1. The appellant before us was convicted by the Officiating Second Presidency Magistrate of Calcutta, on the 12th June, 1923, of an offence under Section 409, I.P.C., that is to say of criminal breach of trust as an Attorney in respect of certain books and furniture left with him as the complainant's Attorney for safe custody when the complainant left for England in the month of May, 1904. The appellant was sentenced to imprisonment until the rising of the Court and to pay a fine of Rs. 500.
2. The books and furniture to which the charge relates were seized in the top flat at 9-3 Middleton Row on the 19th November, 1922, in pursuance of a search directed by the Magistrate and the books and the books and furniture so be returned to the complainant. The Magistrate's judgment and the charge contain references to other furniture also handed over in May 1904, by the complainant to the appellant; this furniture and the books and furniturs comprised in the charge are said to have been in the complainant's house No. 85, Upper Circular Road at the time the complainant left for England and some of the furniture other than that comprised in the charge, is said to have been sold by the complainant, but nothing turns on this, as there is no charge in respect of this and matters with regard thereto may have been adjusted between the complainant and the appellant as there were other monetary transactions between them. 'We are only concerned with the specific books and articles seized at 9/3, Middleton Bow, referred to in the charge which are set out in Exhibits 4 and 5, which were lists attached to the complaint which bears date the 17th November, 1922. The case has unfortunately been encumbered with evidence and references with regard to monetary dealings between the complainant and the appellant extending from 1904 to 1922; we have nothing to do with these matters as they are not included in. the charge and we do not propose to go into them.
3. The charge is somewhat curiously framed. As already stated the petition of ' complaint bears date the 17th November, 1922, by which date the offence complained of must have been complete, yet the charge of criminal breach of trust is placed between the 9th September and the 30th November, 1922, that is to say during a period which ends 13 days after the complaint was laid.
4. Whether the charge is altogether bad on this account is a matter upon which I feel some doubt. In May, 1904, the complainant was about to proceed to England to study medicine. He and the appellant at that time were close friends as evidenced by the correspondence and there is no doubt that the complainant's affairs were considerably involved. Some arrangement was come to at this time between the complainant and the appellant whereby in consideration of the assignment by the appellant to the complainant of certain properties the appellant was to pay the complainant a certain allowance during his way in England and thereafter an allowance at a lesser rate during the rest of his life. Whether the arrangement was a device to protect the complainant's properties from his creditors or not, it is impossible to say upon the materials before us, nor is it necessary for us to decide this in the present case.
5. Prior to his departure for England; namely on the 18th May, 1904 (which is, I think, the correct date and not 1902 as appears in my copy), the appellant purported to sell to one Fredrick Palmer absolutely in consideration of a sum of Rs. 3,000 his household furniture, goods and chattels at 85, Circular Road being everything in the house and compound except horses and carriages which had been already sold. This document is Exhibit 8 and it comprises the books and furniture now in dispute. The consideration purports to have been paid by a cheque on Grindlays drawn by the appellant in favour of the complainant. The Magistrate has accepted the prosecution case that this was merely a paper transaction and that no property passed and he has characterised the defence of the appellant that this was a genuine sale as false. The defence story is, that when Palmer left India in 1909 the appellant and one Hyam took over this and other investments from Palmer and that they ultimately finally settled up this and other transactions by payment of a lump sum to Palmer. Messrs Sanderson & Co. acted for Palmer in this settlement and their books show that a settlement was come to and a lump sum paid but there are no details of the settlement to corroborate the story of the appellant that he paid Palmer for the furniture, books, etc., comprised in Exhibit 8. Since we first heard the matter a cable has been produced purporting to come from Palmer in answer to one sent by the appellant, but it does not carry matters any further. The inference which I should draw from the cable is that Palmer either does not know or does not remember anything of the transaction to which Exhibit 8 relates and the cable sent by the appellant is, to say the least, disingenuous, indeed I am almost inclined to call it dishonest,
6. If the story of the appellant is true as to the settlement with Palmer he became in 1909 the absolute owner of the books and furniture in dispute.
7. In 1914, the complainant returned to India for a short time and apparently as a result of conversations between him and the appellant a letter was written to him by the appellant which is Exhibit 6. It is dated the 3rd December, 1914, and is, omitting formal parts as follows: -
1 shall let you have whenever you want your furniture, etc, which I am storing for you at Park Row and which I showed you the other day. If anything happens to me they will be handed over to you by my successors.
