Brojendra Mohan Mazumdar vs The State

Sarma Sarkar, J.—The principal point for decision in this appeal is whether the Appellant Brojendra Mohan Mazumdar was the buyer of 380 bundles of G.C. sheets or an agent entrusted with the same.

Prosecution alleges that the Appellant was appointed a handling agent or stockist of G.C. sheets (white) at Lalbagh, Murshidabad, in terms of an agreement (Ex. 1) dated June 25, 1953 and another (Ex. 2/1) dated November 10, 1952. The Appellant was to take delivery of the consignment by prepayment of the cost price of the materials and freight when the Railway receipt was to be endorsed by the Sub-divisional Officer and the Appellant was to give delivery "only to such person or persons and of such quantities as the Sub-divisional Officer, Lalbagh, may permit him in writing". It is further alleged that the Appellant received 200 bundles of G.C. sheets on May 13, 1953 and 200 bundles on May 16, 1953, as per receipts granted by him (exs. 3 and 4) and there was a stock of one bundle from before. Out of the 401 bundles, 21 bundles were sold to permit holders between November 25, 1953 and December 5, 1953, as per stock register (Ex. -51) maintained by the accused and cash memos. Nos. 520 to 530 in cash memo, book R/1. The Appellant submitted a return (Ex. 14) dated January 1, 1954, showing stock of 380 bundles. But on verification of the stock none was found at Lalbagh on April 28, 1954, at the godown (stable of Nawab Bahadur of Murshidabad) where the stock was to be kept as per agreement. Only 4 bundles of G.C. sheets were found in the Berhampore godown of the accused on October 6, 1952 (Ex. 17) and no stock was found there on May 19, 1954 (Ex. 18), when the godown was inspected and stock was verified. But the Appellant in his stock register (Ex. 51) showed sales of 380 bundles of G.C. sheets by cash memo. Nos. 1.01 to 296 to 196 persons between April 17, 1954 and May 15, 1954. Prosecution examined 95 persons out of these 196 to show that no permit was Issued to them and no G.C. sheets were received by them from the Appellant.

On these allegations the following charge was framed against the Appellant:

That you from December 5, 1953 to May 15, 1954, being) entrusted with 401 bundles of G.C. Sheets by the Government of West Bengal in the Refugee Rehabilitation Department in the capacity of a Government Agent and a stockist committed Criminal Breach of Trust in respect of 380 bundles out of the said 401 bundles by showing sales to various fictitious persons and thereby committed an offence punishable u/s 409 of the Indian Penal Code and within my cognizance.

On the charge so framed the Appellant was convicted and sentenced to rigorous imprisonment for four years by the Judge, Additional Special Court, Murshidabad.

Mr. Bhattacharya, the learned Advocate for the Appellant, contended before us that the Appellant was not the agent of the State Government but the purchaser of G.C. sheets in question which were never entrusted to him as an agent. He became the purchaser of the stock of G.C. sheets and also the owner of the same on prepayment of price. The owner of the stock could not commit the offence of breach of trust in respect of the same. If there was any breach of any term of any agreement, then it was a case of breach of contract and not a case of breach of trust and the remedy, if any, is elsewhere and not in the Criminal Court. It was also urged before us that there was no criminal breach of trust by the Appellant as G.C. sheets were sold by him on cash memos, with the permission of the Relief Rehabilitation Department and that there was no dishonesty in the transaction which was carried on bona fide. It was further urged before us that the charge framed was illegal which had vitiated the trial.

Points that arose for consideration in this appeal are (i) whether the Appellant is an agent of the Government in respect of 330 bundles of G.C. sheets or a purchaser of the same, (ii) whether 380 bundles of G.C. sheets were entrusted with the Appellant as an agent of the Government in the way of his business as such agent, (iii) whether the Appellant committed criminal breach of trust in respect of the same by sale to fictitious persons and (iv) whether the charge framed is illegal for which the trial and conviction should be set aside.

