the custodians of securities with whom the securities should have been deposited were naturally suspicious. Actually they had solid grounds for their suspicion because those Government Promissory Notes left the bank the same day and were never thereafter available to the bank as pledge against Mitter's overdraft.
17. The story of what happened to those Government Promissory Notes on that day is as follows: P. W. 55, M. P. Agarwalla, a stockbroker stated in his evidence that on 26th May, he received the two G. P. Notes-C. A. 003385 and C. A. 001013 each for Rs. 25,000 from the firm of Loyalka. On the same day he received two other notes for Rs. 25,000, c. A. 004051 and c. A. 003334 from another stock-broker Jaganprosad. He sold these four notes to S.C. Bose (mentioned above) who was also a stock-broker and delivered all four notes to S.C. Bose that day. S.C. Bose returned all four notes to Agarwalla the same day, 26th May, between 4 P. M. and 5 P. M. and asked Agarwalla to sell them off. Agarwalla returned the notes to the persons from whom he had received them earlier in the day. Bose did not pay Agarwalla for the notes; so Agarwalla billed Bose for the difference in price and for interest on them the same day. Agarwalla's story is borne out by P. W. 35, Gopikissen Rajgoria, a clerk employed by Loyalka and P. W. 29 Jayaram Das, a clerk employed by Jaganprosad. The two notes, G.A. 003385 and G. A. 001013 which Agarwalla had got from Loyalka and sent back to him on 26th May, were returned by Loyalka to Agarwalla on 30th May, and sold by Agarwalla to other purchasers. The other two notes C. A. 003334, and C. A. 004051 were re-sold by Agarwalla on 29th May, to Shew Bhagawan and Sons, Stock-brokers and delivered to them the same day. It is clear therefore that after being deposited, the four notes were returned by Amin to Mitter who returned them whence he got them. It does not appear that Mitter was ever the owner of those notes and yet according to the Securities Ledger those G. P. Notes of the face value of rupees one lac were deposited with the bank on Mitter's over-draft and not withdrawn until 9th June. (After describing the lodgment of other securities (G. P. Notes) by Mitter with the bank, the return thereof by Amin to Mitter and the pledging of same by Mitter with other banks their Lordships proceeded.) The Security Ledger of the Bank of Baroda does not show that any of the G. P. Notes deposited there by Mitter from 26th May onwards were returned to Mitter before 9th June. Trilokekar stated in his evidence that on the evening of 30th May, Amin accompanied by the cashier brought him a sealed cover in which he stated were the securities deposited by Mitter on 26th and 30th May. He wished this cover to be kept in the cashier's cabinet in the strong room (which adjoined the Securities Department). This cabinet was under the dual control of the cashier Nagar and Trilokekar. Amin put the sealed cover in the drawer of the cabinet. On the evening of 31st May, Amin again came with Nagar carrying a sealed cover in which he said were the securities deposited by Mitter on that day. This sealed cover was put in the cashier's cabinet in the strong room. On the evening of 1st June, Amin came with another sealed cover which he said contained the notes deposited by Mitter that day. Amin did the same on 2nd June, with two covers-one purporting to contain notes deposited by Mitter that day and the other purporting to contain notes deposited by Ghose that day. Thus on 3rd June, there were five sealed covers purporting to contain G. P. Notes, four being deposited by Mitter and one by D. C. Ghose, in the strong room. On 3rd June, Trilokekar asked Amin how much longer the sealed packets would remain in the strong room and Amin replied that the parties expected the floating of a new loan on 20th June, when they would get higher rates of interest and the notes would be taken out. Evidently, Trilokekar was suspicious because on 3rd June, he wrote a letter (Ex. 186) to the acting manager of the Bank of Baroda at Bombay setting out his suspicions and fears. As a result of that letter a telegram was sent from Bombay office and received in Calcutta in the afternoon of 7th June. The telegram reads as follows:
I confirm my instructions by telephone of to-day that all the sealed packets containing Government Securities held on account of S. N. Mitter and D. C. Bose (?) should be opened in the presence of Joint Custodians of Securities and the Accountant and that all four including yourself should report in writing to me of their contents giving details of securities and the present balance of the two accounts. I also confirm that these two parties should not be allowed any advance against shares or securities and that they should be asked to repay all advances made to them.
