Renupada Mukherjee, J.
1. Appellant Elahi Bux khan alias Elahi Baksha Khan was placed on his trial before the Judge, First Special Court, Alipore on two charges under Ss. 409 and 477, I. P. C. and convicted and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 100/-, in default, to undergo further rigorous imprisonment for one month on each of the two charges. The substantive sentences of imprisonment passed by the Special Judge on each of the two charges were directed to run concurrently.
2. The prosecution case may briefly be stated thus:
3. One Fakir Jana (P. W. 1) who hails from Baleswar District in Orissa was a servant of one Ramanath Das of village Patuakhali within Joyna-gore Police Station in the district of 24-Parganas. On 24th Pous 1359 B. S. corresponding to 8-1-1953, Fakir Jana remitted a sum of Rs. 60/- through his master's son Kalipada Das by three money orders of Rs. 35/-, Rs. 15/- and Rs. 10/- to his son Nara-yan Jana in village Gorapukuria in Baleswar district from Merrigunge Post office which is a sub-post office under Joynagore. Accused Elahi Bux Khan was then acting as the branch post master of Merrigunge post office as a nominee of permanent extra departmental branch post master Mahammad Ibrahim Gharami and he received the sum of Rs. 60/-along with a further sum of Rs. 2/- on account of Money Order commission and his remuneration for writing out the money order forms. Some time after the above date Fakir Jana was intimated by his son from Baleswar district that the latter had not received the amounts said to have been sent to him. by money orders and when. Fakir Jana referred this matter to Elahi Bux Khan he promised to re-turn the money to him which was done in the house of one Haji Ainuddin and the three postal receipts-already given to Fakir Jana through Kalipada were handed over to the appellant. This took place in Phalgoon 1359 B. S. Thereafter Fakir Jana went to Joynagore Mazilpore Post office on 21-2-1953 for remitting the above amount of Rs. 60/- and being questioned why he did not avail himself of the services of Merrigunge post office which was nearer to his house, he disclosed the whole incident relating to the previous money orders sent from the last mentioned post office.
At the request of Makhan Lal Bose (P. W. 10) Sub-Post Master of Joynagore Mazilpore post office Hiralal Naskar (P. W. 15) a postman of Joynagore Mazilpore post office reduced the statement of fakir Jana into writing which was also signed by the latter.
4. A departmental enquiry was set afoot and a prima facie case of criminal breach of trust in respect of a sum of Rs. 62/- having been disclosed against Elahi Bux Khan the case was made over to the police who submitted a charge-sheet against the accused appellant under Section 409, I. P. C., and also under Section 477, I. P. C. for having removed three counterfoil receipts from a book of the post office.
5. The police submitted a charge-sheet against the appellant alter completing their investigation and the appellant was placed on his trial before the Judge Special Court, Alipore,
6. The defence of the accused appellant was that he was never the post master of branch post office Merrigunge, and he was only a clerk of the Onion Board under one Mahammad Ibrahim Gharami who was the Vice President of the Union Board and also the branch post master of Merrigunge post office. The case of the defence further was that he occasionally wrote papers of the post office at the request of the post master and it was the latter who had received the amount in question and the appellant refunded the amount to Fakir Jana on behalf of Mahammad Ibrahim Gharami. The appellant denied all knowledge of the disappearance of the counter-foil receipts from any book of the post office.
7. The defence of the Appellant was negatived by the learned Special Judge who held that the prosecution case had been proved beyond any reasonable doubt and in that view of the matter the appellant was convicted and sentenced in the manner already stated.
8. The appellant was convicted under two charges, one under Section 409, I. P. C. and another under Section 477, I. P. C. I shall deal with each of the charges one after another and see how far the conviction of the appellant is proper or legal.
9. Section 409, I. P. C., relates to an offence of criminal breach of trust by a public servant. One of the essential ingredients of this offence is that the accused must have been a public servant at the lime of the commission of the offence. From the statement of the facts of the case it would appear that the accused received Rs. 60/- from one Kalipada Das for transmission by three money orders to a son of Fakir Jana in Baleswar district.
For the moment I shall assume that it was the accused appellant who had received the money. Then the question would arise whether the appellant had received the money in his capacity as a public servant. The learned Special Judge answered tin's question in the affirmative. The ground for his coming to this conclusion is that appellant Elahi Bux Khan was performing the duties of the branch post master at the relevant time as a nominee of the permanent post master Ibrahim Gharami and so he was in possession of the situation of the branch post master although there was no document to show his appointment as such.
The learned Special Judge has relied on explanation 2 of Section 21, I. P. C. for the purpose of coming to the above finding. I do not think that the learned Judge's finding that the appellant was a public servant at the material time was a correct finding in law. The expression 'public servant' has been defined in Section 21 I. P. C. for our purpose the following portion of Section 21 including explanation 2 may be quoted here.
