Blythe v. King — 1949 DIGILAW 171 (CAL)

JUDGMENT 1. The Appellant Blythe has been convicted by the Special Tribunal, Alipore, of a charge u/s 5(2) of Act II of 1947 and sentenced for this offence to rigorous imprisonment for four years and a fine of Rs. 5,000 and a further fine of Rs. 49,350 u/s 9(1) of the West Bengal Criminal Law Amendment (No. II) Ordinance, 1947 and in default of payment of the fines to further rigorous imprisonment for eighteen months. He was also convicted of another charge u/s 409 of the Indian Penal Code, but no separate sentence was passed on him for this offence. 2. Blythe, who had joined the British Army as a private in 1931, came out to India in 1937, as a non-commissioned Officer. In May, 1940, he joined the Indian Army Ordnance Corps. He saw active service in the Middle East and on return to India, in 1943, was promoted to Commissioned Rank in 1944. He went on leave in 1945, and shortly after his return from leave, was posted as I.A.O.C. representative attached to the Americans at Budge Budge. In February, 1946, Blythe assumed charge as depot commander of the Lothian and the Albion Depot, two of the four depots at Budge Budge, where American surplus stores taken over by the Government of India had been stocked and in April, 1946, he assumed charge of the other two depots--Ludlow and Gagalbhai. It is in connection with his duties as depot commander in charge of all these stores that he is said to have committed the offences of which he has been convicted. 3. As depot commander, Blythe was the storekeeper of all these stores. His main duty was to give delivery of stores from these depots in accordance with release orders issued by the Directorate of Disposals--who will be referred to hereafter as Disposals--to purchasers. His other duty was to have a physical check of the quantities of the stores against the statements received from the Americans, as obviously, in the absence of such a check, it would be practically impossible to detect unauthorised deliveries and thefts. 4. The prosecution case is that Blythe dishonestly delivered to Bharat Purchasing Company oil in excess of the quantities to which it was entitled under the release order from Disposals. It is on this allegation that the charge u/s 409 of the Indian Penal Code is based. 4. The prosecution case is that Blythe dishonestly delivered to Bharat Purchasing Company oil in excess of the quantities to which it was entitled under the release order from Disposals. It is on this allegation that the charge u/s 409 of the Indian Penal Code is based. It is further the prosecution case that Blythe, in his capacity as depot commander, obtained pecuniary advantage for himself. First, there is the general allegation that he did so by corrupt or illegal means. Secondly, it is alleged that he did so by abusing his position as a public servant in not reporting the excess stock of oils and greases in his charge. Lastly, it was alleged that he did so by dishonestly abusing his position, by disposing of part of the oils and greases to Bharat Purchasing Company. It is on these allegations that the charge u/s 5(2) of Act II of 1947 was based. 5. The accused pleaded not guilty to both the charges. He denied that oil in excess of the quantities to which Bharat Purchasing Company was entitled under the release order was delivered to it to his knowledge, or under his orders; as regards the allegation of not reporting excess stock, his case is that he found it impracticable to carry out a physical check of oils and greases and so was not aware of any excess stock. He denied also the charge of adopting any corrupt or illegal means, in connection with his duties as depot commander. 6. Before coming to the question whether the charges against the accused have been proved--as found by the Special Tribunal--it will be convenient to decide the questions of law that have been raised on behalf of the Appellant. 7. The first of these questions is on the question of jurisdiction. Mr. Talukdar has contended before us that, as the accused was an army officer, the Special Tribunal had no jurisdiction to try him, without first following the rules framed u/s 549 of the Code of Criminal Procedure. 8. 7. The first of these questions is on the question of jurisdiction. Mr. Talukdar has contended before us that, as the accused was an army officer, the Special Tribunal had no jurisdiction to try him, without first following the rules framed u/s 549 of the Code of Criminal Procedure. 8. Section 549 of the Code of Criminal Procedure is in these words: (1) The Central Government may make rules consistent with this Code and the Army Act, (44 and 45 Vict, Clause 58), the Naval Discipline Act (29 and 30 Vict., Clause 109) and that Act as modified by the Indian Navy (Discipline) Act, 1934 and the Air Force Act and any similar law for the time being in force as to the cases in which persons subject to military, naval or air force law, shall be tried by a Court to which this Code applies, or by Court-martial and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate, shall have regard to such rules and shall in proper cases deliver him, together-with a statement of the offence of which he is accused, to the commanding officer of the regiment, corps, ship or detachment, to which he belongs or to the commanding officer of the nearest military, naval or air force station, as the case may be, for the purpose of being tried by Court-martial. 9. It is not disputed that at the relevant time the accused was an officer of the Indian Army and so subject to military law. If, therefore, Section 549 of the Code of Criminal Procedure applies to trials held by Special Tribunals constituted under the West Bengal Criminal Law Amendment Act, the Special Tribunal, which tried the Appellant, ought to have followed the rules framed u/s 549 before proceeding with the trial. The question, therefore, is: Does Section 549 of the Code of Criminal Procedure apply to a Special Tribunal constituted under the West Bengal Criminal Law Amendment Act? 10. In our judgment, there are two good reasons, each of which by itself justifies the conclusion, that it does not apply to these tribunals. 11. The question, therefore, is: Does Section 549 of the Code of Criminal Procedure apply to a Special Tribunal constituted under the West Bengal Criminal Law Amendment Act? 10. In our judgment, there are two good reasons, each of which by itself justifies the conclusion, that it does not apply to these tribunals. 11. The first is that Section 549 of the Code of Criminal Procedure only comes into play when any person is brought before a Magistrate and charged with an offence.... It provides that in such circumstances, such Magistrate shall have regard to the rules framed under this section and do certain things.... 