1. These two appeals arise out of an order passed by the Third Presidency Magistrate of Calcutta convicting the appellants Prafulla Kumar Roy Chowdhury and Manik Lal Sur of an offenc under Sections 120B/403, Indian Penal Code and sentencing them each to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500 or in default to undergo rigorous imprisonment for six months and awarding the fines, if realised, to the complainant as compensation. There was another accused person one Pramatha Nath Bose who was tried along with the appellant in respect of the same offence, but was acquitted.
2. The three accused persons were on the staff of the Bengali newspaper Basumati Profulla as a despatcher, Manik as an assistant accountant and Pramatha at checker of postage stamps. The prosecution case was that they conspired with each other and were members of a conspiracy with the object of committing criminal breach of trust in respect of postage stamp or the money equivalent thereof and that they did in fact commit the offence of criminal breach of trust in respect of 67,606 half-anna prostage stamps of Rs. 2,112-11 their money value. The period was confined in the charge to that between the 3rd October 1924 and, 23rd March 1925, both days inclusive. It was the prosecution case that a gigantic and well-organised swindle was being perpetrated in respect of postage stamps Or their money equivalent for some considerable time, but for the sake of convenience of proof or to prevent embarrassment the charge was confined to such postage stamps as were meant to be affixed to cards which would require half-anna stamps to pass through the post as post cards. The circumstances under which the fraud was detected are fully described in the judgment of the learned Magistrate and need not be repeated here, but it is necessary to describe the procedure which obtained in the office in order, to deal with the points which arise in the present appeal.
3. The procedure which was in vogue may be gathered, though not without considerable difficulty, from the evidence of the proprietor P.W. No. 4 and the Manager P.W. No. 1. The difficulty arises from the divergence as to the details in the evidence of these two gentlemen due mainly to the disregard of sequence in the events that they were asked to state. The procedure appears to have been somewhat cumbrous and to state quite shortly it was as follows: Letters issued from the different departments of the office--and there are sixteen departments of the concern manned by a very large number of employees--are entered in the issue registers of the respective departments and placed before the proprietor in his room for his signature. After they are signed the despatcher takes them from the proprietor's room. The despatcher then gets an advance from the Durwan requisite to cover the postage. This advance is made by the Durwan from out of the cash which he has in his hand on account of sale proceeds of newspapers sold through hawkers. The despatcher takes this advance from the Durwan after giving him a slip noting down therein the details of this amount. Stamp purchased with the amount so received is affixed by the despatcher to the letters and he produces them before the assistant accountant. The assistant accountant is supposed to check and count the number and value of the stamps on post cards, letters and packets enter the same separately on a slip, and while retaining the slip with himself, returns the post cards, letters and packets to the despatcher. The slip is made over by the assistant accountant to a clerk for being entered in the stamp register. This clerk ordinarily writes the stamp register, but in his temporary absence other persons as well write it including the checker of stamps. The despatcher takes the post cards, letters and packets to the checker of stamps whose duty it is to count them again and keep a note of the figures representing the stamps or their value. The articles are then despatched by the despatcher through some office peon to the post office. After the stamp register is written up the checker compares the entries with the notes kept by him and examines it with reference to the slip prepared by the assistant accountant which also passes on into his hands. The checker has also to compare the entries with the issue register of the different departments, The Durwan when he makes over the cash to the cashier, produces before him a book in which he gets written up a sort of account in respect of his collections and disbursements and he also produces before him the slip which the despatcher gives him for the advance taken. The cashier receives the balance, if any, and puts down in this book the items mentioned in the slip and makes a calculation therein showing the amounts spent on different heads and also the cash he receives from the Durwan. The cashier finds the amount taken by the despatcher to tally with what the stamp register shows and it is then inferred that the postage actually issued is the postage for which advance has been received from the Durwan. It may be conceded that if this procedure was followed to the letter, there could be no fraud but for the complicity of the despatcher, the assistant accountant and the checker, and each one of them was a sine qua non in the conspiracy and possibly others may also have participated in it.
4. Now as regards the embezzlement there can hardly be any room for doubt. A good, deal of argument has been advanced before us in order to show that the examination of the books of the office by the C.I.D. officer was not comprehensive enough, that the figures arrived at by him cannot be acted upon as they do not take into account the postage that must have been used in letter and packets, that the proprietor's personal correspondence and as well as stamps which must have been used by the Collection Department, the Ayurvedic Department, the Editorial Department and the Agency Department have not been included in the calculation. Our attention has also been drawn to some of the dates on which the number of letters actually despatched are far in excess of the number for which postage was charged for, and we have been asked, to hold that if an audit embracing all the departments, of the concern was made and for a sufficiently long period it would appear that there is no foundation for the charge. The learned Magistrate has dealt with all these matters very fully in his judgment and I entirely agree with him in, his conclusions in this respect. Making all sorts of allowance that is conceivable or that may be necessary nothing approaching a plausible explanation can be offered of the gigantic discrepancy in the figures. There is, in my opinion, not the slightest doubt whatever that a gross fraud was perpetrated in the office on a well organised system and for a considerable length of time, and but for the honesty of some people in the office, the fraud would have gone on without detection. The statements made by the appellants in their written statement or in their defence only betray an innate depravity of nature and only create in our minds an amount of prejudice against, them which personally I find it somewhat difficult to get over. The proprietor apparently did not realise that he had to deal with a wicked world and it is this ignorance on his part that has caused him to suffer.
