ANDREW Vs. STATE

JUDGEMENT

(1.) The 1st accused in P.E. No. 13 of 1122 of the Moovattupuzha Stationary First Class Magistrate's Court is the Revision Petitioner in Criminal Revision Petition No. 145 of 1125 and the 2nd accused in that case is the Revision Petitioner in Criminal Revision Petition No. 170 of 1125. The accused are charged with offences punishable under Ss.410 and 469 of the Travancore Penal Code corresponding to Ss.409 and 467 of the Indian Penal Code. The prosecution case is as follows:

(2.) The 1st accused was a license holder for the purchase of paddy on behalf of Government from the landholders of Moovattupuzha and Kothamangalam Pakuthies in the year 1121. He was supplied with printed triplicate receipts by the Taluq Office, one of which was to be given to the seller of paddy, one to be sent to the Taluq Office and the other to be kept with the licensee. The 1st accused entrusted the 2nd accused with the work of purchasing paddy and issuing receipts therefor. It is alleged that the 2nd accused got 25 paras of paddy from PW 1 on 20-8-1121 and gave Ext. A receipt for the same. But the quantity of paddy shown in the counterfoil sent to the Taluk Office and in the duplicate kept by the licensee was only 4 paras. That was the quantity that was entered in the Nalvazhi Register of the 1st accused also. When this fraud was detected by the Special Proverthicar one Lobha an associate of the accused got Ext. A receipt from PW 1 and the 2nd accused corrected the entry therein so that it might tally with the counterfoil. A similar fraud was practised in the purchase of paddy from PW 10 also. Exts. D and E are receipts issued to PW 10 by the 2nd accused. They do not tally with Exts. J and K counterfoils and Ext. T(3) entry in the Nalvazhi and Ext. U(1) entry in the Ara Register. 11 witnesses were examined for the prosecution and Exts. A1 to U2 were filed. Finding that a prima facie case was made out against the accused the learned First Class Magistrate framed a charge against them under Ss.410 and 469, T.P.C. for criminal breach of trust and forgery and committed them to the Sessions Court of Parur to stand their trial for the said offences. The Revision Petitions are filed from this order of commitment.

(3.) The contention raised by the 1st accused in Criminal Revision Petition No. 145 of 1125 is that no case has been made out against him and that the learned Magistrate has gone wrong in committing him to the Sessions Court. I think that this contention is well founded. There is absolutely no evidence in the case to show that the 1st accused was a party to the offences of criminal breach of trust and forgery alleged to have been committed by the 2nd accused or that he abetted the commission of these offences. None of the witnesses examined by the prosecution swears to the feet that the 1st accused was present when paddy was purchased by the 2nd accused from PW 1 and PW 10 and when receipts were given to them by the 2nd accused. It is also not sworn to by any witness that the 1st accused had anything to do with the correction of Ext. A receipt by the 2nd accused. There is also no evidence in the case to the effect that the 1st accused was aware of the commission of these offences by the 2nd accused or that he had reason to suspect that the. 2nd accused committed these offences. The mere fact that the 2nd accused was employed by the 1st accused for purchasing paddy and issuing receipts cannot make the 1st accused vicariously liable for the offences committed by the 2nd accused in the course of his employment. The 1st accused may be answerable to Government for the misappropriation of paddy committed by the 2nd accused, but that does not mean that he will be criminally liable for the offences committed by his employee. According to the definition of the offence of criminal breach of trust the 1st accused will be criminally liable for the offence of the 2nd accused only if it is proved that he 'wilfully' suffered the 2nd accused to commit the offence. So long as there is nothing to show in this case that the 1st accused wilfully allowed the 2nd accused to commit the offence of dishonestly misappropriating paddy it cannot be said that the 1st accused has committed the offence of criminal breach of trust.