S PAKRASHI Vs. EMPEROR

JUDGEMENT

(1.) These are two appeals by S. Pakrashi and Dr. S. K. Banerjee against convictions recorded against them by the Fourth Presidency Magistrate of Calcutta under Secs.409 and 409/114, I.P.C. Under those convictions each of them has been sentenced to rigorous imprisonment for six months and a fine of Rs. 300 in default three months rigorous imprisonment. No separate sentence has been passed under Section 409/114, Indian Penal Code. It was further ordered that out of the fine, if paid, Rs. 197-14-6 be paid to the complainant.

(2.) Accused 1 is the managing director of the Ruby Bank Ltd., a concern which carried on business until about the middle of 1940 in Calcutta. Accused 2 is described as the manager of the Ruby Bank Ltd. The complainant is stated to be a ghee merchant who in April 1940 opened an account with the Ruby Bank Ltd., and deposited different sums of money with the bank amounting in all to Rs. 660. The account, it must be noted, was a current account, and the complain. ant previous to 8 May 1940 had withdrawn by cheque on various occasions sums amounting to Rs. 434.8.0. The withdrawals appear to have been made by means of cheques of the usual form issued by the Ruby Bank Ltd., to its customers. On 8 May 1940 the complainant drew a cheque on the Ruby Bank Ltd., for Rs. 197-14-6 in favour of Jaharmull Mathuradas. This cheque was deposited by Jaharmull Mathuradas with the Imperial Bank which presented it for payment to the Ruby Bank Ltd. on 8 May. The complainant at that time had at his credit in the Ruby Bank Limited a sum of Rs. 225-8-0, so that the cheque ought to have been paid. It was not paid, but was returned to those presenting it with a slip attached stating "returned unpaid for reason 18 " which was " please receive payment on Friday 17-5-40," signed by the manager of the branch concerned.

(3.) According to the evidence the cheque was presented subsequently on three occasions, but it was not presented on 17 May 1940. On 13 May 1940, these criminal proceedings were begun by the complainant with the result that the convictions mentioned above have been recorded against the accused. The evidence shows that the complainant had paid in the moneys stated above and drawn some out and that Rupees 225-8.0 was in his credit on 8th May 1940, but the bank had no money on that date; when on 9 July 1940, the police officer made an investigation the bank had still no money; it had closed its doors and they have remained closed. We are informed that the bank is a limited company but has not been wound up nor have any winding up proceedings been started. The learned Magistrate, in convicting the accused stated that when the Police Inspector called upon accused 1 in July the accused told him that he had no cash. Then said the Magistrate "This proves misappropriation." Section 409, Indian Penal Code, of which the accused have been convicted provides: Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property shall be punished, etc.