JUGAL KRISHNA DEY SARKAR Vs. BWILCOX LTD

JUDGEMENT

(1.) This rule wag issued upon the Chief Presidency Magistrate and upon the complainant opposite party to show cause why the conviction and the sentence under Section 408, Penal Code, passed upon the petitioner should not be set aside. The case for the prosecution was as follows : The present petitioner was the chief shipping clerk of the complainant company. Under him were four jetty Sarkars. These jetty Sarkars were employed in clearing goods at the port. The petitioner used to advance money to the jetty Sarkars to enable them to clear the goods. For this purpose he used to draw money from time to time from the cashier of the complainant company on slips signed by him and countersigned by the Chief Accountant. At the end of each day, the jetty Sarkars would produce before the petitioner, the Port Commissioners receipts for the money expended by them and slips containing an account of the day's expenditure. The jetty Sarkars used to enter their expenditure in a book known as Landing Register. At the end of each day, they made over to the petitioner the slips and the Port Commissioners receipts, Landing Register and the balance of the money advanced to them. The accused prepared vouchers and at the end of each month submitted to the Chief Accountant the Port Commissioners receipts and the vouchers prepared and had his accounts passed. The case for the prosecution is that in the mon December, 1940 on different occasions, the details of which will be given later, the jetty Sarkars expended certain sums of money and obtained the Port Commissioners receipts for that expenditure. They made over the receipts to the petitioner. The petitioner without interfering in any way with the statement in words of the amounts in the receipts added the figure 1 before the statement in figures of the amount in the receipts and then in his accounts showed the amount expended as the amount so altered by him. It is further alleged that during the mon December, the sum of Rs. 8067 was drawn by the petitioner from the cashier for the purpose of expenditure on behalf of the firm and that out of this sum he misappropriated the sum of Rs. 400 during the month. The actual details of the alleged forgeries are as follows: On 18 December 1940 the amount actually spent by the jetty Sarkar and the amount for which Port Commissioner's receipt was obtained was Rupees 23-5-6. The accused forged this receipt by adding the figure 1 in front of Rs. 23-5-6 making the total in figure read Es. 123-5-6. On 20 December 1940 the amount spent by the jetty Sarkar was Rupees 52-6-9 and the receipt obtained from the Port Commissioners was a receipt for this amount. The accused forged this receipt by making the amount in figures read Rupees 152-6-9. On 28 December 1940 the amount spent was Es. 35. The accused forged the receipt in the same manner as in other cases making the amount in figures in the receipts read Rs. 135.

(2.) On these allegations the following charges were drawn up against the accused : (1) That you, on or about the 18th, 20 and 28 days respectively of December 1940 at Calcutta forged three documents to wit, three Port Commissioners receipts of those dates intending that they should be used for the purpose of cheating and thereby committed three offences punishable under Section 468, Indian Penal Code, and within my cognizance. (2) That you, between 2 December, 1940 to 30 December 1940 being a servant in the employment of Messrs. Babcock Wilcox Ltd., and in such capacity entrusted with certain property, to wit, Es. 8067 committed criminal breach of trust with respect to Rs. 400 out of the said property entrusted to you and thereby committed an offence punishable under Section 408, Indian Penal Code, and within my cognizance."

(3.) The petitioner was tried by a Presidency Magistrate of Calcutta. The learned Presidency Magistrate found that there was no sufficient evidence to prove that it was the petitioner who committed the forgery and he accordingly acquitted the petitioner of the charges under Section 468, Indian Penal Code. He found the petitioner guilty on the charge under Section 408, Indian Penal Code, and sentenced him under that section to undergo five months rigorous imprisonment and to pay a fine of Rs. 100 and in default to undergo further rigorous imprisonment of one month. The amount of fine, if realised, was to be paid to the complainant company as compensation. This rule was issued on two grounds only. The chief ground is as follows:?"For that the trial has been vitiated by misjoinder of charges. The conviction and sentences are accordingly illegal."