12. Special Tribunals, under the West Bengal Criminal Law Amendment Act, are not, however, Magistrates, they are in law Courts of Sessions. This is the consequence of a provision in Section 5(2) of this Act, which lays down that, for the purposes of the provisions of the Code of Criminal Procedure, the Special Tribunal shall be deemed to be a Court of Session, trying cases without a jury. Section 549 can have, therefore, no application, where a person is brought before the Special Tribunal and charged with an offence, for which he is liable to be tried either by a Court to which the Code of Criminal Procedure applies or by a Court-martial. 13. It was contended that, though Section 549 does not in terms apply to Courts of Session, it should be extended to a Special Tribunal, which, though a Court of Session, performs some functions which are not performed by Courts of Session, but are performed only by Magistrates. 14. In our judgment, this contention is without substance. The provisions of Section 549 are of a very special nature and have the result of taking away the jurisdiction of ordinary criminal Courts with respect to a certain class of people. Legal provisions of this nature have to be construed very strictly and jurisdiction should not be given up, unless the plain meaning of the words of the statute so require. There is no scope for extension by analogy of principle of this character. 15. Another reason that leads inevitably to the same conclusion that Section 549 of the Code of Criminal Procedure does not apply to these Special Tribunals arises from the same sub-section of Section 5, to which reference has already been made. There is no scope for extension by analogy of principle of this character. 15. Another reason that leads inevitably to the same conclusion that Section 549 of the Code of Criminal Procedure does not apply to these Special Tribunals arises from the same sub-section of Section 5, to which reference has already been made. The sub-section runs thus;-- (3) Save as provided in Sub-section (1), the provisions of the Code of Criminal Procedure, 1898, except the provisions of Section 196A and of Chapter XXXIII, shall, so far as they are not inconsistent with this Act, apply to proceedings of a Special Tribunal; and for the purposes of the said provisions the Special Tribunal shall be deemed to be a Court of Session, trying cases without a jury and a person conducting a prosecution before a Special Tribunal shall be deemed to be a Public Prosecutor. 16. The result of this is that provisions of the Code of Criminal Procedure which are inconsistent with the Act--the West Bengal Criminal Law Amendment Act--shall not apply to proceedings of a Special Tribunal. Are the provisions of Section 549 inconsistent with any provision of the Act? In our judgment, they are clearly inconsistent with Section 7 of the Act, which lays down that no Court ... save as provided in Section 6 ... have any jurisdiction of any kind in respect of a proceeding of a Special Tribunal. Section 6 provides for appeal and revision by the High Court. The position, therefore, is that, while Section 7 of the Act provides that no other Court--whether it is a Court-martial, or an ordinary criminal Court--shall have any jurisdiction of any kind in respect of proceedings of a Special Tribunal, Section 549 might have the consequence of transferring such proceedings to a Court-martial for trial. It must, therefore, be held that the provisions of Section 549 of the Code of Criminal Procedure are inconsistent with Section 7 of the West Bengal Criminal Law Amendment Act and so these provisions will have no application to trials before Special Tribunals. 17. Mr. Talukdar's next contention on the question of jurisdiction is that the sanction given by the Government of India to the institution of these criminal proceedings is not valid or sufficient. 17. Mr. Talukdar's next contention on the question of jurisdiction is that the sanction given by the Government of India to the institution of these criminal proceedings is not valid or sufficient. Sanction was given in this case both u/s 197 of the Code of Criminal Procedure and Section 6 of Act II of 1947 and the two sanctions are in almost identical terms. On the authority of the Privy Council decision in Gill's case ILR (1948) Cal. 542 : L.R. 75 IndAp 41, we are of opinion that no sanction was necessary u/s 197 of the Code of Criminal Procedure. But, as sanction was clearly required u/s 6 of Act II of 1947, the contention requires careful consideration. For a proper appreciation of the points raised by Mr. Talukdar, it is necessary to set out the order. It runs thus: The Governor-General of India is pleased to accord sanction u/s 6 of the Prevention of Corruption Act, 1947, to the institution of Criminal proceedings against Major (now Captain) J.E. Blythe, I.A.O.C., 1/S American Surplus Stores Unit, Calcutta, who, during the months February, 1946, to June, 1947, is alleged to have committed, in Calcutta and Budge Budge, the offences of criminal misconduct, as contemplated in Section 5 of the Prevention of Corruption Act by dishonestly misappropriating a part of the stock entrusted to him and by obtaining money by corrupt and illegal means and also by abusing the position of a public servant in connection with his function as a depot commander, in circumstances which constitutes his acts offences punishable, inter alia, under the following provision of law-- (i) Section 5(2) read with Section 5(1), Clauses (c) and (d) of the Prevention of Corruption. Act, 1947 (II of 1947) and (ii) Section 409 of the Indian Penal Code. 18. Mr. Talukdar attacks this order of sanction on three grounds. The first is that the mention in the sanction of "Calcutta", as one of the places where the offences were committed, shows that the sanctioning authority was wrongly told that the offences were committed at Calcutta and Budge Budge, though at the trial the case is that these offences were committed at Budge Budge. The first is that the mention in the sanction of "Calcutta", as one of the places where the offences were committed, shows that the sanctioning authority was wrongly told that the offences were committed at Calcutta and Budge Budge, though at the trial the case is that these offences were committed at Budge Budge. If the sanction order had mentioned Calcutta only and not Budge Budge, we would have agreed that the sanction was bad in law and could not validate the present proceedings, as the case here undoubtedly is that the offences were committed at Budge Budge. We cannot see, however, how the unnecessary and incorrect mention of Calcutta affects the validity of the sanction. Mr. Talukdar argues that the sanctioning authority might not have granted sanction, if Calcutta had not been mentioned to it as one of the places where the offences were committed and that the sanction must be held to have been obtained by misrepresentation and is therefore invalid. In our opinion, this argument cannot be sustained. The order itself indicates that the sanctioning authority had before it substantially those very allegations of fact, which form the prosecution case at the trial. It is on these allegations that the authority had to decide whether sanction should be accorded or not. Whether one or two places were the places of occurrence, or whether Calcutta was one of these places, would be of no importance at all, for this decision. The contention that sanction was accorded as the result of misrepresentation is, therefore, unjustified. The mention of Calcutta in the sanction order does not, therefore, in our opinion, invalidate the sanction. 