8. The complainant finally returned from England in, I think, 1922 and on the 7th February, 1922, the appellant executed in his favour a charge on his outstandings Exhibit I. Part of the consideration therefor is expressed to be the sale of some of appellant's furniture.
9. During 1922 correspondence passed between the complainant's solicitors and the appellant with regard to the disputes between them in the course of which it transpired that the books and furniture now in dispute were with Mr. C.A. Jones, the brother of the appellant, and on the 11th October, 1922, a letter Exhibit 29 was written by Mr. C.A. Jones legal advisers stating that he had certain books and furniture which were taken over by him from the appellant, and that he had no knowledge as to whether any of them belonged to the complainant, but that if the complainant obtained a letter from the appellant specifying the particular books and furniture which were the complainant's property and authorising him to make them over he would be glad to do so. On the 24th October however (see Ex. 20) Mr. C.A. Jones declined to make them over on the ground that the appellant did not admit the claimant's claim to any of the articles. On the 30th November after the search the appellant put in a petition Exhibit 43 submitting that the complainant had no claim whatever to any of the pro perties seized, all of which the appellant claimed. I have tried to disentangle from the large number of documents and papers exhibited in the case, many of which have nothing to do with the charge, the matters which relate to the charge before us and the facts and documents above set forth are, I think; all the material which is before us relating to the books and documents which are in issue.
10. The Magistrate as I have stated has found that the Palmer transaction was a mere paper transaction, and I think there is a good deal to support this view both from the surrounding circumstances and from the letter of the 3rd December, 1914 above referred to. It is not however satisfactory to have a matter of this nature decided in criminal proceedings and with all respect to the Magistrate as soon as Exhibit 8 was produced, which on the face of it shows a sale of the books and furniture in issue to Palmer, I think the case should have been stopped and the parties referred to the Civil Court which is the proper tribunal to decide a matter of this kind, There is no doubt that the appellant has been at a great disadvantage in dealing with the matter and furnishing an explanation if explanation there be. In the first place he could not give evidence on his own behalf, and after all, an examination by the Magistrate under Section 342 and the filing of a written statement are very Sorry substitutes in a matter of this nature for oral evidence in the witness-box by the person primarily concerned. Again in a civil action there would be discovery of documents which naturally assists in bringing to light all letters and documents having any bearing on the question in issue, the absence of this is not compensated for by the piecemeal production of selected exhibits furthering the prosecution case or that of the accused. Again in this case it was vital to the appellant to clear up the truth about Exhibit 8 and for this purpose to get Palmer's evidence. The transaction to which Exhibit 8 relates happened some 20 years ago and Mr. Palmer left India in 1909. Under these circumstances in a civil suit his evidence would have been available by means of a commission, in a criminal trial recourse could not be had to any such expedient and it may have been impossible to get Palmer here to give his evidence in the Police Court.
11. If Exhibit 8 was merely a paper transaction I think the circumstances probably disclose an offence under Section 409 but this is not I think, free from doubt, as it is curious that all along there has been no difficulty in handing over the property claimed by the complainant; usually in a case under Section 409 the property is no longer existent or has passed from the dominion of the accused but here, see Exhibit 29, all that was required was a letter from the appellant agreeing to his brother handing over the books and furniture. And in Exhibit 43 the appellant while still claiming them offers to return them for peace and quiet which would indicate that the dominion over them is still with him. Does not this suggest that rightly or wrongly the appellant considered that notwithstanding his letter of December 3rd, 1914, he still had some claim to the books and furniture and if he had some claim even if it turns out not to be sustainable in law there is no offence under Section 409 unless the claim is merely a pretence and not bona fide.
12. We think under the circumstances set forth above that the matter is one for the Civil Court and that an investigation into whether a transaction was benami or not should not ordinarily be undertaken by a Criminal Court. The appeal accordingly succeeds and we set aside the conviction and sentence passed upon the accused and direct the fine if paid to be refunded. The Magistrate's order with regard to the books and furniture is also set aside as the tights of the claimant and of the appellant as to these must be decided by a Civil Court which in accordance with the view expressed in this judgment is the proper forum to decide the questions which arise with regard to their ownership.