ABDUS SALAM Vs. EMPEROR

JUDGEMENT

(1.) The petitioner Abdus Salam has been convicted under Section 409, Penal Code, and his conviction upheld on appeal by the Sessions Judge in the following circumstances: The petitioner was Money Suit Moharrir in the Court of the Second Munsif at Monghyr. There was suspicion of serious malpractices in the Court- offices of Monghyr, and on 2 May, 1935 an attempt was made to expose them by catching an offender in the act. For this purpose Janki Prasad was deputed as spy and a raid was made at 3-45 p.m., by the police officers accompanied by Mr. Madan, the District Judge, with the result that it was found that Janki had got possession of a record from which he was making a copy. He is said to have obtained it by making payment to an outsider Mathura Prasad in whose possession a marked rupee was found. Another outsider Parmeshwari was also present in the office--so was the Sheristadar,--but the present petitioner was absent. The keys of the Money Suit almirah which ought to have been in the custody of the petitioner were found with Mathura Prasad. It is perfectly clear on the evidence that access to a Court-record was corruptly given to Janki Prasad. It is fairly clear that the person who directly gave him access to the record was Mathura Prasad, and Mathura Prasad was able to do this because he had the keys which it was the duty of the petitioner to keep in his own possession for the safe custody of the records entrusted to him. The explanation offered by the petitioner was that on that day he had to leave office at 11-30 because he had been asked by the Munsif to send off a money-order. He did so leaving the keys on the table in front of the Sheristadar.

(2.) The Courts below have not accepted this explanation. The Magistrate said "until the contrary is proved, the natural presumption is that Salam gave the keys to Mathura." This is not quite a correct statement of the presumption to be drawn in a criminal prosecution. The accused being entitled to the presumption of innocence, the presumption will be that if the facts will bear an explanation compatible with his innocence, that view should be adopted unless it is proved to be false, but if the circumstances are such that only one inference can follow in the mind of any reasonable man in such a case, there can be a conviction. The accused gave an explanation of his reason for leaving the keys on the table of the Sheristadar which the Magistrate has found to be entirely false. The explanation is that the bunch contained also the key of the outer door of the room in which the Sheristadar and others were working. In fact the Munsif's standing orders were that the key of the outer door was to be in the custody of another clerk named Ahsan. Of course if the accused had left the keys through negligence or forgetfulness he would not be criminally liable. But he has not pleaded negligence or forgetfulness. It is his own case that the key was intentionally left behind, though he does not admit it was done with a corrupt purpose. The inference is almost irresistible that the accused gave a false explanation of not having the keys in his own possession because no true explanation consistent with his innocence was available to him. I am of opinion that although it cannot be established by positive and direct evidence that the keys were made over by the petitioner to Mathura Prasad, there is no room to doubt that the keys were in Mathura Prasad's possession with the connivance and complicity of the accused for the purpose for which they were used, that is to say, for giving access corruptly to records.

(3.) It is contended that the accused did not himself misappropriate or use or dispose of any record in violation of his trust and therefore should not be convicted of criminal breach of trust and reference is made to Dhanpat Singh V/s. Emperor 1917 Pat 625. That was a case in which no question of dishonesty, that is to say, of corrupt use for the purpose of making profit arose at all. The dishonesty appears to be clearly established in the present case. As for the record not having been used by the petitioner himself, this point is answered by the second part of the definition in Section 406 which makes it an offence wilfully to suffer any other person to use or dispose of the trust property. There is no doubt that the record was being used when it was in the hands of Janki Prasad and being copied. I am of opinion therefore that the conviction of the petitioner under Section 409, I.P.C., was correct and there is no reason for interference in revision. The rule is discharged.