Points (i) and (ii) are taken up together for consideration and decision. Before considering the instant case it will be profitable to refer to the various decisions relied on by the learned Advocate for the Appellant. Reference was made to the case of Ghasiram Agarwalla Vs. The State, . In that case wheat was delivered by the Government to the retailer on his deposit of price at the agreed wholesale rate. The retailer was to sell wheat during shop hours to consumers within his zone at a certain retail rate fixed by the Government. The retailer removed the bags of wheat from his shop at night time, but later on brought them back. The retailer was charged u/s 409, Indian Penal Code. It was held unanimously in respect of (i) and by a majority of four to one in respect of (ii) and (iii) only--(1) that the accused must be acquitted even of the offence of an attempt to commit criminal breach of trust as there was no agreement to store wheat in a particular place, (2) the retailer could not be regarded as an agent of the Government and (3) the property in the stock of wheat passed to the retailer. It must be noticed that the basis of the decision in that case was construction of the agreement operative between the retailer and the Government.

The next case relied on by Mr. Bhattacharya is S.N. Barick Vs. State of West Bengal and Another, in which it was held by Mukherjea, J. that the stockist under the West Bengal Cement Control Act or Orders promulgated under the Act was not an agent of the Government. But in that case there was no other agreement between the stockists and the Government and it was expressly laid down that--"to say that the Act and the Orders do not make a stockist of cement automatically an agent of the Government is not, however, the same thing as to hold that the provisions of the Act and the Orders would debar a stockist of cement from being an agent of the Government. Whether a stockist of cement is an agent of the Government or not will depend on independent facts having nothing to do with the provisions of the West Bengal Cement Control Act or the Cement Control Orders." The next case referred to is Indian Iron and Steel Co. Ltd. and Others Vs. Dalhousie Holdings Ltd. and Others, . It was held by Mukherji, J. that an agreement of sale of shares before effecting delivery of the shares with the vendors may call upon the purchasers not to resell any of the said shares except at such time and at such price as may be mutually agreed between the parties was not inconsistent with the sale which was not completed by delivery. That was a case of sale or rather an agreement for sale of shares which passed the property, but some conditions were imposed. It was a case of sale with conditions. It is interesting to note that the approach of Bachawat J. in the same case was slightly different when he remarked that it was "a complex contract of sale under which the ownership of the share is impressed with certain trust for the benefit of the seller". It is, however, important to note that in the agreement in question there was no contract op condition of agency, as such and the property in the shares was not entrusted to the agent but was agreed to be sold for the purchaser though on certain conditions.

Next case referred to is R.K. Dalmia Vs. Delhi Administration, . It was laid down that the term ''agent'' in Section 409 is not restricted only to those persons who carry on the profession of agents. What Section 409 requires is that the person alleged to have committed criminal breach of trust with respect to any property is entrusted with or has a dominion over that property in the way of business as an agent. That expression ''in the way of his business'' means that the property is entrusted to him in the ordinary course of his duty or habitual occupation or profession or trade. In other words, the requirements of this section will be satisfied if the person be an agent of another and that other person entrusts the property or with dominion over that property in course of his duties as an agent. It is further remarked that a person may be an agent of another for some purpose and who is entrusted with property not in connection with that purpose, but for another purpose that entrustment will not be entrustment for the purpose of Section 409 even if a breach of trust is committed by that person. In the case stated above there was no express agreement creating agency of Choukhani either with Dalmia or Bharat Insurance Company, yet Choukhani has been convicted as an agent because in the course of his dealing with the property and funds for Bharat Insurance Company, over which he had dominion, the criminal breach of trust was committed even though not in his own interest.

The last case that must be considered in this connection is New India Sugar Mills Ltd. Vs. Commissioner of Sales Tax, Bihar, . It was held in that case that a contract of sale between parties is a pre-requisite to sale. "The transactions of despatches of sugar by a sugar factory in the province of Bihar pursuant to the direction of the Sugar Controller of India in exercise of authority under the Sugar and Sugar Products Control Order, 1946, to the province of Madras were not the result of any contract of sale, though price was deposited in the province of Madras". Both the majority judgment of Shah J. and minority judgment of Hidayatullah J. discussed the question whether there could be a contract for sale though there was no direct negotiation of offer and acceptance and though the price was fixed by the Controller under the Sugar Products Control Order, 1946. While the majority judgment proceeded on the footing that there could be no sale without direct negotiation and payment, the minority judgment held that there could be sale under such circumstances. In that case also there was no separate agreement creating agency and providing for entrustment. The question whether there was an intention to sell was not called for a consideration in that judgment.

