Sivanandan v. State — 1955 DIGILAW 60 (KER)

Judgment :- 1. This appeal is against a conviction for commission of the offences of criminal breach of trust, forgery and falsification of accounts - offences punishable under S. 409, 467 and 477A of the Indian Penal Code, corresponding to S. 410, 469 and 480 of the Travancore Penal Code. The appellant Govindan Sivanandan was a Special Accountant of the Alencode Pakuthy, Chirayinkil Taluk and was entrusted with the work of procuring paddy. In that capacity during the months of Makaram and Kumbhom 1124 he received from the Taluk Treasury at Attingal amounts aggregating to Rs. 2500 and the prosecution alleged several acts of embezzlement against him out of those amounts and out of the paddy purchased therewith. The specific case tried by the lower court related to a quantity of 45 paras and 2 edangalies of paddy out of a purchase of 60 paras from one Pathummal, the sister of one Mohammad Mustaffa who has been examined at the trial as Pw. 7. Agreeing with the opinion of the two assessors who assisted him at the trial, the learned Additional Sessions Judge of Trivandrum found that the accused had committed criminal breach of trust in respect of the said 45 paras and 2 edangalies of paddy and that with a view to conceal the misappropriation he had committed forgery and also falsified the accounts he was bound to maintain as Chief Accountant. He was accordingly convicted for the said offences and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.50 in respect of the charge under S. 409 IPC, to undergo rigorous imprisonment for a period of two years for committing forgery and to undergo similar imprisonment for a period of one year for falsification of accounts. In default of payment of the fine he was to undergo simple imprisonment for a further period of one month and as for the substantive terms of imprisonment the direction in the judgment was that these sentences should run concurrently. The appeal is against these convictions and sentences. 2. That during Makaram and Kumbhom 1124 the accused was the Chief Accountant to the Alencode Pakuthy appointed for procuring paddy and that during those months he was entrusted with Rs. 2500/-for the purpose of procuring paddy, are facts proved beyond doubt by the evidence of Pw. The appeal is against these convictions and sentences. 2. That during Makaram and Kumbhom 1124 the accused was the Chief Accountant to the Alencode Pakuthy appointed for procuring paddy and that during those months he was entrusted with Rs. 2500/-for the purpose of procuring paddy, are facts proved beyond doubt by the evidence of Pw. 4, the then Tahsildar of Chirayinkil and that of Pw. 1, the then Assistant Purchasing Officer. The accused did not dispute these facts. About the middle of Kumbhom Pw. 4 wanted the accused to hand over an amount of Rs.1000/- to the Special Accountant of the neighbouring Navaikulam Pakuthy, but the accused pleaded that he had purchased paddy for all the amounts entrusted to him and that he was therefore unable to make the payment as directed. The sum of Rs. 2500/- entrusted to him was made up of three amounts; Rs.500/- on 9.6.1124, Rs.1000/- on 25.6.1124 and a further sum of Rs. 1000/- on 8.7.1124. Since the first payment of Rs. 500/- the accused had not submitted any accounts to his superiors as enjoined by the rules and when it was reported that he had made purchases for all the amounts, Pw. 4 wanted Pw.1 to look into the matter and ascertain the true position. The enquiry Pw.1 made pursuant to the direction showed that the accused was not in a position to produce any accounts with respect to the transactions he had made with the amounts he had received or produce the balance cash in hand which according to his own admission came to Rs. 400/- or thereabouts. These facts appear from a statement (Ext. B) which the accused himself gave before Pw.1 on 17.7.1124. When the enquiry was pursued it was found that while according to the accused he had purchased 805 paras 2 edangalies of paddy, the stock under his custody came only to 760 paras and 3 edangalies and that out of the amounts entrusted Rs. 412 chs. 6 ca. 4 ought to have been with him as balance. He was not in a position to produce this until 22.7.1124. A third irregularity or fraud found was that out of the 24 purchases made during the period 24.6.1124 to 17.7.1124, the quantity shown in eleven counterfoils in the receipt book (Ext. 412 chs. 6 ca. 4 ought to have been with him as balance. He was not in a position to produce this until 22.7.1124. A third irregularity or fraud found was that out of the 24 purchases made during the period 24.6.1124 to 17.7.1124, the quantity shown in eleven counterfoils in the receipt book (Ext. A) maintained by the accused did not agree with the quantity shown in the receipts given to the parties from whom the purchases were made. In each case the quantity shown in the counterfoil was less than the quantity shown in the receipt. The sum total of the difference came to 165 paras and 4 edangalies. The value shown in each of these eleven counterfoils as having been paid is the value for the quantity mentioned there, but the respective receipts showed that value has been paid for the