19. Mr. Talukdar's next contention is that, as the deliveries to Bharat Purchasing Company, which are the only deliveries in which excess is said to have been delivered by the accused, did not start at all before April, 1947, the mention in the order of "during the months February, 1946, to June, 1947" makes the sanction invalid. 20. In our opinion, there is no substance in this contention. Blythe was depot commander from some date of February, 1946 to the end of June, 1947. As it was in connection with his duties as depot commander that the allegations against him were made, this entire period was mentioned in the order of sanction. 20. In our opinion, there is no substance in this contention. Blythe was depot commander from some date of February, 1946 to the end of June, 1947. As it was in connection with his duties as depot commander that the allegations against him were made, this entire period was mentioned in the order of sanction. The fact that, at the trial, the charge was limited to a part of this period only is not of any consequence. What is required in law is that the period, which is mentioned at the trial as the time of the offence, must be covered by the period mentioned in the sanctioning order. That requirement is satisfied here. 21. Mr. Talukdar's next point is that the sanction is defective, inasmuch as it mentions an offence u/s 5(2) of Act II of 1947, having been committed during the period February, 1946, to June, 1947. It is quite clear that, as Act II of 1947 received the assent of the Governor-General on March 11, 1947, no offence u/s 5(2) of the Act could be committed prior to that date. 22. There is undoubtedly this defect in the sanction order. But, in our judgment, this defect does not make the sanction wholly invalid. It is certainly invalid as regards the period up to March 11, 1947; for there cannot be a valid sanction for proceeding for an offence which did not exist in law and the offence of "criminal "misconduct as contemplated in Section 5 of the Prevention of Corruption Act" did not exist before the Act came into force, which was on March 11, 1947. But we see no reason why the sanction should for that reason be considered invalid even as regards the period from March 11, 1947. From that date, the offence of criminal misconduct, as defined in Section 5 of the Prevention of Corruption Act, 1947, came into existence. The sanction would have been unexceptionable if the period of the commission of this offence had been mentioned as "11th March, 1947, to June, 1947". Does the fact that wrongly some period of time prior to the 11th March, 1947, been included in the period alleged as the time for commission of the offence affects the validity of the sanction? In our opinion it does not. 23. Mr. Does the fact that wrongly some period of time prior to the 11th March, 1947, been included in the period alleged as the time for commission of the offence affects the validity of the sanction? In our opinion it does not. 23. Mr. Talukdar contended in the next place that the trial has been vitiated by the illegal joinder of the charge u/s 5(2) of Act II of 1947 with the charge u/s 409 of the Indian Penal Code. 24. Section 233 of the Code of Criminal Procedure provides that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. There can be no question that these provisions of the Code of Criminal Procedure apply to the present case. The law is well-settled that if charges, which cannot in law be tried at the same trial, are in fact tried at the same trial, the trial is bad in law. It is necessary to consider, therefore, whether the trial of the two distinct offences--one u/s 5(2) of the Prevention of Corruption Act and the other u/s 409 of the Indian Penal Code--at one trial is justified by any of the Sections 234, 235, 236 and 239 of the Code of Criminal Procedure. Section 234 deals with the trial of offences of the same kind; Section 236 deals with cases where it is doubtful what offence has been committed; Section 239 deals with the joint trial of different persons. None of these sections have, therefore, any application to the present case. Section 235, Sub-section (2), however, provides for the joint trial of offences, falling within more than one definition. The sub-section is in these words: If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial, for, each of such offences. Illustration (k) to this sub-section runs thus-- A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with and convicted of, offences under Sections 317 and 304 of the Indian Penal Code. Illustration (k) to this sub-section runs thus-- A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with and convicted of, offences under Sections 317 and 304 of the Indian Penal Code. 25. It is clear from this illustration that it is not necessary to justify joint trial that all the acts alleged together should constitute each of the two offences. It is sufficient if, of say, acts A, B, C and D alleged, acts A and B constitute one offence in law and acts B, C and D constitute another offence. In the present case, the acts alleged constitute an offence of the criminal misconduct u/s 5(2) of Act II of 1947; some of the acts alleged also constitute an offence u/s 409 of the Indian Penal Code. The joint trial of these two offences is, therefore, not illegal. 26. It was contended by Mr. Talukdar that the very fact that there are the special provisions in Act II of 1947, under which, in the trial of an offence u/s 5(2) of the Act, on proof of the fact of possession of pecuniary resources disproportionate to the known sources of income, the Court shall, in certain circumstances, presume that the accused is guilty and such a person shall be a competent witness of the defence and may give evidence on oath, while these provisions are not available with respect to the trial of an offence u/s 409 of the Indian Penal Code makes the joint trial of an offence u/s 5(2) of Act II of 1947 and an offence u/s 409 of the Indian Penal Code improper. This fact that certain special provisions of law are applicable to the trial of one offence, but not to the trial of the other, does not in any way reduce the field of operation of Section 235(2) of the Code of Criminal Procedure. The joint trial is legal, because it is permitted by Section 235(2), Code of Criminal Procedure. In spite of the joint trial, the special mode of proof in Section 5(3) of Act II of 1947 and the evidence on oath of the accused person u/s 7 of that Act will not be available in the trial of the charge u/s 409 of the Indian Penal Code. It may, as Mr. In spite of the