After reviewing the relevant case laws we may refer to the relevant statutory laws on the subject.

Section 2(1) of the Sale of Goods Act, 1930, defines ''buyer'' as a person who ''buys or agrees to buy goods''.

Section 2(10) : ''Price'' means the money consideration for a sale of goods.

Section 2(11) : ''Property'' means the general property in goods and not merely a special property.

Section 2(13) : ''Seller'' means a person who sells or agrees to sell goods.

Then we may refer to Section 4(1) and (3) of the Sale of Goods Act:

Section 4(1) : A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.

Section 4(3) : Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

Then we may refer to Section 19(1) and (2) of the Sale of Goods Act:

Section 19(1) : Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

Section 19(2) : For the purpose of ascertaining the intention of the parties regard shall be had to the term of the contract, the conduct of the parties and the circumstances of the case.

We may also refer to Section 182 of the Contract Act which defines agency:

Section 182 : An ''agent'' is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the ''principal''.

On a close scrutiny of the relevant cases and statutory laws it appears to us that the question whether a particular transaction was a transaction of sale or transaction of agency, depends on the intention of the parties. An intention of the parties has to be gathered from the facts and circumstances of each case. The Austinian conception of ownership based on unlimited power of the user, unrestricted power of enjoyment and unfettered power of disposal of the property to any person at any price has been greatly modified by the restriction and limitation imposed by the; various control orders due to the scarcity of essential commodities which are to be distributed for the benefit of the people as a whole in a welfare State. But even so, these restrictions and limitations have to be considered in each case to find out if really there was a transaction of sale or a transaction of agency. In a transaction of sale price is to be paid for the transfer of the ownership of the property in the goods. If there is no intention to transfer the ownership of the goods mere payment of price will not convert a transaction into one of sale where there is no transfer and no intention to transfer the ownership of the property in the goods. It is interesting to observe that u/s 2(10) of the Sale of Goods Act the price may be paid in transactions other than sale as in the case of bailment, agency and other limited transfer of possession without transfer of ownership. The main criterion, therefore, is not whether there is payment of price or value of the goods but rather if there was any intention to transfer the ownership of the property either presently or in future. In finding out the intention we may refer to Section 19(2) of the Sale of Goods Act which lays down that the terms of the agreement, the conduct of the parties and the circumstances of the case have to be taken into consideration.

Judged by the standard and the test laid down, it will be necessary for us at this stage to consider the terms of the agreement governing the relationship of the Appellant to the Government. It will be profitable at this stage to set down the relevant terms of the agreement (Ex. 1) for proper appreciation of the transaction in the instant case:

Whereas the Government of West Bengal...has agreed to appoint the said Shri Brojendra Mohan Mazumdar and the said Shri Brojendra Mohan Majumdar has agreed to work as a stockist for clearing, storing and distributing consignments of building materials, according to the orders of the Sub-divisional Officer, Lalbagh.

It is mutually agreed as follows:

(1) The Sub-divisional Officer, Lalbagh, or an officer authorised by him shall endorse over to the stockist the Railway receipt in respect of consignment that arrives in the district by Rail subject to the condition laid down in Clause (2).

(2) The stockist, on pre-payment of the price, shall take delivery of the consignment of goods as they arrive by whatever form of transport and shall where necessary pay the Railway freight which will ultimately be paid to the stockist, by inclusion of the amount in question towards selling price. The Sub-divisional Officer will not pay any demurrage charge or any other charge for delay of unloading the goods by the stockist.

(4) After obtaining delivery of the goods on weighment, wherever possible, from the Railway, the stockist shall store them in the godown approved by the Sub-divisional Officer. Each consignment shall be weighed and counted in the presence of an officer deputed by the Sub-divisional Officer.

(5) The stockist shall within 24 hours of the arrival of goods in the godown submit a report specifying quantities of stocks actually received in the godown countersigned by the officer in whose presence the weight and counting has been taken.

