1. In this case the petitioner Asrafulla was the Secretary of the M.E. School at Pirgunge from 20th February 1912 to 7th December 1914, while the second petitioner Tasiruddin, who is the son of Asrafulla, was the 3rd teacher therein.
2. In the present proceedings the charge framed against them was that in the course of the year 1914 they had committed criminal breach of trust in respect of a sum of Rs. 177-14-9. This sum was the aggregate of 13 distinct items.
3. In respect of nine of the thirteen items the prosecution failed in the Trial Court, and in the Appellate Court the prosecution farther failed in respect of three items out or the remaining four. There is left an item of Rs. 12-14-6 Said to have been misappropriated on 30th November 1914.
4. It is clear that as regards this item the conviction cannot be sustained. Though on the face of the charge it appears to be one properly framed under the provisions of Section 222(2) of the Code, yet on closer examination, it appears, that is not the case. Three of the items relate to articles of moveable property, viz., a table-cloth, two window-frames and a bundle of fencing wire. No doubt what is charged purports to be the misappropriation of the cost price or proceeds of these articles5 but examination of the evidence shows that what is alleged is the theft of the articles themselves. We have then three charges of theft or misappropriation of specific articles committed at different times, joined with the charge of misappropriation of the aggregate of ten items of money. Titers can be no question that this misjoinder has vitiated the trial and what we have then only to consider is whether in setting aside the conviction we should or should not direct a retrial.
5. The item of Rs. 12-14-6 represents the pay of a teacher named Fatik Chandra Adhikary for half the month of October 1914. This is shown in the acquittance roll and cash book as paid on the 30fch November to the petitioner Tasiruddin. The explanation offered is that on his return after the puja vacation Fatik found that his place had been filled up, and being in need of money, he took this sum, namely, Rs. 8 from Asrafulla through Tasiruddin and Rs. 4 odd from Lalit Kumar Adhikary, the Head Master. On the authority then given by Fatik the sum due to him was made over to Tasiruddin when the School was in funds.
6. As regards this item the prosecution rests on the evidence of Fatik Chandra Adhikary and Lalit Kumar Adhikary. These men are cousins and both have grievances against Asrufulla, Lalit having been superseded as Head Master by one Basir Mohammad and Fatik having been similarly deprived of his appointment. Lalit admits that before he could return to his home Fatik had to borrow from some individual whom he cannot name and Fatik himself made no complaint until the 9th March 1916, that is three mouths after Asrafulla had been removed. Both again appear to be under the influence of the Local Officers of the Tagore Estate, who are hostile to the petitioner Asrafulla, because of his opposition to their demands upon the tenantry for enhanced rents. Further there appears, to have been no attempt to conceal the fact that on the 30th November, payment was made not to Fatik but to Tasir, and to the irregularities in the matter of accounts Lalit appears to have been a party.
7. Further the defence is supported by four witnesses, of whom one Basir Mohammad, now a Sub-Inspector of Schools, appears to be superior in position to the prosecution witnesses Lalit and Fatik.
8. In this state of things, having regard also to the failure of the prosecution as regards all but this one small item, and to the fact that these criminal proceedings were begun so long ago as the 15th February 1915, we are of opinion that this is not a case in which we should direct a retrial.
9. The petitioners are accordingly acquitted. The fines, if paid, will be refunded.