Chowdhry, J. C.
1. This is a Government appeal under Section 417, Cr. P. Code, against the acquittal of one Mirza Hussain Beg by a first class Magistrate of Chamba of offences under Section 409, I. P. C. and Section 5(2), Prevention of Corruption Act, 1947.
2. The respondent was employed in Chamba Municipality as Octroi Inspector from 14-9-1950 to 3-4-1951, on which latter date he was suspended. The charge against him was that amounts aggregating Rs. 1,369/7/9 were received by him from Jagdish Chand (P. W. 13) of Messrs. Sri Kanth Chowfla and Sons of Chamba as octroi duty under 3 receipts dated 21-11-1950, 2-1-1951 and 19-2-1951 but not deposited by him into the treasury. In other words, he was charged with having committed criminal breach of trust in respect of the said amount covered by the 3 receipts. The learned Magistrate acquitted him holding that it was no part of his duty to receive the alleged payments, and that the payments in question had also not been proved.
3. There was an objection in the nature of a preliminary objection taken by the learned counsel for the respondent, namely, that the appeal was time barred. On the face of it the appeal was presented within the prescribed period of 6 months under Article 157 of the Limitation Act since it was filed on 23-8-1952 against a judgment dated 10-4-1952. The learned counsel referred to notification No. J.C.10(23)/49 dated 18-4-1949 and certain notes for guidance appended thereto. The notes do lend support to the contention that a period of 90 days would be the period of limitation for an appeal like the present, but the Judicial Commissioner had no jurisdiction to amend or repeal the provisions of Article 157, Limitation Act. The objection with regard to the appeal being time barred has therefore no force.
4. Coming to the merits of the appeal, the procedure with regard to payment of octroi duty has been described by the Secretary of Chamba Municipality, Bhisham Seth (P. W. 1). Octroi duty up to Rs. 2/- is payable at the octroi out posts and more than Rs. 2/- at the Head Office. In case of duty exceeding Rs. 2/- passes in form O 5 are issued from, the octroi out-post and payment is subsequently made at, or realized by, the Head Office on foot of those passes and a receipt in Order 4 form granted.
The correctness of the observation of the trying Magistrate that it was no part of the duty of the respondent as Octroi Inspector to receive octroi duty has not been challenged, but it was averred that in the present case the octroi duty in question covered by the 3 receipts was to fact received by him. An attempt was made by the said Jagdish Chand (P. W. 13) to show that on some former occasions also duty had been received by the respondent. Only one instance was however cited by him, an alleged payment of octroi duty on 21-2-1951 by cheque. Neither the cheque nor any other documentary evidence was however produced in support of the statement. It may be taken therefore that, so far as the octroi duty in question is concerned, a departure was made from the usual practice of making payment to the Clerk concerned at the Head Office. Why this was done has not been explained.
5. The above finding will, it is true, not affect the case very materially if the prosecution could otherwise prove satisfactorily actual payment ofthe octroi duty in question to the respondent. This onus, as the trying Magistrate has pointed out, the prosecution has failed to discharge. The learned Government Advocate relied upon the ledger and day books of Messrs. Sri Kanth Chow-fla and Sons. So far as the ledger is concerned, the criticism levelled against it by the trying Magistrate is certainly sufficient to condemn it. It has no entry from August 1947 to August 1950 when all of a sudden entries relating to the period in question (1950-51) crop up. It is somewhat surprising that the trying Magistrate did not deal with the day books although the material on record was equally damaging to these books of account as well.
Before I proceed to discuss the day books of the firm, I have to remark strongly against an extraordinary fact brought to my notice by the learned counsel for the respondent in the course of his arguments. Although it was specifically mentioned in the judgment of the trying Magistrate, dated 10-4-1952, that the account books of the firm were to be returned to the owners after the expiry of the period of appeal, and although, as adverted to above, the present appeal was filed well within limitation, the books of account were returned to the firm. What is more, there is neither an application for return of the books nor any order for their return nor any receipt in proof of their return. This presents a lamentable state of affairs in the office at least of this particular Court, and a copy of this judgment will be sent to the District Magistrate to look into the matter.
6. The extreme irregularity pointed out above in the matter of return of books of account of the firm in question was not without its repercussions. The learned counsel for the respondent drew my attention to the statement of Jagdish Chand himself in his cross-examination wherein he admitted that the day-book Ex. PS (which, incidentally, was the main day-book since it related to cigarettes and match boxes in respect of which the major portion of the octroi duty in question is said to have been paid to the respondent) was not paged and that the pages of the 'entire register' were torn and the book had no binding. When this book was produced before me yesterday (it having been produced by Jagdish Chand himself) the above description elicited in the cross-examination of the witness could not be applied to it: neither the pages were torn nor was the book unbound. And when this fact was pointed out yesterday, the learned Government Advocate did not repudiate the allegation.