(7) The stockist shall take all reasonable precautions and exercise all reasonable diligence to store the goods in godown approved by the Sub-divisional Officer and shall take steps to prevent the goods from deteriorating in quality. He shall be responsible for any loss or damage to the goods from the time they are taken delivery of from the Railway authorities until these are sold on permits, issued by the Sub-divisional Officer. Loss or damage or deterioration due to natural causes, earthquake, arrived (?) or other enemy action, riots, civil commotion, military operation, force majeure (?) or other causes beyond the control of the stockist excepted.

(8) The stockist shall at his own cost and expense provide a suitable godown for storage of Government stock and shall not use the said godown for storing his own goods or the goods of any other party or parties. No godown rent will be paid by the. Government.

(9) The stockist shall give delivery only to such person or persons and of such quantities as the Sub-divisional Officer, Lalbagh, may permit him in writing. Such building materials to be sold by the stockist on permits to be issued by the Sub-divisional Officer or by any other officer authorised by the S.D.O., Lalbagh.

(10) All claims, if any, by the parties receiving the goods in respect of quantity, damage or shortage, except as herein otherwise provided, caused during the time the goods are in the possession of the stockist, will be met by the stockist and he shall have no claim against the Government in respect thereof.

(11) The stockist shall be allowed transport charges for carrying the goods from Railway station to his godown and to the despatching Railway station or to any other place when called upon to do so, at the rate to be fixed by the Sub-divisional Officer from time to time.

(12) The stockist shall maintain such books of account in respect of the stocks, as are prescribed by the Sub-divisional Officer from time to time, such books and the godown where the goods shall be stored shall be open to inspection of the officer authorised by the Sub-divisional Officer at all reasonable times.

(14) For the due fulfilment of this agreement the stockist shall, immediately upon the execution of this agreement, furnish security to the extent of rupees two thousand and five hundred only, either in cash or in Government or other approved securities and the Government shall be at liberty to deduct therefrom or realise there out any loss or damage which may be occasioned by reason of any breach committed by the stockist in any wise relating to this agreement.

(15) It is specifically agreed to herein that goods in such godown as aforesaid or in respect of Railway receipts handed over to the stockist in terms of this agreement will be and will be deemed to be held by the stockist in trust for the Government. The stockist shall deliver the said goods to such persons as may be directed by written order by the Sub-divisional Officer or by such other officer on behalf of the Sub-divisional Officer.

(16) In consideration of the services to be rendered by the stockist he shall receive commission.... The stockist shall not be entitled to any other remuneration from the Government except what has been provided for in Clauses (11) and (16) thereof.

(17) The stockist shall submit such daily, weekly or monthly returns of stocks and accounts of all transactions as may be required by the Sub-divisional Officer from time to time.

(18) On the termination of the agency the stockist shall be entitled to a refund of the security or such portion thereof as may be payable to him within two months after final adjustment of accounts.

(19) The stockist shall in all respects comply with all reasonable directions and orders which may be issued on him by the Sub-divisional Magistrate from time to time (a) to safeguard Government stocks against pilferage or misuse or loss or (b) for any other purpose.

(22) As soon as a particular consignment reaches its destination by Rail or road, the stockist will have to deposit into Treasury the cost price of the materials which will include price of the materials and Railway freight (if any). A copy of the chalan should then be submitted by the stockist to the Sub-divisional Officer whereupon the Sub-divisional Magistrate will release the consignment to the stockist for sale to refugees against permits to be issued by the Sub-divisional Officer, Lalbagh, or by any other officer authorised by the S.D.O.

(23) In the event of any difference or dispute arising under this agreement or any of the terms and conditions thereof or the construction of this agreement or any clause thereof the same shall be referred to the Arbitration of the Secretary to the Government of West Bengal, Refugee Rehabilitation Department, Writers'' Buildings, Calcutta, whose decision shall be final and conclusive.