There seems to be no reason why Amin should not have acted upon those instructions which came both over the telephone and by telegram at once, i. e., on 7th June. All the parties were in the bank. However, nothing was done on the. 7th. The next day, 8th June, was a holiday. On 9th June, Amin sent for Trilokekar, asked him about his communication to the head office, then showed him the tele- gram mentioned above and said that Mitter would come and pay off his overdrafts and take delivery of his securities. At 4 P. M. the same day Amin sent for Trilokekar and ordered him to bring the sealed covers. Accordingly Trilokekar and the cashier took the five sealed covers from the strong room and handed them over to Amin. Trilokekar then thinking that Mitter would be coming to take delivery of the securities instructed a clerk to prepare the withdrawal slips and make entries in the withdrawal register for Mitter's signature. At about 4-30 p. M. Amin sent for Trilokekar and Gobindyo to his room. D'Souza, the bank's accountant at Calcutta was also there. Amin then told D'Souza, Trilokekar and Gobindyo to go outside with Mitter who was also there and satisfy themselves regarding the contents of the covers. Amin excused himself going with them saying that he had to atttend an important meeting of the Local Bank Advisory Committee and also that he was satisfied about the contents of the covers. Thereupon the three bank employees with Mitter who carried the sealed covers went to the securities department. There Mitter opened two of the covers but did not take out the papers which were inside.
18. Two witnesses, Bhupendra Nath Banerjee, P. W. 56, and Sital Chandra Gupta, P. W. 57, who were standing near the securities department depose that they saw the contents of two of the covers partially pulled out. They say that the contents looked like G.P. Notes. On the other hand, Trilokekar, Gobindyo and D'Souza say that they did not see the con-tents of the covers. Trilokekar was asked by D'Souza to take down the numbers of the G.P. Notes which were supposed to be inside the covers, thereupon Mitter made the excuse that he had an appointment and walked back with the covers to the manager's room. Trilokekar and Gobindyo and D'Souza followed him. Amin came out of the room and Mitter told him that he had to leave at once and that he would return later. Mitter thereupon departed leaving the covers with Amin, but Amin did not open the covers or show the contents to the others. When Mitter went to the securities department with the covers he handed to Trilokekar two cheques drawn by himself on the Central Bank of India one for Rs. 1,15,000 and the other for Rs. 2,14,000. It was then after 4-30 P.M.-,after the usual banking hours. About 6 P. M. Mitter came back to the bank and he and Amin went to the securities department, Amin carrying the five covers. Amin asked Mitter to take out the contents of the covers in the presence of Trilokekar, Gobindyo and D'Souza whereupon Mitter appeared to be offended and said that the securities had been put in the covers in Amin's presence and sealed. Amin then gave back the covers to Mitter without opening them. D'Souza and Trilokekar protested saying that the head office instructions were not being carried out, but Amin replied that with the two cheques just mentioned and a sum of cash which had been paid in, the accounts of Mitter and Ghose showed a credit balance of Rs. 60,000. Thereupon, withdrawal memo (Ex. 188) requesting the delivery to bearer of the securities deposited by Mitter was signed by Mitter and a similar one was prepared in respect of the securities deposited in Ghose's account. There was no authority to withdraw Ghose's securities. D.C. Ghose came the next day and signed the withdrawal memo (Ex. 189) in respect of his withdrawals. The Securities Ledger Overdraft records that the G.P. Notes deposited by Mitter were withdrawn on 9th June.
19. The head office were now thoroughly suspicious of Amin and on 13th June Mr. Jokhakar was sent down from the head office and arrived in Calcutta to act as joint manager with Amin. He wrote a letter to the head office on 13th June 1939 (Ex. 244/1) to which he appended the list of the aforementioned securities which appeared in the bank's register. On 14th, Amin sent the head office a letter which purported to set out all what happened on 9th June, although Trilokekar, Gobindyo and D'Souza did not agree with this account, and in the covering letter to that draft Amin stated 'as the details of the securities have been furnished to you by Mr. Jokha-kar they are not sub-joined to the statement.' Those details are set out in Ex. 244/2 where the details and numbers of the Government Promissory Notes are as recorded in the Securities Inward Register. Evidently at that time Amin was still contending that the covers contained the securities which had been recorded as deposited against the overdrafts. Again on 14th June, Amin wrote a letter to Messrs. Sanderson & Morgans, Attorneys in Calcutta, instructing them to claim payment from Mitter and Ghose in respect of their overdrafts and set out a list of the securities which is the same as those contained in the books of the bank. The letter contains these words: ' Securities held in account of S.N. Mitter were taken delivery of by him on 9th June, by payment to us by cheque....'