joint trial, the special mode of proof in Section 5(3) of Act II of 1947 and the evidence on oath of the accused person u/s 7 of that Act will not be available in the trial of the charge u/s 409 of the Indian Penal Code. It may, as Mr. Talukdar contends, be difficult to efface the evidence of the accused person given on oath from the mind, when considering the charge u/s 409 of the Indian Penal Code after taking it into consideration, as regards the charge u/s 5(2) of the Act II of 1947. But it can be done. 27. Another criticism levelled by Mr. Talukdar against the charge was that it did not satisfy the requirements of Section 222 of the Code of Criminal Procedure. This section requires that the charge shall contain such particulars as to the time, the place of the alleged offence and the person against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Mr. Talukdar argued generally that the charge u/s 5(2) of Act II of 1947 did not contain sufficient particulars. We are unable to agree with this. In our judgment, the charge does give sufficient notice to the accused of all necessary particulars. 28. It was next urged that the charge u/s 5(2) of the Act of 1947 is defective, because the time of its commission was mentioned in the charge as February, 1946, to June, 1947. As I have stated above, Act II of 1947 came into force on and from March 11, 1947; no offence u/s 5(2) of the Act could, therefore, be committed prior to this date. Clearly, therefore, there is this defect in the charge. But that defect does not, in my judgment, invalidate the charge and vitiate the trial. For the period March 11, 1947, to June, 1947, there could in law be an offence u/s 5(2) of Act II of 1947 and as this period was included in the period mentioned in the charge, the wrong inclusion of some period when no such offence could in law be committed is, in my opinion, of no consequence. 29. For the period March 11, 1947, to June, 1947, there could in law be an offence u/s 5(2) of Act II of 1947 and as this period was included in the period mentioned in the charge, the wrong inclusion of some period when no such offence could in law be committed is, in my opinion, of no consequence. 29. It is necessary now to consider whether the Special Tribunal is right in its conclusion that the prosecution has been able to prove that the Appellant has committed the offences with which he was charged. 30. The case that the accused committed criminal breach of trust is based on the allegation that the accused ordered or permitted delivery to the Bharat Purchasing Company of oil S.A.E. 30 in excess of what it was entitled to. The release order issued to this company on its contract with the Directorate of Disposals has been exhibited. Item 157 in the order refers to oil S.A.E. 30 (Ex. 4), a voucher signed by one Captain Pratap, on behalf of the Budge Budge Depot, under date April 30, 1947 and Mohanlal for the Bharat Purchasing Company under the date May 6, 1947, shows that by this delivery of S.A.E. 30 oil, item 137 was completed. If, therefore, the prosecution could show that any S.A.E. 30 oil was delivered to Bharat Purchasing Company--after the delivery evidenced by Ex. 4---it would have proved its case of excess delivery, but would still have to show that the Appellant had either ordered or permitted this. 31. The only evidence to show that any S.A.E. oil was delivered to Bharat Purchasing Company after the delivery of Ex. 4 was given by P.W. 5, Parimal De, the warehouseman--who says that in June, 1947, several wagon loads of five gallon drums containing S.A.E. 30 oil were consigned to Bharat Purchasing Company. If this witness is believed, excess delivery is proved and the Appellant's responsibility for the same is also proved as, according to Parimal, this was done under Blythe's specific order. 32. This witness goes so far as to say that he actually brought it to the notice of Blythe in June, 1947, that all the S.A.E. 30 oil under the release order had been fully delivered and still Blythe ordered him to load these other drums containing S.A.E. 30 oil Clearly, however, Parimal is an accomplice. 32. This witness goes so far as to say that he actually brought it to the notice of Blythe in June, 1947, that all the S.A.E. 30 oil under the release order had been fully delivered and still Blythe ordered him to load these other drums containing S.A.E. 30 oil Clearly, however, Parimal is an accomplice. If excess oil was delivered, Parimal must have had a hand in it. If there was excess delivery, Parimal was, therefore, himself in grave peril of being charged with criminal breach of trust u/s 409 of the Indian Penal Code and u/s 5(2) of Act II of 1947. This is, therefore, a case where the rule of prudence that an accomplice is unworthy of credit unless corroborated in material particulars by independent evidence cannot possibly be departed from. What is the independent evidence which the prosecution has produced to corroborate Parimal's evidence? We can find none. 33. The Special Tribunal seems to think that there was sufficient corroboration of Parimal's evidence by the C.I.V. and C.R.V. vouchers--Exs. 12 to 15--and the two railway receipts Exs. 27 and 28. It is hardly necessary to discuss the bearing of the C.I.V. and C.R.V. vouchers on this question of excess deliveries, for these, being all of May, 1947, cannot possibly corroborate Parimal, who speaks of deliveries in June, 1947, as being in excess of the release order. 34. Exhibits 27 and 28 are equally useless to the prosecution. These railway receipts show that wagons were despatched from Budge Budge by Bharat Purchasing Company--to themselves. 35. But they do not show that these consignments were from deliveries from the Budge Budge Depot, of which the accused was in charge and Parimal was a warehouseman. The Special Tribunal wrongly placed the onus on the accused, in thinking that, so long as the accused did not prove that Bharat Purchasing Company had brought any oil from any of the oil companies at Budge Budge, it must be accepted that these receipts were for deliveries from the Budge Budge Depot. It was the prosecution who wanted the Court to believe that the receipts were for deliveries from Budge Budge Depot; as the receipts by themselves did not show this, it was up to the prosecution to bring out in evidence that Bharat Purchasing Company did not purchase oil from any other company at Budge Budge. It was the prosecution who wanted the Court to believe that the receipts were for deliveries from Budge Budge Depot; as the receipts by themselves did not show this, it was up to the prosecution to bring out in evidence that Bharat Purchasing Company did not purchase oil from any other company at Budge Budge. When no question about this was put by the prosecution to P.W. 7 Kedia--it would have been inexcusable of the defence lawyer to put any such question to Kedia--the Special Tribunal was, in our opinion, entirely wrong in drawing an adverse conclusion from the fact that-- not a suggestion is made in the cross-examination of Kedia by the accused to the effect that he had bought oil from the civilian companies at Budge Budge. 