Now, if the ledger produced is of the kind mentioned in the Magistrate's judgment and the daybook of the description contained in the admission of Jagdish Chand (P. W. 13) himself, there is only one remark that they merit: they are unworthy of credence. It may be stated further here that the entries in the books of account have also not been formally proved. All that Jagdish Chand says is that such and such entries appear in them and that the entries were either in his own writing or in the writing of 3 other persons mentioned by him. He does not further say as to who made the entries relevant to the present case. Nor does he say that, if the entries be in the handwriting of others, that they were either made in his presence or he recognised the writing of the person who made the entries. This latter objection is however only by the way; the main objection against the books of account of the said firm is the one mentioned before relating to their authenticity.
7. There is thus no corroboration of the 3 receipts Exs. PA, PB and PC under which the octroiduty in question is said to have been paid to therespondent. True, the respondent admits his signatures on these receipts, but he pleaded that theyhad been obtained from him by Jagdish Chand inthe month of April 1951 while he was in policecustody. The defence produced a witness, ShivLal (D. W. 3), who was also in the police lock upat the time, who supports the defence contentionregarding at least the visit of Jagdish Chand. Onevery strange circumstance, and a circumstancewhich again has not been explained, is that thesereceipts are on plain paper and not on the prescribed Order 4 form.
The explanation offered by Jagdish Chand (P. W. 13), namely, that Order 4 forms had exhausted, is on the face of it untrue, for the prosecution has also produced receipts Exs. PI and PJ which are on Order 4 form and in fact relate respectively to the payments evidenced by Exs. PC and PB. Furthermore, it is also significant that the entire writing, on all the 3 receipts Exs. PA, PB and PC, and even the dates on the first two underneath the respondent's signatures, are in the hand of Jagdish Chand. These are extremely suspicious circumstances, and if they may not go to the extent of actually establishing the correctness of the de-fence contention in regard to the 'circumstances' in which they are said to have been obtained from the respondent, they at least make the prosecution case extremely doubtful. And the benefit of that doubt must certainly go to the respondent.
8. Reference was also made by the learned Government Advocate to the circumstantial evidence as regards an alleged conduct of the respondent. It was sought to be shown that in the course of investigation Jagdish Chand (P. W. 13) and Bhola Ram (P. W. 3), a Municipal employee, were approached by and on behalf of the respondent to do away with certain documentary evidence implicating him. This evidence consisted of the statements of Jagdish Chand (P. W. 13), Mirza Mehboob Beg A. S. I. (P. W. 14) and Bhola Ram. (P. W. 3). The first-named professes to have been approached by one Sohan Lal on behalf of the respondent, but Sohan Lal has not been produced, and there is no explanation for the omission. So far as Jagdish Chand is concerned, it must have become evident from all that has been stated above that he is naturally most interested in the conviction of the respondent in order to escape blame of the octroi duty in question really not having been paid by the firm itself.
So far as A. S. I. Mehboob Beg is concerned, it is extremely strange, as would appear from a perusal of his statement, that he should have been a party, even though a passive observer, to the alleged approaches to Jagdish Chand. Such conduct is reprehensible in a police officer. He professes to have spoken about it to the then Superintendent of Police, but strangely enough he admits having made no mention of it to his immediate officer, the S. H. Order Obviously he could speak with impunity of having mentioned it to the S. P. because the S. P. was not a prosecution witness who might be cross-examined for the purpose of checking the veracity of the witness. Furthermore, of the 3 persons in whose presence Jagdish Chand has been stated by this witness to have been approached. Mohan Lal, Hari Ram and Bhagat Ram, the last 2 have not been produced and the first one was a defence witness who did not support Mehboob Beg's statement. As regards Bhola Ram (P. W. 3), he again is, like Mehboob Beg, the solitary witness who speaksabout the alleged approach to himself, and therefore the correctness of that statement was not capable of verification.
Naturally, when a party produces such solitary witnesses in respect of independent occurrences, their testimony has little evidentiary value, especially when, as in the case of Mehboob Beg, the other persons in whose presence the alleged occurrence is said to have taken place are withheld. It may further be stated here that the testimony of Jagdish Chand and Bhola Bam, both of whom profess to have been approached by the respondent, has to be discarded on the additional ground that no question was put to the respondent under Section 342, Cr. P. Code, in regard to the said incriminating evidence.