20. It is now necessary to go back to 9th June. On 7th June, when Amin received instructions from the head office to open the sealed covers, Mitter's overdraft stood at Rs. 5,14,155. 8th June was a holiday. On 9th June, Mitter was credited in his account with the following items:
By cheque transfer ... Rs. 70,000
By cheque transfer ... Rs. 60,000
By cheque transfer second clearing ... Rs. 130,000
which reduced his overdrafts, according to the books of the bank to Rs. 2,54,155. He then handed to Trilokekar at about 4 o'clock on 9th June, two cheques-one for Rs. 2,14,000 to be credited to the account standing in the name of Mitter and one for Rs. 1,15,000 to be credited to D. C. Ghose's account and was by Amin's directions allowed to take away the covers deposited as securities. The cheque for Rs. 2,14,000 was drawn on the Central Bank and was dishonoured on 10th June, when presented, and again on 12th June when presented. The cheque for Rs. 70,000 was obtained as follows: On 9th June according to the prosecution and on 5th or 6th June according to the defence, a cheque was drawn by D. C. Ghose on his account with the Bank of Baroda in favour of S.C. Bose for Rs. 1,22,935-12-0. It was dated 13th June, that is to say, it was a post-dated cheque, and was marked 'good for payment on 13th June' by Amin on behalf of the Bank of Baroda. This post-dated cheque marked 'good for payment' by the bank on which it was drawn appears to be in the nature of a bill of exchange accepted by Amin on behalf of the Bank of Baroda; the writing on the cheque with the exception of the signature of D.c. Ghose was in Amin's handwriting. The cheque was endorsed by S.C. Bose who took it to one G.D. Bhatter who gave in exchange for it two cheques: (a) for Rs. 70,000 and (b) for Rs. 50,000 in favour of S.C. Bose. Bose endorsed each of these cheques after which Mitter endorsed each and paid them into his account with the Bank of Baroda on 9th June. The cheque for Rs. 50,000 is part of the credit of Rs. 1,30,000.
21. As regards the balance of the credit of Rs. 1,30,000 on 9th June, that is to say, Rupees 80,000; this was the proceeds of a cheque drawn by Bhatter on the Netherlands Trading Society in favour of S.N. Mitter for Rs. 80,000 dated 9th June. The cheque was endorsed by Mitter and paid into his account. Mitter got that cheque from Bhatter as follows: On 9th June, Mitter gave Bhatter a cheque on the Bank of Baroda for rs. 80,000 post-dated to 13th June. Mitter's post-dated (13th June) cheque in favour of Bhatter on the Bank of Baroda was never presented on the due date, as on 13th June Mitter asked Bhatter not to present the cheque and Bhatter refrained from presenting it. In the forenoon of 13th June, Mitter gave Bhatter a cheque drawn on the Imperial Bank of India by the Punjab National Bank in favour of Mitter for Rs. 2,40,000 dated 13th June, the cheque being endorsed by Mitter. In return for his cheque for Rs. 2,40,000 Bhatter gave Mitter: (a) a cheque drawn by him on the American Express Co., dated 13th June, for Rs. 1,60,000 which Mitter paid into D. C. Ghose's account in the Bank of Baroda; and (b) a cheque for Rs. 80,000 dated 13th June, drawn by Bhatter on the Netherlands Trading Society payable to Mitter. Mitter endorsed this cheque and gave it back to Bhatter in exchange for Mitter's post-dated (13th June) cheque drawn by Mitter on the Bank of Baroda in favour of Bhatter. As regards the credit of Rs. 60,000 on 9th June, this was the proceeds of a cheque drawn by Daga on the Bank of Baroda in favour of Mitter dated 9th June, and paid by Mitter into his account. Mitter came to get that cheque in the following way:
22. On 9th June, Mitter gave Daga a post-dated cheque dated 12th June, drawn on the Bank of Baroda for Rs. 92,000 and in return Daga gave Mitter: (a) his cheque for rs. 60,000 (the one just referred to) and (b) two cheques totalling Rs. 31,000 which latter cheques Mitter paid into his account in the Bank of Baroda on 10th June. On 12th June, Daga was asked by Mitter not to present the cheque for Rs. 92,000 and he refrained from presenting it. Daga says that Mitter paid him the amount of the cheque in cash on 12th June, and took back the cheque; but that the next day Mitter borrowed Rs. 95,000 from Daga and gave as security a cheque for Rs. 95,000 drawn on the Bank of Baroda dated 12th June, and certified by Amin to be 'good for payment up to 17th June.' The cheque drawn by the Punjab Bank on the Imperial Bank of India for rs. 2,40,000 was obtained thus: On 13th June, Mitter paid into the Punjab National Bank a post-dated cheque (20th June), drawn by D. C. Ghose on the Bank of Baroda in favour of Mitter for Rs. 2,75,000 and certified by Amin on behalf of the Bank of Baroda 'marked good for payment on 20th June.' In return for this post-dated marked good cheque the Punjab National Bank gave Mitter their cheque on the Imperial Bank, dated 13th June, for Rs. 2,40,000. Thus the three credits in Mitter's account with the Bank of Baroda on 9th June, namely (a) Rs. 70,000 (b) Rs. 60,000 and (c) Rs. 1,80,000 were derived from moneys raised directly or indirectly through postdated cheques drawn by Mitter or Ghose on their account with the Bank of Baroda and certified 'marked good for payment' on due date by Amin on behalf of the Bank of Baroda. It was through Amin's making these post-dated cheques on his bank 'good for payment' that each of those credits was obtained. The allegation of the prosecution is that when Amin received orders from the head office on 7th June to open the covers and reveal their contents he delayed carrying out those instructions until the evening of 9th June in Order to give Mitter a chance to reduce his overdrafts and actually did help Mitter to reduce his overdrafts from Rupees 5,14,155 to Rs. 2,54,155 by marking postdated cheques good for payment.