36. In the next place, these two railway receipts do not show that the drums contained S.A.E, 30 oil. 37. Apparently, a case was also sought to be made before the Special Tribunal that the accused gave delivery in excess of the release order, by delivery of S.A.E. 50 oil. But on this also the only evidence is that of Parimal, uncorroborated by any independent evidence and so unworthy of credit. 38. Our conclusion as regards the charge u/s 409 of the Indian Penal Code, therefore, is that the prosecution has failed to prove its case that the accused ordered or permitted delivery to the company of any oil in excess of the release order. 39. This finding is also sufficient to dispose of the second allegation in the charge u/s 5(2) of Act II of 1947, but for the special provision of Section 5(3) of the same Act, which we shall consider later. 40. We shall next consider the prosecution case that the accused abused his position as a public servant in not reporting the excess stock of oils and greases. It seems to have been somehow assumed that there was in fact an excess in the stock of oils and greases over the quantities mentioned by the documents received from the Americans. But we are unable to discover in the record any justification for this assumption. The only witness who says there was an excess is Parimal, who as we have already mentioned, is an accomplice. His evidence on this point also is uncorroborated. But we are unable to discover in the record any justification for this assumption. The only witness who says there was an excess is Parimal, who as we have already mentioned, is an accomplice. His evidence on this point also is uncorroborated. Major Mead, P.W. 2, has indeed said that, after, he took charge of the Budge Budge Depots, he carried out a full physical check of the oils and greases. But he does not say that, as a result of the check, he discovered that quantities received from the Americans were in excess of the quantities mentioned in the documents. Nor have any papers been produced to indicate either what quantities were mentioned in these documents, or what quantities were received. 41. Unless it is first established that there was an excess stock, it is absurd to find fault with the accused for not reporting the excess stock of oils and greases. We hold that the prosecution has failed to prove that the accused abused his position by not reporting excess stock--apart from the provisions of Section 5(3) of Act II of 1947. Our conclusion is the same as regards the other allegation in the charge u/s 5(2) that the accused obtained pecuniary advantage, by corrupt and illegal means. There is no evidence to show that, if the evidence, adduced u/s 5(3) is left out of consideration, the evidence that has been given in accordance with the special rule of law enacted in Section 5(3) of Act II of 1947 now requires consideration. 42. Before proceeding to consider this evidence, it will be convenient to analyse the provisions of Section 5(5). This sub-section is in the words: In any trial of an offence punishable under Sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. 43. 43. In the first place, this provision permits the prosecution to prove in these trials a fact, which would not be relevant under the Indian Evidence Act--the fact that the accused (or any body else on his behalf) is in possession of pecuniary resources or property, disproportionate to his known sources of income and that for such possession the accused person cannot satisfactorily account. To prove this fact the prosecution will have in practice to prove the pecuniary resources in the possession of the accused; then to prove what is known about his sources of income and then to prove that the accused person cannot satisfactorily account for this possession. If the Court is satisfied as regards these three things and also finds that the property is disproportionate to the sources of income, the prosecution will have proved the fact, which Section 5(3) gives it the right to prove. Thereupon, it will become the duty of the Court to presume that the accused has committed the offence of criminal misconduct--but, even then, the accused has the right to prove that he has not committed this offence. And if the accused succeeds in proving this, the Court shall not make the presumption aforesaid and will declare him not guilty. 44. It remains how to apply these principles to the facts of the present case. 45. To prove the pecuniary resources in the possession of the accused, the prosecution relies on three documents--Ex. 22, Ex. 24 and Ex. 6. The first two are certified copies of the accused's bank accounts--Ex. 22 for the Lloyds Bank account and Ex. 24 of the Imperial Bank account. Ex. 22 shows deposits mainly of the pay and allowance received by the accused as an army officer and discloses a balance of about Rs. 8,000 at the end of March, 1947, Rs. 13,000 at the end of April, about Rs. 12,000 at the end of May and about Rs. 13,000 again at the end of June, 1947. Exhibit 24 shows that the account with the Imperial Bank was opened at the end of February, 1947, with Rs. 3,000, Rs. 10,850 was deposited in March, Rs. 6,000 in April, Rs. 12,150 in May and Rs. 7,200 in June. There was no withdrawal from the account, except of Rs. 20,713 in June for the purchase of defence bonds of 2,000. 3,000, Rs. 10,850 was deposited in March, Rs. 6,000 in April, Rs. 12,150 in May and Rs. 7,200 in June. There was no withdrawal from the account, except of Rs. 20,713 in June for the purchase of defence bonds of 2,000. Exclusive of the assets of the Lloyds Bank, the accused was, therefore; in possession, at the end of May, 1947, at least of Rs. 32,000 and at the end of June, 1947, of Rs. 39,000, inclusive of the defence bonds. 46. The prosecution case is that besides these pecuniary resources, the accused had also in his possession, in June, 1947, sterling investments of the value of Rs. 43,500 and an amount of Rs. 4,000 in cash. The prosecution relies on Ex. 6 to show this. Exhibit 6 is a cryptic document, admittedly in Blythe's handwriting. It was found in a drawer of a writing table in the house where Blythe lived up to the end of June, by Major Mead, who came to live there on July 8, 1947. It will be useful to reproduce the document in full-- Rs. 3,250 ... 43,500 31-5-47 ... 32,000 Due ... 18,650 In hand ... 4,000 Total ... 54,650 Transfer ... 2,000 Total ... 56,650 In sight R.D. ... 5,000 ... 6,000 To wg ... 1,000 ... 15,000 ... 