Queen-empress Vs. Kellie - Court Judgment

Excerpt:
act no. xlv of 1860 (indian penal code), section 409 - criminal breach of trust--conviction for criminal breach of trust on general deficiency in account. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 1. the case for the petitioner has been well argued by mr. the main ground relied on by the earned counsel for the petitioner is that a conviction for criminal breach of trust on a general balance of account is bad in law. some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen. 'i think that the offence is sufficiently made out, within the meaning of the statute, if the jury are satisfied that the prisoner received in the aggregate the amount with which he appears to have charged himself and that he absconded or refused, when called upon, to account, leaving a portion of the gross sum deficient. there would be constant failure of justice if i were to decide otherwise, since it is impossible in cases like the present, where a number of different amounts of money have been received, to specify which sum or sums or the part of which sum or sums have been embezzled. , result in a 'constant failure of justice.aikman, j.1. the case for the petitioner has been well argued by mr. ross alston. the main ground relied on by the earned counsel for the petitioner is that a conviction for criminal breach of trust on a general balance of account is bad in law.2. in support of this he referred to reg. v. lloyd jones 8 c. and p. 5488. in that case aldbbson, b., observed: 'it is not sufficient to prove at the trial a general deficiency in account. some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen.' the cases of reg. v. chapman 119 and k., 119, and reg. v. wolstenholme 11 cox. or. ca. 313, were also relied upon.3. the propriety of these rulings has been doubted even in england. with reference to the ruling in reg. v. lloyd jones, the following remarks are made in roscoe's criminal evidence, 10th edition, page 477: 'when a person is employed in the receipt and payment of money, it is almost impossible to prove anything more than a deficiency in account, and if the words of alderson, b, in reg. v. jones 8 c. and p. 288, were to be taken in their strict sense, it would be impossible ever to procure a conviction for embezzlement when there were running accounts between the parties.' and the author goes on to suggest that there was in the case referred to some misapprehension of the principles of law applicable to the question. i would also refer to the case of the queen v. lambert 2 cox. cr. ca. 309, decided in 1847. in that case, when the cash in the hands of the accused, an employ in the customs department, was checked, it was found to be short by 270 of the amount which, according to his hooks, ought to have been in his possession. the accused had by virtue of his employment both to receive and pay away money on account of government. it was contended on his behalf that the charge could not be supported in the absence of evidence to prove the appropriation of any particular sum from any one person. erle, j., said: 'i think that the offence is sufficiently made out, within the meaning of the statute, if the jury are satisfied that the prisoner received in the aggregate the amount with which he appears to have charged himself and that he absconded or refused, when called upon, to account, leaving a portion of the gross sum deficient. there would be constant failure of justice if i were to decide otherwise, since it is impossible in cases like the present, where a number of different amounts of money have been received, to specify which sum or sums or the part of which sum or sums have been embezzled.'4. but, be the law in england what it may, i have no hesitation in holding that, according to indian law, an accused person may be charged with criminal breach of trust in respect of a general deficiency, and that it is not necessary in all cases to charge the accused with the embezzlement of a particular sum received on a certain date from some particular person. it is enough if the accused person has sufficient notice of the accusation he has to meet, and that he had in the present instance.5. to hold otherwise would, to use the words of ekle, j., result in a 'constant failure of justice.' it was further argued by the earned counsel for the petitioner, on the strength of the ruling in the case rex v. edward hodgson 3 c. and p. 422, that, as the prisoner's accounts were not shown to be incorrect, there was therefore no embezzlement, but merely a default of pafment. bat it is not in respect of accounts that a charge is made in such cases; it is in respect of the disappearance of a certain sum of money. the accounts max be kept in a faultless manner whilst peculation is going on; on the other hand, it is possible to imagine that accounts may be kept in a slovenly manner and that there may be many omissions in them, even whilst any suspicion of dishonesty is negatived. in the case referred to by the earned counsel it was said: 'if the prisoner regularly admits the receipt of the money, the mere fact of not paying it over is not felony. it is but matter of account.' in this case, however, there was something more than the mere fact of not paying over the balance.6. it appears from the evidence of mr. tilemann and mr. sonderegger that when questioned as to this deficiency kellie admitted that be had taken the money, and their evidence is borne out by the terms of a letter (exhibit g) written by kellie to mr. sonderegger on the 30th of august 1894.7. the learned counsel for the applicant also addressed the court in mitigation of sentence. the punishment which has been sustained was a sentence of two years' rigorous imprisonment. having regard to the circumstances of the case, i am of opinion that this punishment was not a bit too severe. this was not the case of an employe yielding on a solitary occasion to temptation. a large amount was embezzled, and it appears from the evidence of mr. sonderegger that kellie admitted that peculation had been going on for some eighteen months. the nature of the defence set up by the applicant does not tell in his favour, as it amounted to an insinuation that the missing amount had been taken by messrs. tilemann and sonderegger, an insinuation which i concur with the lower courts in thinking to be baseless.8. for the above reasons i reject the application and direct that the records be returned.