The learned Advocate for the Appellant referred to the Clauses (2), (10), (22) and (23) in support of his contention that it was a contract for sale in favour of the Appellant subject to certain restrictions and conditions as embodied in other clauses of the agreement. But the agreement should be construed as a whole and several clauses cannot be interpreted and accepted in isolation. It is to be considered whether reading the agreement as a whole there was an intention to transfer the ownership or property in the G.C. sheets in question. As we have already observed mere pre-payment of price is neither crucial nor decisive to find out the intention. The real question is whether there was an intention to transfer the property. Price or value may be offered or paid by part owners, the bailees, trustees or agents. As observed by Chatterjee J. in his minority judgment in Ghasiram v. State Supra, p. 584: "There may be a bailment or agency for sale". As defined in Section 2(11) of the Sale of Goods Act, ''property'' means general property in goods and not merely a special property. A bailee or a trustee may pay the value or price for possession of the goods in question as a special property, but the ownership can pass only if the general property in the goods is intended to be transferred. Apart from that, the terms of the agreement in Ghasiram''s case are fundamentally different from the terms of the agreement in the present case as it will be apparent from comparison of the terms set out in Ghasiram v. State Supra p. 584. It will appear from Clause (4), (8) and (12) in that agreement that the retailer was to purchase the wheat from the Government at control rate and to sell the said wheat to consumers also at the control rate, the difference in price being presumably the profit reserved for the retailer. The other restrictive conditions have been very clearly explained by Sen J. in the Full Bench decision cited above as a collateral contract relating to the conditions of resale. Once the sale is completed, the breach in the conditions of the collateral contract may lead at best to breach of contract, but there cannot naturally be any breach of trust as the property in the goods has already been transferred to the retailer. It was laid down in Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore-Cochin, , that in a case of criminal breach of trust "the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit." In the instant case, the provisions in the last part of the preamble, Clause (7), (8) (last part), (15), (16) (first part), (18) and (25) are inconsistent with any intention of transferring the ownership in the property and consistent with an agency for sale. In this connection we may also refer to the notification dated June 15, 1953, issued by the Government (Ex. 24) in which it was stated, "Government will pay the difference between the cost price and the controlled price in case of fall in price under the Steel Control Orders by the Government of India. This clause or undertaking of the Government is wholly inconsistent with the transaction of sale and the Appellant is relieved of the responsibility relating to fluctuation of prices with regard to the stock delivered to him by the Government. It may be pointed out that not only the word ''trust'' has been used in Clause (15) of the agreement and ''agent'' has been used in Clause (18) of the agreement there is a clear assertion that the property in the goods remained with the Government in Clause (8) and (25); and in Clause (7) the Government undertook to bear the loss or damage or deterioration due to natural causes. The learned Advocate for the Appellant referred to Clause (23) of the agreement providing for arbitration clause. But that clause is applicable to any difference or dispute arising under the agreement or any of the terms and conditions hereof or the construction of the agreement or any clause thereof. There is no dispute in the present case regarding the points covered by Clause (23) of the agreement. Besides, that clause is applicable to civil proceedings and not to a criminal proceeding like the present one where the question whether the Appellant is an agent or a buyer has to be considered independently of Clause (23) of the agreement.

We have considered the instant case with reference to the agreement. We now proceed to discuss the present transaction in the light of conduct of the parties. It would appear from Ex. 16 dated November 10, 1953, that the Appellant himself asked for permission to sell the G.C. sheets as there was delay in issuing permits. If the Appellant considered himself to be the owner of the property it was not necessary to ask for any permission.

The transaction may also be looked from the circumstances of the present case as laid down in Section 19(2) of the Sale of Goods Act. It is interesting to observe here that the Government itself did not carry on transaction of purchase or sale in the ordinary way. It was a controlled commodity which was sent in the name of the Sub-divisional Officer who endorsed the Railway receipt in favour of the Appellant who paid the price mentioned in the Railway receipt together with Railway freight and got possession of the G.C. sheets in, question. In case of normal sale, the Government becomes the full owner first and then resells to the Appellant. In the present case, the Appellant paid the price as if for and on behalf of the Government and took possession of the G.C. sheets for the Government. This factor was noted in two cases cited before: S.N. Barik v. State Supra and New India Sugar Mitts Ltd. v. Commissioners of Sales Tax, Bihar Supra. It is true that in the Calcutta case of S.N. Barik v. State the cement dealer was not considered to be an agent of the Government, but in that case the observation was made on the basis of Cement Control Act and the Orders passed under the same. There was no separate agreement controlling the relationship between the dealer and the Government and it was observed in that case as follows:

To say that the Act and the Orders do not make a stockist of cement automatically an agent of Government is not however the same thing as to hold that the provisions of the Act and the Orders would debar a stockist of cement from being an agent of Government. Whether a stockist of cement is an agent of Government or not will depend on independent facts having nothing to do with the provisions of the West Bengal Cement Control Act or the Cement Control Orders.

We, therefore, hold that the Appellant was not the buyer of the G.C. sheets in question but an agent for sale of the Government and he was entrusted with the properties in the way of his business as an agent on behalf of the Government.

I now take up the third point whether the Appellant committed criminal breach of trust in respect of 380 bundles of G.C. sheets. It is the prosecution evidence which is since admitted by the Appellant in his examination u/s 342, Code of Criminal Procedure that out of 401 bundles of G.C. sheets entrusted with him as per his own receipts, exs. 3 and 4, permits were received for 21 bundles only and they were sold to the permit-holders by cash memo. Nos. 520 to 530 as per stock register (Ex. 51) and the cash memo, book (Ex. 1) between the period dated November 25, 1953 and December 5, 1953. The Appellant submitted a return (Ex. 14) on January 1, 1954, showing 380 bundles in his possession. It is the prosecution case that on verification of the stock at Lalbagh (Ex. 15) on April 28, 1954, no G.C. sheet was found there. There was also an inspection at Berhampore godown on October 6, 1953 (Ex. 17) and 4 bundles of G.C. sheets were found then. There was another verification at Berhampore godown on May 19, 1954, in the presence of the stockists when no G.C. sheet was found there. The prosecution has also produced 95 witnesses out of 196 persons to whom 380 bundles are shown to be sold by the accused by entries in his stock register (Ex. 51) between the period dated April 17, 1954 and May 15, 1954. Out of 113 witnesses examined in this case P.Ws. 12, 15 to 101, 104 to 108, 110 and 112 are the witnesses who have denied that they purchased any G.C. sheets (white) with or without permit from the Appellant as per cash memo. Nos. 101 to 296. Some of the persons who are alleged to have purchased the G.C. sheets are dead and some are not found in the village where the G.C. sheets were sold and some have denied their signatures in the cash memos, when shown to them. The learned Advocate for the Appellant, however, relied on the evidence of P.Ws. 12, 25, 42, 47, 48, 49, 50, 75, 26, 29, 36, 85 and 87 and exs. A to P and T, 26 to 31. As regards Ex. C (Ex. 51) and exs. 27 to 31, they are irrelevant for the purpose of the present case as these were issued with permit in 1952 prior to the disputed transaction. P.W. 26 has explained the circumstances under which Ex. 26 was taken from him. He has stated that he did not purchase any G.C. sheet from the Appellant but he purchased Clause sheets (black) and signature on Ex. 26 was taken from him at his house by some misrepresentation. So far as P.Ws. 29, 35 and 85 are concerned they admit the signatures in exs. D, A and B respectively. But they deny representation. So far as P.Ws. 29, 35 and 85 are concerned they got black sheets through Mahendra and signatures might have been taken at that time. Similarly, P.W. 87 admits the signature (exs. A to P) but he did not purchase any tin from the Appellant, but he seems to have signed for others. P.W. 75 has stated that he had no grievance against the Appellant and he got the articles for which he got permit. This witness has not proved any of the disputed cash memos. The evidence of P.W. 75, therefore, does not help the Appellant. P.Ws. 12, 25, 42, 47, 48, 49 and 50 admit purchase of black C.I. sheets and not G.C. sheets. Their evidence, therefore, does not help the Appellant in proving that the G.C. sheets (white) were sold to them.

