SANTOK CHAND Vs. EMPEROR

JUDGEMENT

(1.) This is a Rule issued at the instance of the two accused, Santok Chand and Anup Chand, for revision of an order of Mr. A.T. Mukerjee, lately Fifth Presidency Magistrate, whereby he convicted them of an offence under Section 406 of the Indian Penal Code, and sentenced them each to one day s rigorous imprisonment and a fine of Rs. 200. The facts appear to be as follows: The first accused Santok Chand is a partner and (so far as this case is concerned) the sole representative in Calcutta of the firm of Koramal Santok Chand. The second accused Anup Chand is the munib gomasta of that firm. The firm acted as araldars for another Marwari firm, Meghraj Sugan Chand, in which the complainant Sugan Chand Munawat is a partner. Meghraj Sugan Chand owed money to Koramal Santok Chand, and demands were made for payment. Meghraj Sugan Chand agreed to consign certain jute to Koramal Santok Chand, towards satisfaction of the debt, but in breach of that agreement they consigned the jute to another firm, Chogmal Hazarimal. On 2nd January 1918 Koramal Santok Chand filed a suit on the Original Side of this Court against Meghraj Sugan Chand for Rs. 6,296-5-6, and on the same day applied for attachment before judgment of the jute above mentioned. A Rule nisi was issued, and in the meantime the plaintiff firm were appointed receivers of the jute on giving security for Rs. 3,500. As such receivers on 5th January 1918 they took delivery of the jute from the Eastern Bengal Railway, 641 half bales, and paid the railway charges.

(2.) On 11th January 1918 a consent order was passed by Greaves J. in the matter. The portions of that order material for the present purpose were (i) that the defendants were to furnish security to the satisfaction of the Registrar for Rs. 6,296-5-6, the amount claimed; (ii) on their doing that, and paying Rs. 524-12 for freight to the plaintiffs, the latter were to give delivery to the defendants or their nominees of the 641 half bales; (iii) the hearing of the motion was to stand till the hearing of the suit, the question of costs being reserved; (iv) the order appointing the plaintiffs receivers was to be discharged and the security given by them to be refunded. Though the order was made on 11th January 1918, and the defendants on that day gave the required security in this Court, the terms of settlement appear not to have been filed until the 24th, and the order was not signed by the Master until the 28th. Meanwhile, on 16th January 1918, the complainant Sugan Chand, accompanied by some persons from the firm of Chogmal Hazarimal, went to the plaintiffs godown and actually took delivery of 57 half bales. They then discontinued taking delivery, alleging that four of the 57 half bales were not the defendants jute, and that the plaintiffs had substituted jute of an inferior quality in those bales, affixing to them labels of the defendants. Letters passed between the attorneys of the parties, two of which are set out in the petition but which (we are told) have not been exhibited in this case. Nothing much turns upon the letters, as to the writing of which there is no dispute In their first letter the defendant s attorneys complained that all the labels had been tampered with by substitution of inferior jute. This we are told, they corrected in a subsequent letter. On 18th January, however the defendant, Sugan Chand, filed a complaint before the then Fifth Presidency Magistrate in which he stated that after the discovery of the four half bales of inferior jute abovementioned, he had inspected the rest of the stock and discovered that all the complainant s bales had been removed by "him" (it is not clear who is meant, but we presume it referred to Santok Chand), and the accused had extracted the labels there from and attached them to bales of inferior quality The complainant charged both the accused, under Section 406 of the Indian Penal Code, with having committed criminal breach of trust in respect of 584 bales of jute, and applied for process and a search warrant. The search warrant was issued and 341 half bales were found in the plaintiffs godown No. 17, and 241 in godown No. 23. The 311 half bales were admittedly intact. It was alleged, and has been found by the Magistrate, that from the 241 the defendants labels had been removed but those 241 half bales were otherwise intact. Two half bales are said to be missing bat of these the Magistrate makes no mention It was stated to us by counsel for the accused that there are in fact 243 and not 241 half bales in godown No. 23. On 27th February 1918 two charges were framed each against both the accused. The first charge is of criminal breach of trust in respect of 247 half bales of jute; the second is of abetting each other in the commission of that offence. It need hardly be pointed out that the first charge is clearly erroneous as regards Anup Chand, the second accused. It is no body s case that he was ever entrusted with the jute. He acted, if at all, as the servant of Santok Chand, the first accused. The Magistrate s decision is contained in the few concluding words of his judgment. He says:-- "The evidence shows that the two accused, after they had got the 641 bales in sound condition from the Railway authorities in their own possession, did tamper with several of them, i.e., removed the labels therefrom, and put the same on bales of inferior jute in order to pass them off as belonging to the complainant. They actually made over four such bales to the complainant on the first day of taking delivery. A few bales of the complainants jute are missing after all. Thus the accused had clearly committed criminal breach of trust in respect of some of these bales."

(3.) The learned Magistrate has not dealt with the case of each accused separately though the two cases are obviously not identical. Nor has he decided in respect of how many and which half bales the offence of criminal breach of trust has been committed, unless it be in respect of the four half bales in lieu of which inferior jute was said to have been delivered to the complainant. Of the four half bales delivered it appears from the evidence, and indeed it was admitted by the learned Advocate-General, that two have been sold and the other two were not exhibited in Court. It is difficult, therefore, to see how the learned Magistrate could have satisfied himself as to the alleged inferiority of quality, which must have rested on the bare word of the complainant and his witnesses. As to 53 out of the 57 half bales delivered, and the 311 found in godown No. 17 no charge is preferred. As to the 211 found in godown No. 23 no offence of criminal breach of trust is established. The mere removal of the defendants labels would not amount to such an offence, and in other respects these bales were found intact. There has been no conversion of them to the plaintiffs use. In respect of the two missing bales also (even if they be missing which the accused deny) it cannot be said that any offence has been committed. There is nothing to show, nor has the Magistrate found, that they have been converted to the plaintiffs use. The case against the two accused is thus confined to the four halt bales for which the last four half bales out of the 57 are alleged to have been substituted. The point for determination is whether the accused, or either, of them, has committed criminal breach of trust with regard to these four half bales. To take the case of Santok Chand first, although, strictly speaking it was the plaintiff firm that were appointed receivers in this case, we may assume that he, as representing the firm, must be deemed to be the receiver so appointed.