23. We now come to 10th June. The cheque for Rs. 2,14,000 which Mitter paid in, about & P.M. on 9th June was presented and dishonoured. On 10th June Mitter paid in Rupees 18,000 in cash and also Daga's cheques for Rs. 31,000. 11th June was a Sunday. On 12th June the cheque for Rs. 2,14,000 was again dishonoured. On 13th June Amin offered Jokhakar, who had come down as his co-manager, a pronote (Ex. 227) for Rs. 3,29,000 signed by S. N. Mitter and S.C. Mitter. On instructions from the head office Jokhakar refused to accept it and said he would only take cash.
24. On 14th June cash amounting to Rs. 60,578 was paid into Mitter's account with the Bank of Baroda and cash Rs. 89,422 into D. C. Ghose's account with the Bank of Baroda. This cash was raised in the following way. On 13th June D. C. Ghose drew a cheque on the Bank of Baroda in favour of Mitter for Rs. 1,50,000. Amin, on behalf of the Bank of Baroda, certified it 'good for payment on 19th June 1939.' Mitter paid that cheque into his account with the Netherlands Trading Society and drew a cheque on the Netherlands Trading Society for Rs. 1,50,000 which he paid into his account with the Central Bank of India. He then drew from the Central Bank of India in cash Rs. 1,50,000 and paid it as follows: Rs. 60,579 into Mitter's account with the Bank of Baroda and Rs. 89,422 into Ghose's account with the Bank of Baroda.
25. On 16th June Mitter's account with the Bank of Baroda was credited with a cheque valued Rs. 1,45,000 which he obtained as follows: On 15th June Mitter bought and re-ceived from Santhalia G. P. Notes valued at Bs. 1,75,000 for the price of Rs. 1,82,555. Mitter deposited these notes with the Netherlands Trading Society and gave Santhalia his cheque on the Netherlands Trading Society for Eupees 1,82,555. Mitter then got from the Netherlands Trading Society a pay Order by them in favour of himself for Rs. 1,45,000 which he paid into his account with the Bank of Baroda and obtained the credit above-mentioned. This brought Mitter's account with the Bank of Baroda in credit to a sum of rs. 216-3-6 and Mitter thereupon was allowed to take away the dishonoured cheque for Rs. 2,14,000 which he had paid in, on 9th June. It will be remembered that on 9th June Mitter paid into D. C. Ghose's account a cheque for Rs. 1,15,000 drawn on the Ceneral Bank of India, this cheque was dishonoured. When Mitter on 14th June paid into Ghose's account cash to the extent of Rs. 89,422 that put Ghose's account in credit by the amount of seven annas and three pies, and on 16th June Mitter was allowed to take away his dishonoured cheque for rs. 1,15,000. There was, however, a hitch with the Netherlands Trading Society because the Netherlands Trading Society refused to honour Mitter's cheque for Rs. 1,82,554-6-4 in favour of Santhalia which was to pay for G. P. Notes of the face value of Rs. 1,75,000. Mitter overcame that difficulty as follows: Mitter drew a cheque on the Bank of Baroda in favour of Mitters Ltd., for Rs. 1,82,000. That cheque was dated 12th June and was certified 'marked good for payment on 19th June 1939' by Amin for the Bank of Baroda. Whether this cheque was drawn on 12th June & or not is doubtful but on 19th June Mitter took this marked cheque to the Chartered Bank of India in Calcutta where he had an account; he paid it in and drew a cheque on the Chartered Bank for Rs. 1,82,000 in favour of the Netherlands Trading Society and gave it to the Netherlands Trading Society to put them in funds to meet Santhalia's cheque. The Netherlands Trading Society refused to pay Santhalia's cheque before the Chartered Bank cheque was cleared and sent the cheque to the Chartered Bank who gave the Netherlands Trading Society a debit note on themselves for Rs. 1,82,000. Thereupon, the Netherlands Trading Society on 19th June paid Santhalia's cheque on the strength of the debit note. In due course the cheques which Amin had certified on behalf of the Bank of Baroda 'marked good for payment' on certain dates were presented to the Bank of Baroda and were dealt with as follows:
June 17. (Mitter's Account) holder Daga, value Rs. 95,000 paid by debit in the account:
June 19. (Ghose's Acoount) holder Punjab National Bank Ltd., value Rs. 2,75,000. The Bank of Baroda refused to pay and judgment against them for the full amount was subsequently given by the Calcutta High Court. Appeal pending to the Privy Council:
June 19. (Ghose's Account) holder the Netherlands Trading Society, value Rs. 1,50,000 paid by transfer at the Reserve Bank of India:
August 8. (Mitter's Account) holder Chartered Bank of India, value Rs. 1,82,000 paid.