Mr. Bhattacharya, appearing for the Appellant, argued with some force on the basis of Ex. T that Clause sheets were sold at the request of the District Relief Officer. This plea is untenable for more reasons than one. It is not clear if Ex. T relates to G.C sheets (white), through ''C sheet (white sandy)'' is mentioned. Exhibit T is dated September 9, 1952, prior to the disputed consignment and it is not known if there was any restriction for sale without permit at that time. But Clause 3 (ii) of the circular dated June 15, 1953, Ex. 24, clearly lays down with regard to the disputed consignment that there cannot be a free sale in respect of G.C. sheet meant for refugees even after the lapse of 60 days. Even if it were true that in special cases sale took place at the request of the Relief department, that will not absolve the Appellant from the offence of criminal breach of trust in respect of 380 bundles of G.C. sheets which were to be distributed to the East Bengal refugees oh permits issued by S.D.O., Lalbagh, or by such officer authorised by him.

Apart from that it is not disputed and the stock register (Ex. 51) maintained by the accused clearly shows that there was no permit granted either by the Sub-divisional Officer, Lalbagh, or by any officer authorised by him. It is further clear that the Appellant did not keep stock in the godown at Lalbagh as no stock was found on April 28, 1954, when inspection was made in the presence of a Magistrate. But the cash memos, filed by the Appellant show sales not only before April 28, 1954, but also after April 28, 1954, till May 15, 1954. This clearly indicates that the sales shown in the stock register are fictitious as stated in the charge.

The learned Advocate for the Appellant argues with some force that there is no element of dishonesty in the present case as the Appellant sold by cash memos, at control rates and even if there was no permit, there was not at any rate any dishonesty on his part and as such, the charge u/s 409, Indian Penal Code, will fail. The argument, it seems, is misconceived. In the present case, what was entrusted was not the price of the goods but the goods themselves. In case of control commodities, the price was not the criterion of the value of the goods as they may be invaluable being not available. In such circumstances, the sale at control rates will not make it nonetheless dishonest because ''dishonesty'' means in terms of Section 24 of the Indian Penal Code wrongful loss to one and wrongful gain to another. In the present case, as we have held that the stock belonged to the Government, it was wrongfully deprived of the stock by selling without permit in violation of the terms of the agreement. The further question whether the stock was sold at a higher rate for making extra profit to the Appellant does not seriously arise in a case of this description. Nor can the plea of the Appellant be of any avail that he recouped the price that he paid by selling to customers by proper cash memos. We have already shown that the sales are fictitious and even if the sales are genuine, the Appellant could not escape liability because either the Government or the East Bengal refugees for whom they are meant was deprived of the stock wrongfully by selling them without permit. Apart from that, from the evidence of P.Ws. 27 and 41 there is some indication that sale took place at higher rates than the usual rates for which the Appellant may be liable as he made wrongful gain by selling at higher rates. At any rate, from the facts and circumstances of the present case it is clear that the Appellant disposed of the stock entrusted with him in violation of the terms of the agreement without permit and removed the stock from the godown at Lalbagh without permission. In this connection reference may be made to Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay, and Akshoy Bose v. Emperor (1934) 38 C.W.N. 467 and also to Banerjee v. Potnis (1924) Cri.L.J. 922. It was laid down in the last case that a person is not an accused for the offence of criminal breach of trust by reason of his having actually caused wrongful loss to anybody; it is enough that he intended to do so, even if no wrongful loss ever was in fact caused. In Jaikrishnadas Manohardas Desai and Another Vs. The State of Bombay, it was laid down that the prosecution was not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for a property entrusted, if proved, may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion. Similarly, in Akshoy Bose''s, case (1934) 38 C.W.N. 467 it was laid down that if the money entrusted with the accused or received by him for a particular purpose was not used for such purpose, neither was the same returned by the accused in accordance with his duty, it lies on the accused to prove his defence if he has set up any. If the defence is not proved and the circumstances are such as proved the dishonest conversion, the charge is established.