quantity as shown in them. Prima facie the parties obtained the value for the paddy sold by them, but the counterfoils, and as we shall presently see the Accounts maintained by the accused showed that only smaller quantities have been purchased from the respective parties. The obvious inference is that the accused must have been dealing with the excess paddy that came into his hands in the "black market", probably thinking that the value paid for such excess quantities could ultimately be made good to the State without the fraud coming to light. When Pw.1 acquainted Pw. 4 with the facts that had come to his notice during his enquiry, Pw. 4 sent a report (Ext. AF) to the police. This was on 5.8.1124. Pursuant to that report the police registered a case against the accused and on completion of their investigation laid a charge-sheet against him before the Stationary First Class Magistrate of Attingal accusing him of having committed the offences mentioned earlier. As early as 19.7.1124 Pw. 4 had placed the appellant under suspension and it would appear that thereafter he went into hiding. It was not until 28.10.1124 the police succeeded to apprehend him - vide Ext. AH. The case was registered as one for enquiry preliminary to committal and the enquiry would seem to have lasted well-nigh five years. The police jumbled together all the accusations into one charge. It was not until 28.10.1124 the police succeeded to apprehend him - vide Ext. AH. The case was registered as one for enquiry preliminary to committal and the enquiry would seem to have lasted well-nigh five years. The police jumbled together all the accusations into one charge. As per the charge framed by the learned Stationary First Class Magistrate the breach of trust related to the general deficiency of 44 paras and 9 edangalies of paddy found on verification of the stock. Obviously such a charge was open to exception in as much as Clause.(2) of S. 222 of the Criminal Procedure Code manifestly deals only with money. It had no application to any other property. The learned Additional Sessions Judge before whom the case came up for trial on committal understood the position correctly and he chose one specific item in respect of which the evidence in the committing court showed the accused had committed the offences aforesaid and accordingly limited the trial to the offences in respect of that specific item. 3. The facts relating to that specific item, with which alone we are concerned here are clearly set out in his judgment by the learned Additional Sessions Judge as follows: "The accused was a Special Accountant of the Alamcode Pakuthy, Chirayinkil Taluq, appointed for procuring paddy. He was entrusted with a sum of Rs. 2,500/- also for the above purpose. With the money so entrusted, the accused purchased 60 paras of paddy from one Pathummal, the sister of Pw. 7, but instead of crediting the whole quantity in the Government accounts, he credited only 14.8 paras and misappropriated the rest. In order to show that the quantity of paddy purchased from Pathummal was only 14.8 paras, in the counterfoil of the receipt issued to Pathummal he entered only 14.8 paras and the price for the same at Rs. 2 as 8 ps. 0 per para, i.e. Rs. 37 chs.18 cash 8, though the receipt issued to Pathummal was for 60 paras and the amount paid to her was Rs. 152 chs.19 cash 0. For the amount paid to the party a voucher had also to be obtained from the party as per the paddy procurement rules. On behalf of Pathummal, her brother Pw. 7 gave the accused a voucher also for the amount received, i.e., Rs. 152 chs.19 cash 0. 152 chs.19 cash 0. For the amount paid to the party a voucher had also to be obtained from the party as per the paddy procurement rules. On behalf of Pathummal, her brother Pw. 7 gave the accused a voucher also for the amount received, i.e., Rs. 152 chs.19 cash 0. That voucher was suppressed by the accused and in its place he fabricated another for Rs. 37 chs.18 cash 8 with the signature of Pw. 7 forged. In the Nalvazhi accounts also only 14.8 paras of paddy was shown as purchased". 4. Even though the learned judge limited the charge to the item referred to in the above extract, the evidence let in before the committing Magistrate in respect of nine similar instances was also allowed to be adduced before him. No objection was taken before the lower court regarding the admission of evidence relating to similar instances. The memorandum of appeal takes no exception to it nor was any point sought to be made in the arguments before us that such evidence ought not to have been admitted, much less that the accused suffered any prejudice thereby. 