EMPEROR Vs. CHATURBHUJ NARAIN CHOUDHURY

JUDGEMENT

(1.) This is an appeal by Government against the judgment and order of the Deputy Magistrate, Darbhanga, acquitting the accused Babu Chaturbhuj Narain Choudhury, pleader, on a charge of an offence punishable under Section 409, I.P.C, which was to the effect that he, between 21 March and 27 March 1934, being an agent for the Maharajadhiraj of Darbhanga, had committed criminal breach of trust by misappropriating Rs. 5,689-7-6, money belonging to his employer consisting of decretal amounts withdrawn from the Munsif's Court in Darbhanga and decretal money and unused for rents realized from tenant defendants or judgment debtors and the balance of unspent law advances. The judgment of the Magistrate opens with a clear statement of the facts. He has correctly recited the duties of the accused as Raj pleader from which recital it is perfectly clear that the moneys received by him in the course of his employment were so received in the capacity of an agent. He was discharged from the service of the Raj on 20 March 1934. He submitted his accounts within the next few days, and according to those accounts there was a balance of Rs. 5,689.7.6 due to the Raj. He has not paid any part of this amount in spite of repeated demands. The allegation therefore is that as an agent he was guilty of an offence under Section 409, I.P.C.

(2.) The accused admits withholding the money. He says in his written statement "the money on account is lying with me to the credit of the Raj." He says that he was ready to pay up the balance in hand, but was advised not to pay because the Raj would not finally accept his account as correct and would not dispose of his claims (for election expenses and some other items), therefore he says he withheld the money to compel the Raj to go to the civil Court so that the accused's due may be judicially recognised and adjusted and at the same time the accounts of the accused may be judicially pronounced to be correct so that the accused may be freed from all future troubles.

(3.) The Magistrate thought that the accused had claims which justified him in withholding the money and has acquitted him. In appeal it is said that the Magistrate has proceeded on a wrong view of law and that the claims which accused might have against the Raj could not in any case amount to more than a few hundred rupees which could not justify him in withholding payment of over five thousand rupees. It is contended that this withholding of the money is itself sufficient to establish the offence charged. The correspondence will not support the inference which the Magistrate has based on it. Before examining the facts it will be well to make it quite clear what the prosecution has to prove in a case of this nature. The English law is thus stated in Halsbury's Laws of England: Vol. 9, Part 13, para. 892: The crime of embezzlement is complete when the servant fraudulently misappropriates the property, and he is not necessarily entitled to be acquitted because he has made true and correct entries in his master's accounts. But if the money received for the employer is accounted for and not denied, the fact of not paying it over without some evidence of fraudulent intent is not sufficient proof of the felony. If the prisoner does not deny the receipt or appropriation of property which he is accused of embezzling, but acknowledges that he received it and alleges a right or an excuse for detaining the property, unless it is clear that such allegation is merely a pretence, he ought not to be convicted of embezzlement.