'The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely:
* * * *Ninth -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government * * *
Explanation 2....Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation'.
10. Now one of the essential requisites for the make-up of a 'public servant' is that he must be an officer that is, the bolder of some office. In this case the appellant was not the holder of any office at all -- he being a mere nominee of the permanent incumbent Mohammad Ibrahim Gharami. It is an admitted fact that Mohammad Ibrahim Gharami never made over charge of his office to the appellant, neither had Government given any temporary letter of appointment to the appellant.
It has been held in a case reported in --'Nazamuddin v. Queen Empress', 28 Cal 344 (A), that an officer in the service or pay of Government within the terms of section 21, I. P. C. is one who is appointed to some office for the purpose of some public duty. Here the appellant was temporarily carrying on the duties of the branch Post master purely as a nominee of the latter without any authority being given by Government by a letter of appointment. Such a person, in my judgment, cannot be regarded as a public servant within the meaning of Section 24, I. P. G.
11. In holding that the appellant was a public servant the learned Special Judge was greatly influenced by the fact that at the material time the appellant was performing all the functions of the branch post master, such as, the writing out of the books maintained at the post office, sending advice of daily accounts to the superior post office, etc. From these facts the learned Judge concluded that the appellant was in actual possession of the situation of the branch post master of Merrigunge post office on the material date although there might be some defect in his right to hold the situation.
He was of opinion that explanation 2 to Section 21, I. P. C. was applicable. In my opinion this view of explanation 2 to Section 21 taken by the learned Judge is erroneous because there was absolutely no appointment by Government in favour of the appellant and so no question of any legal defect in his right to hold the situation arises. Explanation 2 has, therefore, no application to the facts of this case.
12. A situation can be held at one and the same time by one person only and as Ibrahim Gharami had not made over charge of his office at the relevant time it must be held that in the eye of law he was still functioning as the branch post master and not the appellant who was only an appointee or nominee of Ibrahim Gharami and not of Government. This view will gain some support from the fact that in the personal security bond which Ibrahim Gharami executed for obtaining his appointment (Exhibit 4) it was provided that he would remain liable not only for his own acts but also for the acts of his nominees.
In the result I hold that the appellant was not a public servant when he received the sum of Rs. 60/- from Kalipada Das for transmission by three money orders.
13. I must make it clear in this connection that it is not my view that a nominee cannot become a public servant under any circumstances. Where a permanent branch post master relinquishes change of his office in favour of his nominee and Government authorises the latter to carry on his duties by a temporary letter of appointment the nonince would become a public servant. Until that is done, the nominee while discharging the duties of a public servant remains a private agent of the permanent branch post master and no prosecution would lie against him for criminal breach of trust under Section 409, I. P. C.
I should like to draw the attention of postal authorities to the danger of allowing branch post masters to carry on their duties through their nominees during their temporary absence without any letter of appointment being issued by the postal Department in favour of such nominees.
14. The result of the foregoing observation is that the charge under Section 409, I. P. C. against the appellant must fail as he was not a public servant when he received the sum of Rs. 60/-. He received the amount but paid it back apparently to the satisfaction of the party who had paid it. That being the case the charge under Section 409, I. P. C. was not maintainable against him of which he is acquitted.
15. The second charge levelled against the appellant was under Section 477, I. P. C. Compared to the previous charge this charge was of a less important nature and it must be held that there was ample scope for giving the appellant the benefit of the doubt so far as this charge is concerned. This charge was laid against the appellant on the allegation that he had removed some counter-foil money-order receipts from a postal book marked Exhibit 8. It would appear from the evidence of Ibrahim Gharami that the appellant performed the duties of the branch post master in his absence for the period from 8-1-1953 to 17-1-1953.
After 17-1-1953, Ibrahim Gharami took over charge of the post office from his nominee. But the disappearance of the counter-foil money order receipts in question was not detected until a long time had elapsed from 17-1-1953, because Ibrahim Gharami stated in his evidence that when he took over charge he did not notice that any of the counter-foils was actually missing from the book. That being the case, it is not possible to say with any degree of certainty as to who was responsible for the disappearance of the counter-foils in question.
Even if it be assumed that the counter-foils disappeared during the period from 8th January to 17th January 1953, it cannot be said that the appellant was responsible for their disappearance, because the permanent post master not having actually made over charge to his nominee, it must be held that the ultimate control and management of the post office lay with him and not with his nominee. In the circumstances we arc not prepared to agree with the finding of learned Special judge that the responsibility for the disappearance of the counterfoils should be fixed with the appellant.
As I have already stated, there is ample scope for giving the benefit of the doubt to the appellant. In my judgment this charge has not been made out against the appellant beyond any reasonable doubt and so he must be acquitted of this charge also.
16. In the result this appeal succeeds, the conviction of the appellant and the sentences passed on him are set aside and the appellant is acquitted.
J.P. Mitter, J.
17. I agree.