Patna High Court
Sheikh Nurul Hassan vs Emperor on 23 April, 1920
Equivalent citations: 56IND. CAS.669, AIR 1920 PATNA 168(2)
JUDGMENT Sultan Ahmed, J.
1. This is an application on behalf of one Shaikh Nurul Hassan against his conviction and sentence under Section 406 of the Indian Penal Code. The case for the Crown is that he between the 18th August 1918 and the 27th March 1919, being entrusted with the collection of taxes of the Madhepura Union Committee, committed breach of trust in respect of Rs. 53-2. The facts in the case are not very much disputed. It appears that the accused was employed as agent by Rameshar Marwari to collect on his behalf the taxes of the Union Committee, The remuneration of the accused was fixed by Rameshar Marwari to be 10 per cent of the collection. It appears that before the 12th October 1919 one Sudama Prasad was employed by Rameshar for this purpose. His services having been dispensed with on that date Nurul Hassan, the present accused, was appointed as Rameshar's agent, and the case for the Crown is that during the time that he had been in charge of the collection of the taxes he committed criminal breach of trust with respect to Rs. 53-2, On these facts the accused was convicted under Section 406, as stated above, and sentenced to four months' rigorous imprisonment. An appeal having been preferred, the conviction and sentence were upheld. This application has now been filed in this Court, and a Divisional Bench of this Court issued a Rule to show cause why the conviction and sentence of the petitioner should not be set aside. The learned Vakil appearing on behalf of the petitioner mainly contends that the petitioner could not be convicted under Section 406, Indian Penal Code, unless it was found that he dishonestly misappropriated or disposed of the money in violation of any direction of law prescribing the mode in which such trust was to be discharged or of any legal contract, express or implied, that touched on the discharge of such trust. Rameshwar Marwari who was cross-examined in the case stated as follows: "I had instructed Nurul Hassan to bring the collection amount to me or deposit that in the treasury. I had not fixed any period for depositing the collection money into the treasury". It is obvious that the accused was a servant of Rameshar Marwari and had nothing to do with the Union Committee, and if he deposited the sums collected by him into the treasury he did so on behalf of his principal Rameshar and, therefore, it is absolutely clear that if there was any trust that trust was created by Rameshar, and before the conviction under Section 408 of the Indian Penal Code can be maintained, it is necessary to know the terms under which that trust was created. On the evidence of Rameshar Marwari, which I have quoted above, it is obvious that Rameshar had not fixed any period for the deposit of the collection money into the treasury. Then secondly on the fails found the accused had to receive 10 per cent. of the collections as his remuneration, and it appears from the prosecution evidence that the previous agent Sudhama Prasad used as a matter of fact sometimes to deduct his remuneration of 5 per cent. from the collection that he used to make. Unfortunately no reference has been made to this evidence either in the judgment of the trial Court or the judgment of the lower Appellate Court. If this evidence is accepted, then the accused would be entitled to a deduction of 10 per cent. of the collection as his remuneration. On the evidence of Rameshar quoted above and also on the evidence that Sudhama Prasad used to retain 5 per cent. as his remuneration, in my opinion no charge of criminal breach of trust can be maintained without an adjustment of accounts between Rameshar and the petitioner. The conviction and sentence of the petitioner must, therefore, be set aside.
2. It was held in the case of Mathura Prasad v. Emperor 40 Ind. Cas. 303 : 18 Cr. L.J. 655 that "the retention of money by a servant or clerk for fifteen months after its receipt raises a very serious doubt of bona fides against him, but the mere retention is not conclusive proof of criminal misappropriation or criminal breach of trust". If there had been evidence on the record that Rameshar had fixed any period for depositing the collection money into the treasury, surely the conviction of the accused would have been upheld, but in the absence of that evidence the conviction must be set aside. The result is that the conviction of the accused under Section 4C6 is set aside. He will now be discharged from his bail.