27,000 47. It is quite clear that this document was a rough calculation by Blythe himself sometime in June, 1947, of his assets including-expected assets. Blythe himself states that he jotted down these figures, probably when he was having a drink, one evening in the early part of June, 1947. Obviously, the second entry--"31-5-47 "--Rs. 32,000" refers to Blythe's balance in the Imperial Bank account. The next entry of Rs. 18,650 was clearly for money which was expected. It is not necessary to speculate, as to the ground of the source of this expectation. Clearly, this amount was not in the possession of the accused. It is also not clear whether Rs. 2,000 entered later was for money in hand. It is clear, however, that the Rs. 4,000 shown as "In hand" was money in the possession of the accused on the date in June, when he wrote Ex. 6 and this is not disputed. 48. The dispute is over the first entry--3,250--Rs. 43,500. It is also not clear whether Rs. 2,000 entered later was for money in hand. It is clear, however, that the Rs. 4,000 shown as "In hand" was money in the possession of the accused on the date in June, when he wrote Ex. 6 and this is not disputed. 48. The dispute is over the first entry--3,250--Rs. 43,500. Does this represent money in the possession of the accused, exclusive of the balances in the two bank accounts, or does it, as claimed by the accused, represent the total of Rs. 32,000 in the Imperial Bank, Rs. 7,600 in the safe and Rs. 3,850 in the account Ex. E--in the name of Mrs. Howe, a lady who was then living with the accused?' If this entry "3,250--Rs. 43,500" was intended to include the amount of Rs. 32,500 in the Imperial Bank, we can think of no reason why this amount of Rs. 32,000 would be entered again, in the same calculation. Again, if there was on this date Rs. 7,600 in the safe, the entry "In hand Rs. 4,000" becomes incapable of explanation. It is also necessary to notice that the sterling amount is mentioned first and then its equivalent in rupees is mentioned. On consideration of all this, we are unhesitatingly of opinion that this first entry in Ex. 6 is with respect to the accused's sterling investments and has nothing to do with his monies in any of the bank accounts in India, or the money he had in his safe. Our conclusion, therefore, is that in June, 1947, the accused had in his possession the following pecuniary resources: about Rs. 12,000 in the Lloyds Bank, about Rs. 43,000 in sterling investments, about Rs. 32,000 in the Imperial Bank and Rs. 4,000 in the safe. We have excluded from this calculation the deposits of Rs. 5,000 in June 6 and Rs. 2,200 on June 30, in the Imperial Bank--as it is not known whether, by the time these deposits were made, there had been any reduction of the sterling investment or the money in the safe. 49. The important question that arises next is whether the prosecution has proved that the accused could not satisfactorily account for his possession of these pecuniary resources of the approximate value of more than Rs. 90,000. 49. The important question that arises next is whether the prosecution has proved that the accused could not satisfactorily account for his possession of these pecuniary resources of the approximate value of more than Rs. 90,000. For, unless this is also proved, the prosecution cannot be said to have proved the fact that "the "accused person is in possession, for which the accused person "cannot satisfactorily account, of pecuniary resources..."; and unless this fact is proved, the prosecution can derive no assistance from the special provisions of Section 5(3). 50. For the purpose, however, of proving that the accused could not satisfactorily account for the possession of pecuniary resources, the prosecution is entitled to rely not only on the evidence of its own witnesses, but also on the evidence of the accused himself. It is not necessary for us to consider in this case the position which would arise where the accused does not offer any explanation for his possession. In the present case, the accused has offered a twofold explanation for the possession of these resources and if this explanation is clearly unacceptable, the prosecution will have proved that the accused cannot satisfactorily account for his possession of the pecuniary resources. 51. The explanation offered by the accused, is, as we have stated above, two-fold. He says that he won Rs. 8,000 at card games with an American, between December, 1945 and February, 1946; and that he won large sums by successful betting at races in Calcutta from December, 1946, to March, 1947. 52. We are prepared to believe that even such a large sum of Rs. 8,000 can be won at cards, in four months, by a skilful player--specially when he plays against deeds if the stakes are high. But, if this accused did actually win Rs. 8,000, the normal conduct for him would be either to put it in his bank, or to invest it. What he says is that, instead of doing either, he kept all this money with him till the end of December, 1946. That is incredible. It is on this ground that we disbelieve his account that he won Rs. 8,000 at cards. 53. As to winning at races, his evidence is that the maximum won by him in any single week was about Rs. 3,500 and the minimum was about Rs. 300 and that he lost on one or two occasions only. That is incredible. It is on this ground that we disbelieve his account that he won Rs. 8,000 at cards. 53. As to winning at races, his evidence is that the maximum won by him in any single week was about Rs. 3,500 and the minimum was about Rs. 300 and that he lost on one or two occasions only. It is curious that nothing out of his alleged winnings at these races found its way to his bank account in either December or January. In February, he opens a new account with the Imperial Bank and the first deposit is of Rs. 3,000. Supposing this deposit and the further deposits during March are explained by his winnings at the races, we are unable to see how this account can explain the deposits made in April, May and June. For we find it impossible to believe that, after he won money at the races, the accused would keep it in his safe for several months and then deposit it in driblets. We believe, therefore, that no part of the deposits during April, May and June at least was made from the winnings at races. 54. The military pay and allowances were all deposited in the Lloyds Bank account. The bank account (Ex. 22) shows this and the accused's own evidence is also to the same effect. The balance standing to the credit of the accused in this bank is thus satisfactorily accounted for. But these receipts--military pay and allowances--cannot account for any portion of his monies in the Imperial Bank. 61. Our conclusion, therefore, is that the accused has not satisfactorily accounted for the pecuniary resources in his possession as shown by the Imperial Bank account. 62. We have already stated our finding that the explanation offered by the accused as regards the 3,250, mentioned in Ex. 6, that it is merely the total of the Rs. 32,000 in the Imperial Bank, Rs. 3,850 in an account in the name of his lady love Mrs. Howe and Rs. 7,000 in his safe--is untrue and that, in the first part of June, 1947, when Ex. 6 was written by the accused, he had in his possession this 3,250 as sterling investments, quite apart from his rupee holdings in the banks in India. 