5. We shall now refer to the facts relating to the item covered by the charge to which the accused was called upon to plead at the trial. Ext. G is the receipt which the accused gave to Pathummal, the sister of Pw. 7 for the paddy he purchased from her on 9.7.1124. It shows that the quantity purchased was 60 paras of paddy and that its value at Rs. 21/2 per para, amounting to Rs. 152 chs.19 was paid to her. Pw. 7 who was acting on behalf of his sister in respect of the sale produced this receipt before Pw.1 on 25.7.1124 and he gave a statement (Ext. G(3)) on the self same date to the effect that he had actually measured out 60 paras of paddy and that he had received the value thereof as mentioned in Ext. G. His evidence at the trial was to the same effect. Corroborated as that evidence is by the statement, Ext. G(3) and as it conformed to the usual course of human conduct, we have no hesitation to agree with the lower court that that evidence is true and that the accused had as a matter of fact obtained 60 paras of paddy from Pw. Corroborated as that evidence is by the statement, Ext. G(3) and as it conformed to the usual course of human conduct, we have no hesitation to agree with the lower court that that evidence is true and that the accused had as a matter of fact obtained 60 paras of paddy from Pw. 7 and that he paid the value therefor to Pw. 7. The accused did not deny the genuineness of Ext. G. The counterfoil of Ext. G in the receipt book Ext. A, is Ext. G(1) and there what we find is that Pathummal sold only 14 paras and 8 edangalies of paddy for which she was paid Rs. 37 chs.18 ca. 8, i.e. at the rate of Rs. 21/2 per para. The entry in Ext. AD, the Nalvazhi maintained by the accused for paddy procurement, agrees with Ext. G(1) and not with Ext. G. Once it is found that Ext. G discloses the transaction as it actually took place between Pathummal on the one hand and the accused on the other, it becomes unmistakably clear that Ext. G(1) and the relative entry in Ext. AD were made with the dishonest purpose of covering the misappropriation of the difference of 45 paras and 2 edangalies of paddy made by the accused. He misappropriated it without bringing the same into the stock of paddy held on behalf of the State. Dishonest intent on the part of the accused is self-evident from the facts mentioned and the lower court rightly found that in respect of that paddy the accused was guilty of the offence under S. 409 I.P.C. The explanation offered by the accused that after receiving 14 paras and 8 edangalies of paddy from Pw. 7 and paying him the value therefor, he passed the receipt Ext. G to him with the idea of getting the whole quantity mentioned there, afterwards, is on the face of it false and unacceptable. He could not have handed over to Pw. 7 Ext. G unless he got the entire quantity of paddy mentioned there from him. Pw. 7 could not be expected to have parted with the 60 paras without obtaining the value therefor. 6. In this connection reference may also be made to some other documents. The accused would have it that when Ext. G was handed over to Pw. 7 he gave the accused in return Ext. Pw. 7 could not be expected to have parted with the 60 paras without obtaining the value therefor. 6. In this connection reference may also be made to some other documents. The accused would have it that when Ext. G was handed over to Pw. 7 he gave the accused in return Ext. G(2), a receipt purporting to have been signed by Pw. 7 conforming to the entries in the counterfoil receipt Ext. G(1) and the relative entry in Ext. AD. In other words the receipt is for having received Rs. 37 chs.18 ca. 8 towards the value of 14 paras and 8 edangalies of paddy sold on 9.7.1124. Pw. 7 denied having passed such a receipt. According to him he passed a receipt conforming with the entries in Ext. G. The body of Ext. G(2) is in the handwriting of the accused and we cannot find any reason to suspect the denial by Pw. 7 that Ext. G(2) is not a receipt passed by him. Even in Ext. G(3) he had said that the receipt he passed was one conforming to Ext. G and that he had not passed any other receipt. The lower court had held Ext. G(2) to be forgery and that as the body of it has been proved to have been in the handwriting of the accused, he is guilty of having forged it. We agree with that finding. 7. Two other receipts may also be referred to in this connection. One of them is Ext. AA, and it purports to have been passed by Pw. 7 a day previous to the sale and it contains an undertaking that the 60 paras of paddy measured out to the accused by the witness will be kept by him safe in his own custody. Pw. 7 has denied having given such a receipt and we are unable to understand how he could have given such a document even before the sale on 9.7.1124. It is difficult to reconcile such a document even with Exts. G(1) and AD. The other receipt is Ext. G(5) and Pw. 7 is alleged to have passed it to the accused to evidence the sale by Pathummal of 40 paras of paddy on 13.7.1124 and the receipt of the value of Rs. 101 chs. 22 thereafter. Pw. 7 again denied having given such a receipt. Counterfoil No. 21 in Ext. G(1) and AD. The other receipt is Ext. G(5) and Pw. 7 is alleged to have passed it to the accused to evidence the sale by Pathummal of 40 paras of paddy on 13.7.1124 and the receipt of the value of Rs. 101 chs. 22 thereafter. Pw. 7 again denied having given such a receipt. Counterfoil No. 21 in Ext. A, marked as Ext. G(4) purports to be the counterfoil of the receipt passed by the accused to Pathummal. Ext. G(4) shows that the original entry as to the name of the person who sold the paddy mentioned in it was that of somebody else and that it was after scoring out the original name that Pathummal's name was inserted. In this connection it may be mentioned