26. The total loss to the bank of Baroda in these dealings is about Rs. 7,02,000. On 7th June, when Amin received instructions from the head office to give Mitter no more credit, Mitter's indebtedness with the Bank of Baroda was as follows:
June 7. Mitter-Dr. Rs. 5,14,155-6-6
Ghose-Dr. Rs. 1,26,399-1-9
Total Rs. 6,40,494-8-3.
27. On 16th June, when full use had been made of cheques 'marked good for payment' the position in the books was as follows:
June 16. Mitter-Cr. Rs. 216-3-6
Ghose-Cr. Rs. 0-7-3
tal Rs. 216-10-9.
But there were outstanding ' marked good for payment' cheques for Rs. 7,02,000. There is very little or no dispute as to the above facts. The appellants have not been convicted of any offence based upon the improper obtaining of credit from the bank. Amin has been convicted of theft by a servant (Section 381, Penal Code) in respect of the G. P. Notes which he handed back to Mitter on the saveral occasions, and Mitter of abetting him in committing those thefts. They have further been convicted of conspiracy to commit those thefts.
28. The defence which the two accused have set up separately is that they have committed no offence at all; that Amin on his part who was charged with the management of the bank was given certain powers to deal with securities in the course of his management and that what he did he did in the ordinary course of business for the benefit of the bank in Order to attract and keep Mitter who was a valuable customer. Mitter on his part contends that all he has done has been to ask Amin for overdrafts for the purposes of his business and accept whatever benefits Amin was prepared to give him as a good customer. Further, it is pointed out by Amin that there is no evidence anywhere that he has profited in any way by the matters complained of, and by Mitter it is pointed out that there is no evidence against him that he has paid Amin anything to induce him to do what he did. Both the appellants in their written statement allege that the securities were handed back to Mitter by Amin under a pre-arranged agreement and that in the places of the several G. P. Notes deposited, notes of equal value were deposited the same day by Mitter, and were in the sealed covers on 9th June. (After going through the evidence their Lordships rejected the defence story that notes of equal value were substituted in the covers when notes originally placed were returned by Amin to Mitter and proceeded.) It is clear that by reason of Amin returning the securities in question to Mitter the bank lost the whole value of those securities to which they were entitled under the terms of the letters of pledge dated 23rd April 1938, and 2nd June 1939.
29. The next question is-does the return of the securities by Amin to Mitter and Mitter's acceptance of them in each case constitute a criminal offence contrary to the provisions of the Penal Code? It has been contended on behalf of Amin and Mitter that the terms of Amin's employment by the bank entitled him to return the securities in the way he did, and therefore Amin in returning them and Mitter in accepting them were not acting contrary to law. Amin was a servant of the bank-a manager employed in Calcutta and he held a power of attorney granted to him by the bank which gave him authority to do certain things. That power of attorney is dated 15th January 1937, and sets out that Amin in the service of the bank was appointed attorney of the bank in Calcutta with power-(interalia):
Para. 1. To direct, superintend and conduct the business of the Calcutta branch of the bank and to give such orders and directions in regard to the conduct and management of the bank as to the said attorney shall seem expedient:
Para. 2. To take possession of the cash and securities for the time being of the bank and all the books, accounts, deeds, papers and vouchers relating thereto:
Para. 6. To endorse, transfer, sell, hypothecate, pledge and negotiate promissory notes of the Government of India bonds, etc, and all other securities and documents whatsoever standing in the name or held by the bank:
Para. 7. To draw, accept, endorse, negotiate and sell Bills of Exchange and other negotiable instru-ments with or without security:
Para. 11. To make advances and receive deposits on behalf of the bank and to sign any deposit receipts in the name of the bank as the attorney shall be advised or think fit:
Para. 17. To compound or compromise with any person or persons for and in respect of any debt or debts at any time or times hereafter become due, owing, payable or belonging to the bank:
Para 20. To accept and take securities for any debts due or belonging to the bank or which shall hereafter become due or owing and to give or grant any release or discharge or acquittances or receipts for the same or for any interest due thereon that may be necessary or may be required in the premises and to do and perform all such matters and things in regard thereto as shall effectually assure or transfer the property, estate and interest therein of the bank.
