KESHABDEO BAGAT Vs. EMPEROR

JUDGEMENT

(1.) The two appellants in the two appeals, No. 407 of 1942 and 409 of 1942 which have been heard together, were tried at one trial before one of the Honorary Presidency Magistrates of Calcutta. There was one joint charge against both the appellants under Section 120B read with Secs.408 and 414 for having, between March 1940 a June, 1940, conspired with one Lal Chand to commit offences under Secs.408 and 414, Indian Penal Code. There were eight separate charges (a) to (h) under Section 408 read with Section 109, Indian Penal Code, for having aided and abetted Lal Chand to commit criminal breach of trust as servant in respect of eight several cheques entrusted to Lal Chand by the complainant's firm of Sohon Lal Mohon Lal and yet another eight separate charges (i) to (p) under Section 414 read with Section 109, Penal Code, for having voluntarily assisted in the disposal of stolen property, to wit the same eight cheques belonging to the complainant knowing or having reason to believe the same to be stolen property. The charges (a) and (i) were directed against the appellant Keshabdeo and the charges (b) to (h) and (j) to (p) concerned the appellant Harnandan. The prosecution out of which the present appeals have arisen was initiated by a petition of complaint (Ex. 62) filed on 13 July 1942 before the Additional Chief Presidency Magistrate by one Mohon Lal Banthia on behalf of Sohan Lal Mohon Lal of No. 14/2, Old China Bazar Street, Calcutta, against three persons, namely, Lal Chand, Harnandan and Keshabdeo. The substance of this petition of complaint was as follows: The complainant was the proprietor of the firm of Sohon Lal Mohon Lal. Lal Chand was the cashier of his firm and Harnandan and Keshabdeo were friends of Lal Chand. Lal Chand used to keep books of accounts, receive money from the different constituents of the firm and sent them to the firm's bankers, viz. Yokohama Specie Bank and Mercantile Bank of India, after duly crediting such sums in the books of account of the firm. On 28 June 1940 the complainant found certain discrepancies in the cash book and called for an explanation from Lal Chand but the latter could not give any satisfactory explanation. Complainant thereupon asked Lal Chand to come early on the next day for verification of the entries in the cash book. On coming to the office next morning (29 June 1940), which was a Saturday, the complainant, to his utter surprise, found one table and some books and papers burnt to ashes and the cash books and suspense book missing. On enquiry he learnt from the Darwan of the landlord that he had seen Lal Chand going out of the office on the previous night with a bundle. Lal Chand not having turned up in the office the complainant sent his Darwan to Lal Chand's place to fetch him. The Darwan came back and reported that Lal Chand was unwell and would be late in coming to office. At the end of the day Lal Chand came and on being questioned denied any knowledge of the fire but admitted having taken the cash book and suspense account book for checking and promised to bring them on Monday (1 July 1940). On Monday Lal Chand did not turn up. The complainant became suspicious and sent his manager Kanyalal to bring the books and to ask Lal Chand to come to the office at once. Kanyalal came back and reported that neither the books nor Lal Chand could be found. Lal Chand has ever since remained absconding. The complainant grew more suspicious and on enquiry from different constituents and banks, found that Lal Chand had defalcated large sums of money having been aided and abetted by Harnandan and Keshabdeo who often used to come to the complainant's office. Particulars of four several items of defalcation of moneys covered by four several cheques to which I shall revert later on were set out in para. 10 of this petition. It was alleged that the complainant had been credibly informed that Keshabdeo had received several cheques amounting to about us. 11,000 from Lal Chand and converted the same. The petition concluded by saying that investigations were still being made and by reserving the right to proceed against the accused persons. The prayer of the petition was as follows: In the circumstances the petitioner charges the accused under Secs.408, 477A and 109, Indian Penal Code, and prays for process and search warrant for the cash books, suspense book of the firm and also for the cash book and ledger for 1939-1940 of the firm of Ranadhir Kumar Singh & Co., of which accused 3 is a partner and also an order upon the Bank of Behar Ltd., not to allow anybody to operate on the account of Harnandan Singh Sharma accused 2.

(2.) On the filing of the petition on 13 July 1940, summons was issued against Lal Chand only and a search warrant was issued for seizing the books of account of Ranadhir Kumar Singh and Co. On 15 July 1940 a petition (EX. 58) was put in on behalf of Ranadhir Kumar Singh and Co, Ltd., praying for stay of execution of the search warrant and offering to produce the account books when called upon. This undertaking was accepted by the Court. The books of account were produced by Ranadhir Kumar Singh and Co. Ltd., and were inspected by the complainant on several dates from 18 July 1940. On 29 July 1940 the complainant filed a second petition of complaint which is Ex. 63 in this case. After stating that on 13 July 1940 process had been issued against all the accused (which is not correct, for process had been issued only against Lal Chand) and after reciting that further materials had been secured on further enquiries the complainant proceeded to state that the cheque (EX. 6) for Rs. 2000 drawn by Tarasankar Karfa and brothers in favour of the complainant's firm, though duly endorsed for being credited in that firm's banking account, was dishonestly again endorsed by Lal Chand and cashed through the Central Bank (Burra Bazar Branch) and credited in the account of Keshabdeo as having been received from Lal Chand through Harnandan who was the brother of the partner of Keshabdeo. The complainant alleged that Keshabdeo who was a constant visitor to the firm of the complainant knew that Lal Chand was getting a pay of Rs. 30 per month and could not possibly get a cheque for Rs. 2000 from the complainant's firm. He further alleged that Harnandan was only an honorary Music Master in a so-called Club, Bhartiya Seva Sadan at No. 31, Burtola Street of which Lal Chand and Keshabdeo were members and that Lal Chand lived there with Harnandan who had no other means. The complainant asserted that the three accused persons, who were thus closely related or intimately associated, were between March 1940 a June, 1940, parties to a criminal conspiracy and in pursuance thereof systematically committed offences of criminal breach of trust and receiving stolen property as would appear from the cheques, the banking account and account books of Keshabdeo's firm. He pointed out that immediately after the cheques began to be misappropriated Lal Chand opened an account in his name in the books of Keshabdeo's firm in which he, Lal Chand, between 30 March 1940 and 30 April 1940 deposited an aggregate sum of Rs. 3550 by cheque and cash direct or through Harnandan and likewise withdrew various sums.

(3.) The complainant then proceeded to state that Harnandan opened an account with Bank of Behar in his own name for the first time in April 1940 and Lal Chand dishonestly made over, amongst others, 7 (seven) cheques for the aggregate amount of Rs. 8116-2-6 received by him on account of the complainant's firm to Harnandan who cashed them through this newly opened account with Bank of Behar. The particulars of the 7 (seven) cheques were then set out in a tabular form and it was alleged that Rs. 8116-2-6 was criminally misappropriated, Lal Chand dishonestly making over the cheques to Harnandan and Haranandan dishonestly receiving and cashing the same. Finally it was alleged that not only did Keshabdeo knowingly receive this misappropriated cheque for Rs. 2000 but he opened an account in the name of his partners brother Haranandan and in that account received from Haranandan Rs. 3000 on 10 May 1940 and Es. 800 on 21 May 1940 although he knew fully that Harnandan could not possibly own the money and could not have a banking account. This petition then ended with the following prayer: In the circumstances it is prayed that your honour would be pleased to issue process against accused 2 and 3 under Section 120B read with Secs.408 and 411, Indian Penal Code, and treat this petition as part of the original complaint filed by your petitioner on 13 July 1940.