that it was only on the second or the third day after Pw.1 commenced his enquiry that the accused gave Ext. A and the vouchers so far referred to and others to him. Ext. AD contains an entry that on the date of Ext. G(4), namely, 13.7.1124 Pathummal had sold 40 paras of paddy to the State and that she had been paid the value therefor. There was no attempt on the part of the defence to reconcile Exts. AA, G(4) or G(5) with the case the accused himself set up at the trial. In our view Exts. AA, G(4) and G(5) only show the frantic efforts made by the accused to conceal the fraud committed by him. 8. The learned counsel for the defence urged before us that assuming the whole prosecution case to be true, there cannot be a conviction for criminal breach of trust with respect to the paddy in as much as the accused was not entrusted with any paddy, but only the money to procure it. We shall presently deal with that aspect. Before that it might be pointed out that in entering the conviction under the counts of forgery and falsification of accounts the learned judge has gone beyond the charge he framed and to which the accused was called upon to plead. The charge is clear that the falsification of accounts mentioned related only to the counterfoil receipt Ext. G(1) and not to any other document. The charge is equally clear that the forgery levelled against the accused was only that relating to the receipt Ext. G(2). The charge is clear that the falsification of accounts mentioned related only to the counterfoil receipt Ext. G(1) and not to any other document. The charge is equally clear that the forgery levelled against the accused was only that relating to the receipt Ext. G(2). The penultimate paragraph of the judgment concludes thus: "So in having created Ext. G(1) counterfoil, Ext. G(2) voucher and Ext. AD Nalvazhi showing facts and figures different from those in Ext. G with the intention of defrauding the Government, the accused is guilty of the offences punishable under Ss. 469 and 480, T.P.C. corresponding to Ss. 467 and 477A, I.P.C. and in having misappropriated a portion of the paddy, i.e., 45.2 paras out of the 60 paras of paddy taken under Ext. G from Pathummal, the accused is guilty of the offence punishable under S. 410, T.P.C. corresponding to S. 409 I.P.C.". 9. The question whether the charge of forgery would stand in respect of Ext. G(1) and Ext. AD is debatable ground. We also fail to see how the charge of falsification of accounts can stand in respect of Ext. G(2). However for our present purpose it would suffice to point out that the falsification of accounts mentioned in the charge was in relation to Ext. G(1) alone and that the only forgery set out there was in respect of Ext. G(2). For reasons stated earlier we uphold the conviction for falsification of accounts in respect of Ext. G(1) and the conviction for forgery in respect of Ext. G(2). The other documents mentioned are relevant for the purpose of showing the accused's dishonest intent. 10. Now we come to the legal argument that in so far as the State or any of its employees had not entrusted the accused with paddy he could not have been convicted of criminal breach of trust in respect thereof. Admittedly he was entrusted with the money to procure paddy. The answer to the argument must depend upon whether the word "property" occurring in S. 405 I.P.C. can be interpreted to include the paddy purchased with the money he was entrusted with. In our considered opinion it should be so understood, particularly in view of the words "in any manner" occurring in the section. Decided cases support this construction. In Balthasar v. Emperor (1914 I.L.R. 41 Cal. In our considered opinion it should be so understood, particularly in view of the words "in any manner" occurring in the section. Decided cases support this construction. In Balthasar v. Emperor (1914 I.L.R. 41 Cal. 844) an auctioneer, who was entrusted with certain property for sale, was charged with criminal breach of trust with respect to that property, but was convicted of embezzling, not the property, but the amount obtained by dealing with it. While holding that on the charge framed the accused could not have been convicted of the embezzlement of money the learned judges said that in the context of that case it ought to be assumed that the word "property" in S. 405 includes the sale proceeds of the property entrusted to the accused. The prosecution in that case failed among another things for the reason that the charge was for embezzlement of the property and not of the sale proceeds thereof. In an earlier Calcutta case referred to in that decision, namely, Bipra Das Giri and another v. Niradamoni Bewa 12 C.W.N. at 577 a conviction for embezzlement of the proceeds of certain deeds was quashed and a retrial ordered on the ground that the charge was in respect of the deeds and not of the amounts obtained by dealing with those deeds. The decision therefore assumed that while the accused was entrusted with certain deeds to be applied in a specified manner, he could be proceeded against for committing breach of trust in respect of the proceeds therefor. 