Para. 30. And the bank hereby ratify and confirm and promises and agrees at all times to ratify and confirm all and whatsoever the said attorney shall lawfully do or cause to be done in or about the said premises under and by virtue of these presents....
30. It is contended that under those provisions of the power of attorney Amin was entitled to return the securities and that in doing so he committed no crime. It is proper here to consider what the position of Amin in law was. Amin was, as the power of attorney recites, in the service of the bank, that is to say, he was a servant of the bank, and subject to the directions and control of the bank. That that was so is quite clear not only from the power of attorney but from the correspondence between Amin and the Head Office and the Bombay office recited above.
31. In relation to third parties Amin was entitled to be treated as the bank's agent under the power of attorney granted to him. Although the power of attorney authorised Amin to give such orders and directions with regard to the conduct and management of the bank as to him (Amin) should seem expedient, and although he might accept and take securities owing to the bank and give or grant any release, discharge or acquittances for the same and perform all such matters and things in regard thereto as should effectually assure or transfer the property, estate and interest therein of the bank, Amin in exercising those powers was and was bound to act as a servant of the bank. One of his duties as a servant of the bank was to serve the bank honestly and faithfully, and if he did not do so in any considerable degree he could be dismissed by the bank from his employment. If Amin purporting to act under the power of attorney acted so dishonestly and in breach of his duty to his employers that he committed an offence against the criminal law, the power of attorney would not protect Amin from the consequences of his crime since it was an implied and fundamental term of Amin's contract of service with the bank that he should not act in breach of the criminal law. The bank only promised to ratify what Amin should lawfully do or cause to be done under the agreement. Whatever the effect of the power of attorney was upon the rights of the third parties in civil proceedings it could not protect Amin if he broke the provisions of the criminal law.
32. Notwithstanding the wide terms of the power of attorney, Amin was not in the position of being able to do just as he pleased at the Calcutta branch. On 6th April 1939, Amin in his report to the Head Office upon the two Mitter brothers intimated their net worth at rupees three to five lacs and stated that he considered them 'good for ordinary but secured business engagements.' It was his duty to his employers to obtain security for any considerable overdraft; that is plain from the fact that he, on behalf of the bank, had previously caused Mitter to execute the letter of pledge of 23rd April 1938, which contemplated a margin against Government securities of 30 per cent. That he continued to regard it as his duty to get security for Mitter's overdrafts is shown by the fact that on 2nd June 1939, he obtained from Mitter another document of pledge similar to that of 23rd June 1938, which contemplated an overdraft of Rs. 5,60,000 against Government securities with a margin of 10 per cent, and that in May and June 1939, he regarded it as his duty to obtain security is shown by the fact that on 26th May, Government promissory notes valued at rupees one lac were deposited for the specific purpose of forming security against an overdraft which on 25th May had reached Rs. 1,12,063; and that on 30th May, a further security valued at Rs. 25,000 was deposited, and very much larger securities on 30th and 31st May, and 1st and 2nd June, totalling in all (including those securities deposited against D. C. Ghose'3 account) Rs. 7,70,000 were deposited against overdraft.
