AKSHOY CHANDRA BOSE Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from a conviction and sentence of the learned Chief Presidency Magistrate, Calcutta. The appellant, an Attorney-at-law, a member of the firm of Messrs. N.C. Bose and Co., was tried for the commission of the offence of criminal breach of trust as an attorney in respect of money entrusted to him. The prosecution was started on a petition of complaint filed by Mr. A.L. Collect, Registrar of this Court, in its Original Jurisdiction, in pursuance of a direction of a Special Bench of this Court, given Under Section 476, Criminal P.C., relating to an offence of the following description: That the accused had been paid the sum of Rs. 16,500 by Gouri Shankar Tiberwalla and Fulchand Tiberwalla, on 30 September 1932, for the purpose of depositing the same in Court, in connexion with the sale of a house in Calcutta by the Registrar, in the Original Side, at which the aforesaid two persons were the purchasers. That the accused had failed to deposit the said sum of money, and upon the aforesaid persons Gouri Shankar Tiberwalla and Fulchand Tiberwalla calling upon the accused to explain, he was unable to give any explanation, and informed them that he was not in a position to pay the money to them immediately. That the accused had dishonestly misappropriated or converted to his own use, the said sum of Rs. 16,500, and two other sums of Rs. 5,500 and Rs. 1,220, and that he had tampered with a sworn affidavit intended to be filed in this Court.

(2.) The charge framed by the Magistrate, Under Section 409, I.P.C., which the appellant had to meet, related to the aforesaid sums of money admittedly received by him; the amount of Rs. 16,500 having been received from his clients aforesaid, on 30 September 1932, and the sum of Rs. 6,720, the proceeds of a cheque, which was made over to the appellant on 22nd February 1933, by the Registrar, High Court, Original Side. The appellant was charged with criminally misappropriating and converting to his own use, the aforesaid sums of money. There was no charge framed with regard to the other allegation made against the appellant, of his having tampered with a sworn affidavit. The learned Chief Presidency Magistrate has, upon the material placed before him, found the appellant guilty under both the counts mentioned in the charge framed against him, Under Section 409, I.P.C. The findings of the Magistrate on the material questions arising for consideration in the case, are all against the appellant, who has been sentenced to three months rigorous imprisonment and a fine of Rs. 1,000 in default three months rigorous imprisonment, on the first charge; no separate sentence was passed on the second charge. (After discussing the prosecution and defence evidence, his Lordship proceeded.) The position, therefore upon the entire evidence in the case before us, is that the appellant retained the amount of Rs. 16,500, belonging to his clients which was entrusted to him for a certain purpose; the money was retained for a considerable period of time, and the clients were led to believe that their money was lying in deposit in Court furthermore, the money retained by the appellant was utilised for his own purpose, without the knowledge and consent of his clients. The amount of Rs. 6,720 was also retained by the appellant from 22nd February 1933, till 20 June 1933, without the knowledge of the clients; it was being utilised for the appellants own purposes. As has been stated already, the story of permission to utilise any of these sums for his use, has not been made out, by evidence on the side of the defence.

(3.) It may be stated here that the prosecution having succeeded in the case before us, in proving the receipt of money for a particular purpose, the case of entrustment having been made out, it was for the appellant to make out his defence as set out in his written statement filed in Court, that he had not utilised them to his purpose, without the express consent and permission of the persons by whom or on whose behalf there was entrustment. The defence of the appellant that there was permission or consent to utilise the money entrusted for his own purpose has been found to be untrue.