3,850 in an account in the name of his lady love Mrs. Howe and Rs. 7,000 in his safe--is untrue and that, in the first part of June, 1947, when Ex. 6 was written by the accused, he had in his possession this 3,250 as sterling investments, quite apart from his rupee holdings in the banks in India. The fact that the accused has given a false explanation for this 3,250 is itself sufficient for the finding that the accused has not satisfactorily explained his possession of these sterling investments. 63. Our conclusion on this part of the case, therefore, is that of the Rs. 90,000 worth of pecuniary resources the accused had in his possession in June, 1947, the accused has satisfactorily accounted for Rs. 12,000 only and that he has not satisfactorily accounted for the remainder. 64. That this amount, which he has not satisfactorily accounted for, is absolutely disproportionate to his known sources of income is self-evident, the known sources of income being his military pay and allowances, which only account for the deposits in the Lloyds Bank. 65. We find, therefore, that the prosecution has proved in fact that the accused was in possession of pecuniary resources of which he cannot satisfactorily account for, disproportionate to his known sources of income. The consequence that will follow from this is that the Court shall presume that the accused is guilty of criminal misconduct in the discharge of his official duty--unless the contrary is proved. 66. Has the contrary been proved? The burden of proving the contrary is obviously on the accused and on the vexed question whether this burden on the accused is of the same or a lesser degree than the burden that lies on the prosecution of proving the guilt of the accused beyond reasonable doubt, we shall assume for the purpose of this case that, where the burden of proving any fact is on the accused, -it is not necessary to prove it beyond reasonable doubt and it is sufficient to show that the probabilities are that this is the fact. 67. Even on this assumption, we have no hesitation in coming to the conclusion that the accused has failed to prove the "contrary". 67. Even on this assumption, we have no hesitation in coming to the conclusion that the accused has failed to prove the "contrary". The three allegations against him--the "contrary" of which he is to prove in the charge--are that he obtained pecuniary advantage for himself by corrupt and illegal means; that he obtained pecuniary advantage for himself by abusing his position, as a public servant, in not reporting the excess stock of oils and greases in his charge; that he obtained pecuniary advantage for himself by dishonestly disposing of part of the oils and greases to Bharat Purchasing Company. 68. To prove the contrary of these allegations, the accused would have to show at least that these allegations were probably false. 69. As we have stated above, the evidence in the case--apart from Section 5(3) of Act II of 1947--does not prove affirmatively the truth of these allegations. But the failure of the prosecution to prove affirmatively the truth of these allegations does not justify a finding that they are probably false. 70. As regards the first allegation of receiving money by corrupt and illegal means, we think it is extremely difficult--if not impossible--for the accused to prove the contrary, except by showing (a) that he had no opportunity of receiving any such money, or (b) that his financial position, shows that he could not have received such money. It is because his financial position is such as is not explained by his regular sources of income, that the need of proving the "contrary" has arisen. So, the method of (b) is in fact not available to him. As regards (a), it cannot for a moment be seriously suggested that the accused, as the man in charge of the depot, had no opportunity to receive money by corrupt and illegal means. 71. As regards the second allegation, regarding not reporting excess stock, the accused's case is that it was not possible to hold any physical check. The stock was no doubt very huge and it would certainly have taken a very long time if each drum had to be checked to see if it was full or not. A general check of the number of tins of different capacities would, however, give a very good idea of the stock and this could not take much time. The stock was no doubt very huge and it would certainly have taken a very long time if each drum had to be checked to see if it was full or not. A general check of the number of tins of different capacities would, however, give a very good idea of the stock and this could not take much time. The difficulties in the way of a thorough physical check do not, therefore, justify a conclusion that probably the accused did not hold a physical check, or that he was not aware of any excess stock for report. The accused himself has no doubt said that no physical check of the oils and greases was made under his orders and to his knowledge, prior to the check made by Groves between June 20 to June 28. He says that he himself gave Groves orders to carry out a physical check of the P.O.L. section on June 20, 1947 and that Groves did the job and gave the accused the list on June 28. He says further that he actually drew the attention of Lt.-Col. Mecutcheon to this list, on the morning he was relieved by the latter. If this evidence of a physical check being ordered by the accused on June 20 could be accepted, that would be a very good ground for thinking that no earlier physical check had been held by accused and in that case, it would be reasonable to hold that the allegation that the accused had deliberately omitted to report the excess stock of oils and greases was probably false. But we find it impossible to accept the uncorroborated testimony of the accused on this point. No attempt appears to have been made to call Groves and Lt.-Col. Mecutcheon as defence witnesses. It is true that Major Green, who was, from April, 1946, to the middle of July, 1947, Deputy Chief Ordnance Officer of the Unit, in which the stores in question were, says: To the best of my knowledge no stock-taking of P.O.I. section had been taken the reason being that issues to the Bharat Purchasing Company were still in progress. 71. He, however, is not likely to know of any stock-taking, unless a report was sent to him. His want of knowledge of any stocktaking being taken is, therefore, not of the slightest assistance to anybody. 72. 71. He, however, is not likely to know of any stock-taking, unless a report was sent to him. His want of knowledge of any stocktaking being taken is, therefore, not of the slightest assistance to anybody. 72. In our judgment, the accused has failed to show that the allegation that he obtained pecuniary advantage for himself, by omitting to report excess stock, is probably false. 