11. A third case we would refer here is the decision of Fawcett, Ag. C.J. and Mirsa, J. reported in Dwarkadas Haridas v. Emperor A.I.R. 1928 Bombay 521. In that case certain goods were entrusted to the accused and under the contract between him and the complainant he had to sell those goods and obtain money for them which he would hold on account of the complainant, subject to deduction of certain charges and it was held that when he received that money although he did not receive it actually from the complainant, "he was entrusted with it" within the meaning of S. 405. 12. In each of the three cases cited above the entrustment was of certain articles and the breach of trust related to the sale proceeds of those articles. 12. In each of the three cases cited above the entrustment was of certain articles and the breach of trust related to the sale proceeds of those articles. In the case in hand the reverse is the position i.e. the accused was entrusted with money and the breach of trust, is with respect to the goods procured with it. There cannot be any difference in the principle applicable to the present case and to the cases cited above. The following extract from the decision of Fawcett, Ag. C.J. in the case last mentioned may usefully be quoted here: "S. 405, I.P.C., which defines criminal breach of trust, is in very wide language, viz: Whoever being in any manner, entrusted with property, or with any dominion over property, dishonesty misappropriates or converts to his own use that property commits "criminal breach of trust". The words "in any manner" are noticeable, and III. (e) is to the point. A revenue officer is described as entrusted with public money, and under a duty to pay it into a Government treasury. In such a case Government does not actually hand over the money to the revenue officer but the revenue officer receives it from those who owe it to Government and pay it to him. In the same way here certain goods were entrusted to the accused, and under the contract between him and the complaint he had to sell those goods and obtain money for them which he would hold on account of the complainant, subject to deduction of certain charges. In my opinion, when he received that money, although he did not receive it actually from the complainant, he was "entrusted with" it, within the meaning of the definition; and if the section is read in that way, no difficulty whatever arises under S. 222(2) Crl. P.C. Mr. Coyajee for the applicant relied on Balthasar v. Emperor (1914) 41 Cal. 844 as an authority to the contrary. But it will be seen that the first paragraph of the headnote to that case is too wide and is not justified by the terms of the judgment. P.C. Mr. Coyajee for the applicant relied on Balthasar v. Emperor (1914) 41 Cal. 844 as an authority to the contrary. But it will be seen that the first paragraph of the headnote to that case is too wide and is not justified by the terms of the judgment. Their Lordships have not laid down that S. 405, I.P.C. does not cover misappropriation by a person of the sale proceeds of property entrusted to him; on the contrary, they say that it ought to be assumed that the word "property" in S. 405 includes the sale proceeds of goods entrusted to the accused. Nor does the second paragraph of the headnote apply to present case, for the accused was not charged with criminal breach of trust in respect of goods entrusted to him, but of such breach of trust in respect of a specific sum obtained by the sale of such goods". 13. In the light of these decisions we hold that the legal argument raised is without substance and we repel it. The accused has been rightly convicted of criminal breach of trust in respect of 40 paras and 8 Edangalies of paddy out of the 60 paras received from the hands of Pw. 7. Assuming the conviction for breach of trust cannot stand, there is nothing which prevents us from convicting the accused for criminal misappropriation in respect of that paddy. If authority be needed for the position, the Bombay case would answer for it. 14. The only question that remains to be considered is that relating to the sentence. The net result of the sentences passed by the lower court is that the accused has to undergo rigorous imprisonment for three years and pay a fine of Rs.50, and that in default of payment of the fine he has to undergo a further period of simple imprisonment for one month. The case started in 1124 i.e. more than 6 years ago, and the evidence shows that he has practically made good the money and paddy found to be in deficit on verification by the authorities. No doubt the deficit paddy happened to come into the custody of the State under strange circumstances. However, we consider that a term of 2 years' rigorous imprisonment together with a fine of Rs. No doubt the deficit paddy happened to come into the custody of the State under strange circumstances. However, we consider that a term of 2 years' rigorous imprisonment together with a fine of Rs. 50 imposed by the lower court would be adequate punishment for the offence under S. 409 I.P.C. and that in other respects the sentences passed and directions given by the lower court need not be interfered with. 15. We order accordingly and the appeal will stand dismissed subject to the above modification in the sentence. Dismissed.