BINDESHWARI PRASAD JAYSAWAL Vs. EMPEROR

JUDGEMENT

(1.) Petitioner, Bindeshwari Prasad Jaysawal, was tried by a first class Magistrate on a charge under Section 409, Indian Penal Code, and on conviction was sentenced to rigorous imprisonment for one and a half year. He was also sentenced to pay a fine of Rs. 600 with rigorous imprisonment for four months, in default. He preferred an appeal against his conviction and sentence, and the appeal was heard by the second Additional Sessions Judge of Patna, who by his judgment dated 5th August 1946, dismissed the appeal. The petitioner then came up in revision and his application was admitted by this Court on 27 September 1946, The Bench admitting the application directed the petitioner to be released on bail to the satisfaction of the District Magistrate, but at the same time issued a rule for enhancement of the sentence. Thus, although it is a criminal revision, it has been argued as if it was an appeal.

(2.) The fact a of the case are not many, and they may be stated within a brief compass as follows: The petitioner filed an application before the Sub-divisional Magistrate of Dina-pore to be appointed a Government stockist of food grains: vide EX. 43. This was some time in 1943. Bhagwan Das, the deceased grand- father of the petitioner, had a firm dealing in grains. This firm which went by the name of Dukhitlal Bhagwan Das, was not in a flourishing condition after the death of Bhagwan Das. The father of the petitioner pre-deceased Bhagwan Das, and the family being in a rather straitened circumstance the petitioner filed the application in question before the Sub-divisional Magistrate with a prayer that he and his brother might be appointed Government stockist so that they might regain their lost trade. The Sub-divisional Magistrate called for a report from the police and thereafter issued an order making the firm of Dukhitlal Bhagwan Das Government stockist of food grains. The firm, it may be mentioned, was a joint family concern of the petitioner and his brother. The petitioner being the elder of the two male members was in charge of the firm. After the application, Exhibit 43, had been allowed by the Sub-divisional Magistrate, supply of grains began to be made to the firm. According to the practice then prevailing sometimes supplies of food grains were received from other firms located in the same town, and sometimes from out stations. A large quantity of food grains had been stored at a place known as Golghar in Patna. At times the firm of the petitioner and his brother received supplies from this Golghar also. It will appear from the evidence of P.W. 18, Harnandan Prasad a godown clerk in the office of the Sub-divisional Officer of Dina-pore, that the firm of the petitioner as Government stockist had to receive the supplies made from time to time, to keep the food grains in its godown and to issue supplies under the order of the Sub-divisional Officer for sale in the Government fair price shop. Periodical checks were made to see that the stock was not interfered with. One of these checks was made in the mon March, 1945. Before the next check fell due the Sub-divisional Officer of Dinapore received a confidential information that the petitioner had removed about 2000 maunds of Government rice for his own benefit. Mr. Ife, who had appointed the firm of the petitioner and his brother as Government stockist, was no longer at Dinapore. P.W. 1 Mr. A.J. Khan, was the Sub-divisional Officer in June 1945. On 30 June 1945, on receipt of the information just referred to, he along with his Assistant Supply Officer P.W. 2 Mr. M. Khan, paid a visit to the godown of the petitioner . The petitioner was present at the godown, and when the Sub-divisional Officer wanted to verify the stock he (the petitioner) tried to put off the verification. The Sub-divisional Officer was determined to verify the stock, and seeing this attitude on his part the petitioner slipped away on the pretext that he should make arrangement for men to assist the Sub-divisional Officer in weighing the bags of the rice in the godown. The verification had to be done in the absence of the petitioner as he did not return until after two days by which time the verification was complete, and it was found that between the book-balance and the actual stock there was a difference of 1466 maunds of rice. The authorities discovered that the petitioner had pledged 500 maunds of rice with the Bank of Bihar on 16th May 1945. There is a rice mill run by the firm of the petitioner and his brother. On the mill premises, were found 22 bags of rice stored in a godown attached to the mill. A case was started against the petitioner for criminal breach of trust in respect of 1434 maunds 15 seers and 14 chataks of Government rice valued at the prevailing rate at Rs. 15,410-12.0.

(3.) The charge against the petitioner runs as follows: That you, between 31 day of March 1945 and 30 day of June 1945 at Dinapore being an agent for stocking food grains on behalf of the government and in such capacity entrusted with certain property to wit, one thousand four hundred thirty-four maunds, fifteen seers and fourteen chataks of rice valued at Rupees 15,410-12-0, committed criminal breach of trust with respect to the fad property and thereby committed an offence punishable under Section 409, Indian Penal Code. The petitioner was examined by the trial Court on 30 March 1946. The only question put to him was "You have heard the statements of the complainant and the witnesses. What have you got to state?" In reply the petitioner stated that he did not commit any offence, and further told the Court that he would file a written statement. The written statement promised to be filed was field on 30 March 1946. In para. 1 of the written statement the petitioner denied having committed any offence. In para. 2 it was stated that besides being a Government stockist, the petitioner had an independent grain business of his own. The rest of the written statement is to the following effect. The petitioner stores his grain in several houses in the town. His business is managed by his employees and not by himself. The verification of stock made by the Sub-divisional Officer and his subordinates was faulty to a degree and should not be relied on. There is no evidence of criminal misappropriation. The petitioner admitted his civil liability in the matter and was ever ready to indemnify Government. The trial was bad because the charge was in respect of a total quantity alleged to have been misappropriated during a certain period.