73. The essence of the third allegation is that the accused dishonestly disposed of oils and greases to the Bharat Purchasing Company. We have stated above that the evidence on the record apart from the provision of Section 5(3) of Act II of 1947--is not sufficient to prove that the accused did dishonestly dispose of any oils and greases to Bharat. This finding will not, however, serve the purpose of the accused, when, to meet the situation created by the provision of Section 5(3) of Act II, he has to show at least that the allegation is probably false. Apart from his own testimony that he did not deliver or order to be delivered to Bharat any oils in excess of what Bharat was entitled to, there is nothing to show that the prosecution allegation is false. We think it is ridiculous to suggest that, in the absence of supporting circumstances, the mere word of the accused should be taken as sufficient to shew that the prosecution suggestion is false, or is probably false. We are unable to find on the record any circumstance which lends support to the accused's testimony on the point. 74. An argument was advanced by Mr. Talukdar that the Bharat Purchasing Company was in fact entitled to all excesses of oils and greases in the Budge Budge Depot and so, even if accused did deliver to them oils and greases in excess of the quantities mentioned in the Release Order, that would not be an abuse of his position as a public officer. It appears that, on May 22, 1947, Bharat wrote to the Director-General of Disposals, claiming that they were entitled to all excess in lubricating oil and grease in Budge Budge (Ex. 18). By the letter Ex. It appears that, on May 22, 1947, Bharat wrote to the Director-General of Disposals, claiming that they were entitled to all excess in lubricating oil and grease in Budge Budge (Ex. 18). By the letter Ex. 19 the Director of Disposals said that the matter be deferred until certain outstanding problems had been cleared up and it was added that, in any case, the excess which might fall to Bharat could relate only to those specific types of oil and grease, mentioned in the list on which Bharat's offer was based. The final decision of the Directorate was conveyed by the letter Ex. 9. By this, the Directorate agreed that all shortages and excesses would be for Bharat's account, provided that-- (a) such shortages and excesses relate to the specific oils and greases set out in the schedule attached to the Release Order No. 1381; (b) that the excess related to the S.P.B. forms mentioned in he said schedule; (c) that all claims by prior purchasers had been satisfied. 75. It was suggested by the learned Advocate-General that this decision as conveyed in Ex. 9 was given by Feldman in abuse of his position and that this did not add to the legal rights of Bharat by his contract of purchase. We do not think it necessary to decide this question for the purpose of the present case, for in our view, assuming that the decision as conveyed in Ex. 9 did in law give Bharat certain rights, that is of little assistance to the accused. In the first place, it is to be noticed that the excess would be limited to only the oils and greases specified in the release order. The prosecution allegation of excess delivery is not, however, limited to these specified varieties. At best, therefore, it might be said that the accused did not abuse his position in so far as he gave Bharat delivery of the specified varieties in excess of the quantities mentioned. But what about the varieties, not specified, if quantities in excess were supplied? Exhibit 9, therefore, does not remove or discharge the burden on the accused to show that the prosecution allegation that oils and greases in excess of the quantities to which Bharat was entitled was delivered by accused to Bharat is probably false. 76. But what about the varieties, not specified, if quantities in excess were supplied? Exhibit 9, therefore, does not remove or discharge the burden on the accused to show that the prosecution allegation that oils and greases in excess of the quantities to which Bharat was entitled was delivered by accused to Bharat is probably false. 76. It is further to be noticed that, even as regards the varieties of oils and greases specified in the Release Order, Bharat would become entitled to all excesses only if "all claims by prior "purchasers had been satisfied". There is nothing on the record to indicate that all claims by prior purchasers had been satisfied even as regards S.A.E. 30 oil--the type specified in the Release Order, about which prosecution made a specific case that excess had been delivered to Bharat under the order of the accused. 77. We are of opinion, therefore, that, even if Ex. 9 gave. Bharat certain rights in addition to what the contract of purchase on the face of it entitled them to, that fact is of no assistance to the accused. 78. Our conclusion is that the accused has failed to show that the prosecution allegation that he obtained pecuniary advantage for himself, by abusing his position as a public servant, by dishonestly disposing to the Bharat Purchasing Company oils and greases, is probably false. He has thus failed to prove the contrary, of any of the three allegations, each of which, taken by itself, would make out a case u/s 5(2) of Act II of 1947. 79. The position, therefore, is that the prosecution has proved that the accused was in possession, for which he could not satisfactorily account, of pecuniary resources disproportionate to his known sources of income; the accused has failed to prove the contrary of any of the allegations, each of which constitutes the offence of criminal misconduct, as defined in Section 5(1) of Act II of 1947. The result of the provisions of Section 5(3) of the same Act, therefore, is that the Court shall presume that the accused is guilty of criminal misconduct. 80. We find, therefore, that the accused has been rightly convicted u/s 5(2) of Act II of 1947. The sentence of four years' rigorous imprisonment and a fine of rupees five thousand, with a further fine of Rs. 80. We find, therefore, that the accused has been rightly convicted u/s 5(2) of Act II of 1947. The sentence of four years' rigorous imprisonment and a fine of rupees five thousand, with a further fine of Rs. 49,350 u/s 9(1) of the West Bengal Criminal Law Amendment Ordinance, 1947 and in default of payment of the fines, to further rigorous imprisonment for eighteen months is, in our opinion, proper. We affirm the conviction and the sentence. 81. As we have found earlier, the charge u/s 409 of the Indian Penal Code against the accused has not been proved. The order of conviction u/s 409 is set aside. The accused must surrender to his bail. 82. On behalf of the Appellant we have been moved to grant a certificate u/s 205 of the Government of India Act. Section 205 refers only to cases involving substantial questions of law as to the interpretation of the Government of India Act or any 'Order in Council made thereunder, or of the Indian Independence Act or of any Order made thereunder. None of the questions raised and decided in the appeal now before us touch any of the Acts or Orders referred to in Section 205 of the Act. Certificate is accordingly withheld.