5. The substantial question for investigation in the case is as to the complicity of the two appellants. As I have already stated, if the procedure which I have described was strictly followed, in other words, if the three members of the alleged conspiracy did what it was their duty to do every day, all three must have been parties to fit. In a criminal case, however, we are not permitted to proceed upon an assumption that they actually did what they were required by the rules to do. The learned Magistrate has recognised the importance of this doctrine when dealing with the case against the checker Pramatha With regard to that accused he thus observes in his judgment: 'There is ground for suspicion that accused No. 2 Pramatha was also in the conspiracy, as there is no doubt that he had the stamp register before him daily, because almost every day his initials are to be found under both the credit and the debit side. But it is said that he checked the totals only and did not compare with the issue register at all. None of these registers do, in fact, bear any initials of the accused No. 2 or any indication that he looked over them. It cannot, therefore, be said for certain that these registers were placed before him or seen by him daily in the evening as alleged by the prosecution. This work of daily checking used formerly to be done by the proprietor himself but as he was busy with litigation in 1924 he made over this duty to accused No. 2. The checking was done at the end of the day after a strenuous day's work. It is very doubtful whether the checking was ever done as it was intended to be done.' He thus acquitted Pramatha giving him the benefit of the doubt. The acquittal of this accused strikes at the root of the prosecution case and reflects upon the case as against the two appellants at leaf to this extent that we have got to be satisfied that the two appellants before us did actually follow, the routine that was prescribed for them in respect of the items covered by the period in the charge and to see what exactly has been proved in the case in this respect.
6. As regards the appellant Prafulla there is not the slightest doubt upon the evidence of the Manager P.W. No. 1 the proprietor P.W. No, 4 and the Durwan P.W. No. 3, that the part ascribed to him in the routine used, to be performed by him. There is other evidence corroborative of the evidence of these witnesses. To show that he was a party to the conspiracy, however, it has got to be proved that he took a larger sum of money from the Durwan than was actually necessary for the postage. On this point there is no evidence. The slips which he used to give to the Durwan are not available, the entries in the Durwan's book (Ex. 19) which purported to have been made by the cashier from those slips have been proved only by proof of the hand writing of the cashier the cashier has, not been called. It is said he has left office. This is not altogether unnatural as Prafulla is his brother; but that does not relieve the prosecution from proving that the entries so made by the cashier really represented what Prafulla had stated in the slips. The Durwan does not and indeed cannot be expected to say what amounts were taken by Prafulla. Prafulla's connection with the entries made in the stamp register or his knowledge of any other documentary evidence showing that larger amounts were being entered than were actually necessary has not at all been established. In fact it has not been shown that the canspiracy was not equally possible without Prafulla but with his brother the cashier as one of the conspirators and so long as this contingency is within the range of possibility Prafulla's complicity cannot be held to have been established. Prafulla's extra-judicial confession has not been relied upon by the learned magistrate and his reasons for so doing are sound and substantial. To bring home the offence to Prafulla in my judgment we have to assume the very facts which the prosecution has failed to prove against him.
7. Besides the evidence to which I have referred the prosecution relies upon the pieces of documentary evidence, namely, Exs. 2 and 3. These are two of the slips which used to be prepared by the assistant cashier. All the other slips are missing from the office. One of them, Ex. 2, is said to relate to a date subsequent to the period covered by the charge and is only relevant as showing the practice and that the assistant cashier used to prepare such slips. The other slip, Ex. 3, of which the lower portion is said to have been in his handwriting shows that he made an entry indicating that postage was being charged for a number of post cards far in excess of these that were being issued on that particular day. The latter undoubtedly is a very valuable piece of evidence as against the appellant Manik, but it does not touch the appellant Prafulla.
8. In my opinion, therefore, there is no evidence which would justify the conviction of Prafulla upon the charge on which he has been tried, and his appeal should be allowed and he should be acquitted and released.
9. With the acquittal of Prafulla, the other appellant Manik stands acquitted as a matter of course, for the conspiracy alleged in the charge is one in which only three persons are alleged to have been participators, of whom one was acquitted by the learned Magistrate and the other Prafulla has just been acquitted by this Court. The appellant Manik, therefore, should also be released.
10. I agree.