33. It is impossible for Amin to contend that it was not his duty to get security of a greater value than the overdraft granted. Common knowledge and his own actions with regard to the deposit of the securities mentioned above show that that was his duty and he knew it. It was his duty on behalf of the bank to retain them under the contracts of pledge of April 1938 and June 1939 until such time as a corresponding amount of debt was paid off or that they were sold by the bank to satisfy the overdrafts. In clear breach of his duty to the bank, Amin shortly after each deposit handed the deposited securities back to Mitter. Mitter had no right to those securities; he had given them in pledge under the letters of pledge, and he had deposited them under lodgment memos which apart from the letters of pledge would give the bank a banker's lien upon them for the overdrafts; until the overdrafts were satisfied either pro tanto or completely. Mitter was not entitled to the return of the securities in corresponding part or as a whole. Amin as a bank manager knew that he was returning those securities to Mitter to enable Mitter to have the benefit of them in some way or other. Amin in so handing them back was acting not only in breach of his duty to his employers to act faithfully for and on behalf of his employers, but was acting in breach of the agreement entered into by himself on behalf of the bank and Mitter with regard to those securities on 23rd May 1938, and 2nd June 1939 and was wrongfully depriving the bank-his employers-of their property in those securities, thus causing them wrongful loss. At the same time he was giving those securities with all their benefits to Mitter, who was not entitled to them, and so caused him-Mitter-wrongful gain. In our view the handing back of the securities, at any rate, those deposited on 30th May, and 31st May, and 1st June and 2nd June, by Amin was done dishonestly within the meaning of Section 24, Penal Code, since they cause wrongful loss to the bank and wrongful gain to Mitter. Mitter was a businessman and he knew full well that the Bank of Baroda required securities for his overdrafts in the same way as the Netherlands Trading Society and the Central Bank of India with whom he had accounts at the same time. He knew full well as a businessman that it was Amin's duty to see that the Bank of Baroda got securities pro tanto against the overdraft and he knew each time he took the securities back from the bank after they had been deposited there by him, that Amin in handing them back was acting in breach of his duty to the bank and that he (Mitter) had no legal right to those securities. In short, he knew that he was achieving wrongful gain and that the bank was suffering wrongful loss. In effect, he was acting dishonestly underSection 24, Penal Code.
34. It may well be that neither Amin nor Mitter knew what dishonesty within the meaning ofSection 24, Penal Code, means, but that they both knew they were acting dishonestly in the ordinary sense of the word is clear. To give overdrafts (including D. C. Ghose's account) aggregating Rs. 6,40,000 and to take corresponding securities of the total value of RS. 7,70,000 on the several dates between 26th May and 2nd June and have those securities entered in the books of the bank so that the head management and the directors should think that the proper security had been given, and then time after time on the various occasions when the securities were deposited to hand them back to the person who deposited them and make no entries in the books of the bank to show that they had been handed back and so show a false statement of affairs to the head office of the bank should they enquire, was not the conduct of an honestman. To prevent the true state of affairs appearing, to defer obeying the orders of the head office, to produce the securities alleged to have been deposited within two days, and to avoid being there on the appointed occasion for opening the covers was not the conduct of an honest man. At or about the time when the head office was attempting to discover what the true state of Mitter's position regarding overdrafts and securities was to mark 'good for payment' for subsequent dates cheques which enabled Mitter to raise money elsewhere and so put his account in apparent credit and to create an undisclosed indebtedness of Mitter in respect of the marked good cheques, was in ordinary language, the act of a dishonest man attempting to cover up dishonest acts. Such was the conduct of Amin.
35. As regards Mitter who was a businessman, the giving of securities valued at rupees one lac on 26th May as an ostensible cover for an overdraft knowing that those securities were not his but obtained temporarily from other stockbrokers in the market was a dishonest act. The taking of them back contributed nothing to his dishonesty towards the bank. As regards the lodging of the securities aggregating a further sum of rupees five lacs on the several occasions 30th and 31st May and 1st and 2nd June Mitter knew full well that he was only lodging them so that they, could be entered in the books of the bank as ostensible securities for his own overdrafts and then returned to him. He knew that what he was doing was in the ordinary sense of the word dishonest in the highest degree. Mitter's behaviour on 9th June was that of a man who knew that he had a dishonest transaction to cover up. Mitter's dealing with the marked good cheques from and after 7th June was clearly an attempt to cover up the position which had arisen through the earlier dishonesty of himself and Amin. In our view whether the ordinary or the statutory meaning under the Penal Code is given to the word 'dishonesty' it applies to the conduct of both Mitter and Amin with respect to the return of the securities in question on 30th and 31st May and 1st and 2nd June. With regard to the return of the securities deposited on 26th May it is extremely doubtful whether Mitter had any title to those securities and under those circumstances it is doubtful whether there was any real loss to the bank by their being returned in the way they were, because the circumstances of this case were such that Amin in all probability knew that they were not Mitter's property. It may be that some offence other than theft or crimi- nal breach of trust was committed by Amin and Mitter in respect of the securities deposited on 26th May. But in view of the fact that we propose to convict both the appellants on a number of charges and of the further fact that no other charge in respect of those securities was framed against either of the appellants, we do not consider it necessary to decide the nature of that offence.
