STATE OF ORISSA Vs. GANESH PRASAD DUTTA

JUDGEMENT

(1.) THIS is an appeal from an order of acquittal passed by the learned Magistrate, 1st Class Balasore, whereby he acquitted the accused respondent of a charge of alleged criminal breach of trust, as a public servant, under section 409, Indian Penal Code.

(2.) THE relevant facts, shortly stated, are these : In the year 1948 when Balasore was under Cuttack Judgeship, the then District Judge by his order dated April 17, 1948 appointed the Nazir, Munsif's Court, Bhadrak, as Receiver in Insolvency case No. 6 -B of 1946; since then whoever was Nazir of the said Court was Receiver; the accused respondent, who was a stenographer of the Additional District Judge, Balasore was appointed Nazir of Munsif's Court, Bhadrak and in the said capacity was the Nazir till February 16, 1957, when he handed over charge of his office as Nazir to his successor one Brajasundar Pati, consequent upon his transfer to Balasore. In course of his term of office as Nazir, the accused respondent sold certain properties of the insolvent as Receiver and thereby realised a sum of Rs. 1500/ -; the Receiver did not credit the amount in the General Cash Book; in fact, the Receiver was approached for payment of the said sum of Rs. 1500/ - but he evaded payment on some pretext or other. The prosecution case is that on February 16, 1957, when the Receiver made over charge to his successor as aforesaid the accused respondent did not make over the said amount. In 1958, a demand was made on the accused respondent for payment of the money and he was asked to deposit the amount; thereupon, the accused respondent wanted time for payment and he could deposit a sum of Rs. 150/ - only within the time allowed but failed to deposit the balance. On these facts the then District Judge, Mayurbhanj, Sri R. C. Misra wrote to the Superintendent of Police, Balasore, a letter, requesting him that necessary steps may be taken against the accused respondent for defalcation, made by the accused respondent, on the facts and circumstances stated in his letter. Thereafter, the Nazir was, in due course, sent up for trial for criminal breach of trust, as a public servant under Section 409 Indian Penal Code and the learned Magistrate acquitted him of the charge as aforesaid. Hence this Government Appeal against the said order of acquittal.

(3.) THE position of a Receiver in insolvency is that of a trustee; he does not become absolute owner of the property of the insolvent which is vested in him under the law for certain specific purpose. The learned Government Advocate, in support of the appeal, submitted that it is not the position in law that because a civil liability it provided for under Section 56 of the Provincial Insolvency Act, criminal liability under the Indian Penal Code is therefore barred; that in the present case, apparently, the learned Magistrate was wrong in taking the view that the Receiver in insolvency could not be made criminally liable.