9. The learned Government Advocate further relied on the aforesaid receipts Exs. PI and PJ, and on the endorsement by the respondent on the invoice Ex. PV. As noted above, the receipts Exs. PI and PJ in form Order 4 purport respectively to relate to the octroi duty in respect of which the receipts on plain paper Exs. PC and PB were obtained. Question was put to the respondent only in respect of Ex. PI, and he has sufficiently explained it. He stated that he did sign this receipt but it was not issued, which naturally meant that payment was not made. That this explanation is worthy of acceptance is shown by the fact that this receipt, & for the matter of that the receipt Ex. PJ, were also not produced by the party in whose possession they should have been if they had in fact been issued, i.e., Jagdish Chand. It is said that these receipts were recovered from the house of the respondent in the course of a search.
Admittedly, however, the respondent was not present when the search was made, and no question was put to him under Section 342, Cr. P. Code, in order to give him an opportunity explaining the incriminating circumstance of alleged recovery of the receipts from his house. That being so, the prosecution evidence with regard to the alleged recovery of receipts from the house of the respondent must be discarded. For the same reason must also be discarded the receipt Ex. PJ. As regards the endorsement on the back of the invoice Ex. PV, it no doubt purports to be to the effect that octroi duty in respect of 840 boxes of cigarettes had been received by the respondent, but the respondent's explanation is that he did not actually receive the amount but only assessed the duty.
Irrespective of the value of the explanation offered by the respondent, it has not been shown that the endorsement in question relates to any of the amounts alleged to have been misappropriated by the respondent. In the circumstances, I agree with the trying Magistrate' in holding that payment of octroi duty to the respondent has not been proved beyond all reasonable doubt.
10. There is one aspect of the matter which has not at all been dealt with by the trying Magistrate, but which is equally damaging to the prosecution. It was pointed out to the learned Government Advocate in the course of his arguments that even supposing that the respondent was entrusted with the amounts in question, the prosecution had not proved that the same had been misappropriated by the respondent. Bhisham Seth (P. W. 1). Secretary of the Municipal Board, has given in detail the procedure with regard to receipt and deposit of octroi duty. He stated that the recipient of the duty pays it into the Municipal Head Office under a chalan in G 9 form, the Secretary signing one foil of that form and handing it over to the recipient in lieu of a receipt, and that thereafter the Secretary deposits it into the treasury under a chalan in G 8 form and at the same time makes an entry in respect of it in the daily cash book. The G 9 and G8 chalan books and the daily cash book of the Municipal Board were however not produced. In fact, no evidence whatsoever was led to show that the alleged amounts were not paid by the respondent (supposing he had actually received them) to the Secretary, and that the same had not subsequently been deposited by the Secretary into the treasury. The learned Government Advocate cited--'Harendra Kumar v. Emperor', AIR 1927 Cal 409 (A), in support of the argument that once the prosecution has proved the receipt by the accused of the several amounts in question, it is for the accused to show that he did not convert them to his own use in a case under Section 409, I. P. C. With all respect, I find myself unable to agree with the view expressed in the case. The ingredients of an offence under Section 405, I. P. C., as given in Rattan Lal and Dhirajlal's well-known book, the Law of Crimes, are the following:
1. Entrusting any person with property or with any dominion over property.
2. The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation-
(i) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of trust.
It is for the prosecution to prove each and every one of the above ingredients. That being so, it was for the prosecution in the present case to prove that the amount in question had been misappropriated by the respondent. This, as shown above, could have been done by leading evidence to the effect that after receiving the alleged payments the respondent did not hand them over to the Secretary and the Secretary in his turn did not deposit the same into the treasury. It was not incumbent upon the respondent to prove the opposite. Of course, onus of proof is a shifting entity, so that if the prosecution had led some evidence in support of non-payment of the amounts in question by the respondent to the pro-per authority, the burden would have shifted on to the respondent to rebut that evidence and to prove that he had in fact paid the amounts to that authority.
As adverted to above, however, no initial evidence whatsoever was led by the prosecution to prove misappropriation by the respondent. That being so, this important ingredient of the offence has not been established. I am supported in this view by--'Bhikchand Gangaram v. Emperor', AIR 1934 Sind 22 (B). It may be noted that that was a case where the onus of proving the said ingredient was held to lie on the prosecution even though the accused defendant himself by saying that he had made the amount over to the proper person. The present is therefore a stronger case because the respondent did not admit even receipt of the money. The learned Government Advocate referred to this circumstances of the respondent having denied receipt of the amounts in question, but that did not absolve the prosecution from proving the aforesaid ingredient.
11. For the above reasons I am of the view that the respondent was rightly acquitted, and that the present appeal is misconceived. It isaccordingly dismissed and the acquittal of therespondent is upheld.