36. It has been suggested that the promissory note found in Amin's drawer by the Notary Public a few days after 15th June was a security for the loan. The prosecution has contended that the promissory note was not made on the date which appears on it but was given on some later date late in May or possibly-June by Mitter to Amin so that Amin could, if any difficulty arose, contend that that was a security for the overdraft. The promissory note was never entered in any of the security registers at any time as it ought to have been if it had been given for the purpose which the defence allegs. On the evidence we feel unable to differ from the conclusion at which the Chief Presidency Magistrate arrived with regard to it, namely, that it was not made or given on the date which appears, but given as the prosecution alleges as a make believe security. In any event the promissory note by Mitter added nothing to the obligations Mitter was already under to repay the money he had borrowed.
37. The next question is whether the giving back of the securities on 30th and 3lst May and 1st and 2nd June, constituted the criminal offence of theft underSection 381, Penal Code, or some other criminal offence. There can be no doubt that these securities were each for a time in the possession of the Bank of Baroda and immediately afterwards were each dishonestly disposed of to, Mitter by Amin. Whether the dishonest disposal by Amin of these securities comes within the definition of theft in Section 378, Penal Code, or not, the handing back by Amin to Mitter of those securities undoubtedly comes within the definition of criminal breach of trust in Section 405, Penal Code, which states:
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 to do so, commits 'criminal breach of trust.'
38. The sections dealing with the offence of criminal breach of trust are more appropriate in the present case than the sections dealing with the offence of theft. Amin on behalf of the bank had made the contracts of pledge which Mitter signed on 23rd April 1938 and 2nd June 1939. Pursuant to the first of those contracts Mitter on various dates between 30th May and 2nd June, deposited the securities with the bank as the words of each lodgment memo, show'for deposit against my account.' In each case Amin initialled the lodgment memo, and the bank received the securities and entered them in its books and consequently enlarged its overdrafts accordingly. It was Amin's duty to take those shares for and on behalf of the bank and he took them ostensibly and as far as the bank was concerned for and on its behalf. Those shares were under the terms of the contract of pledge and under the respective lodgment memos to be held as security against the overdrafts. By virtue of his position as manager and agent under the power of attorney, Amin was in possession of those securities for and on behalf of the bank to hold them and to deal with them in accordance with the terms of the contract of pledge made between the bank and Mitter. Amin had by the joint operation of the power of attorney, the contract of pledge and the lodgment of the securities been entrusted with the securities and with dominion over them to hold them as security for the overdrafts. He dishonestly disposed of that property in violation of the contract arising from the pledge and lodgment of the securities by returning them to Mitter knowing full well that each return involved a wrongful gain to Mitter and a wrongful loss to the bank, his employers. In our opinion, on each occasion-30th and 31st May and 1st and 2nd June-when Amin handed back the G. P. Notes to Mitter he committed criminal breach of trust within the meaning of Section 405, Penal Code. That Amin himself is not proved to have made a wrongful gain from his breaches of trust is immaterial as far as the commission of the offence under Section 405, Penal Code, is concerned. In our opinion, the proper offence which the accused Amin should be convicted of is criminal breach of trust in respect of each of the offences charged on 30th and 31st May and 1st and 2nd June. In a similar way, the offence committed by Mitter on each of those occasions was abetment of criminal breach of trust by Amin. The real substantive offences committed in this case were criminal breaches of trust and abetments. We are not satisfied that the charge of conspiracy to commit thefts has been established and as the charge was unnecessary, we set aside the convictions thereon.
39. In the course of his argument for the appellant Mitter, Mr. Carden Noad contended that the trial had been vitiated by misjoinder of charges and that the appellants had been prejudiced by the joinder of a large number of charges in respect of separate and distinct transactions. In our opinion, the various dealings which have been made the subject of the different charges were so intimately con-nected as to form parts of one and same transaction and consequently the joint trial of these charges was perfectly legal in view of the provisions of Sections. 235 and 239, Criminal P.C. We are further of opinion that in view of the nature of these dealings, it was desirable that all the charges should be tried together and that the appellants were in no way prejudiced by the joint trial.
40. There is no dispute that Amin was employed as a clerk or servant of the Bank of Baroda nor that it was in that capacity that he was entrusted with dominion over the G. P. Notes. If, therefore, he was guilty of criminal breach of trust, he was liable to punishment under Section 408, Penal Code. Though no charges were framed under Section 408, Penal Code, or under Sections. 109/408, Penal Code, it is clear from the provisions of Section 287, Criminal P.C. that the learned Chief Presidency Magistrate might have convicted Amin of criminal breach.