We now take up the last point whether there was any illegality in the charge for which the conviction is to be set aside. The learned Advocate for the Appellant urged, in the first place, that the place of offence has not been mentioned and secondly, that the period during which misappropriation took place has not been stated. Thirdly, it is urged that there should have been separate charges for the number of misappropriations'' made. Fourthly, the manner of misappropriation stating the names of several persons to whom fictitious sales are alleged to have been made had not been stated in the charge and lastly, the word ''dishonestly'' has not been mentioned in the charge nor is it stated that there was any sale without permit or that the stock was removed from the place agreed upon.

On a reference to Sections 221, 222 and 223 of the Code of Criminal Procedure, it will appear from Section 222(1) that the time and place of offence has to be mentioned to give reasonably sufficient notice to the accused of the matter with which he is charged. In the present case, the agreements, exs. 1 and 2/1, have been proved which clearly show that the accused was to take delivery of the stock of articles from the Railway with the permit from the Sub-divisional Officer, Lalbagh and the articles were to be kept in the stable of Nawab Bahadur of Murshidabad. There was thus sufficient notice of the place from the evidence on record though not specifically mentioned in the charge itself. Besides, the notice of place is mainly required in connection with the jurisdiction of the Court. But the Special Court has jurisdiction over the whole of West Bengal and accordingly, the place of the offence in the charge loses its importance in the present case.

As regards time of misappropriation or criminal breach of trust it is not possible for the prosecution to state precisely where and how misappropriation took place. But it is clear from exs. 3 and 4 that the Appellant was entrusted with 400 bundles of G.C. sheets on May 13, 1953 and May 15, 1953. The prosecution evidence also shows that no stock was found when there was inspection before a Magistrate on April 28, 1954. Stock register (Ex. 51) shows that 21 bundles were sold by the accused on permits between November 25, 1953 and December 5, 1953. The charges, accordingly, mentioned that criminal breach of trust was committed between December 5, 1953 and May 15, 1954, when the last sale is shown. There was thus no vagueness in the charge and the Appellant got as much notice as could be given to him, in the circumstances of the case, as to the period during which criminal breach of trust took place and the period covered is less than one year.

It was next urged before us that separate charges should have been framed in respect of separate misappropriations, represented by separate cash memos. But this does not seem to be necessary in view of Section 222(2) of the Code of Criminal Procedure. When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charges so framed shall be deemed to be a charge of one offence within the meaning of Section 234.

It was next urged that the names of several persons to whom fictitious sales are alleged to have been made should have been mentioned in the charge. But it will appear from Section 233 that the manner of committing offence need be stated when otherwise the charge is not sufficient to give notice to the accused. In the present case, there was sufficient notice to the accused in the charge that breach of trust was committed by showing fictitious sales. The evidence on record is clear enough and it was further clarified by painstaking examination u/s 342, Code of Criminal Procedure by the Special Judge when the names of such witnesses to whom the fictitious sales were mentioned. There was substantial compliance with the requirement of law as to the manner of committing the offence so as to give sufficient notice to the Appellant.

Next it was urged that the charge should have mentioned ''dishonestly'' and ''sale without permit'' and ''removal of the stock in violation of the terms of the legal contract between the parties''. It is no doubt true that a more careful charge should have mentioned all these things. But it is clear from Section 221(2) and (5) of the Code of Criminal Procedure that if the law which creates the offence gives any specific name, the offence may be described in the charge by that name only and the fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. At any rate, we are satisfied that no prejudice was caused to the accused and that defect or error, if any, in the charge was curable under Sections 225 and 537 of the Code of Criminal Procedure. The accused was represented by a lawyer and he conducted his defence on the points made out by the prosecution. Under such circumstances, the error or defect, if any, is not fatal. Reference may be made to Moti Das and Others Vs. The State of Bihar, and Babulal Chowkhani v. King-Emperor (1938) 42 C.W.N. 621 and William Slaney''s case AIR 1956 116. "The distinction between illegality and irregularity is one of degree and not of kind. Whatever be the irregularity it is not considered fatal unless prejudice was caused." For all these reasons, we are satisfied that the trial and the conviction in the present case had not been vitiated by any defect or irregularity in the charge which caused no prejudice to the accused.

We, therefore, hold that the Appellant was rightly convicted u/s 409, Indian Penal Code. The question of sentence may be considered as urged by the learned Advocate for the Appellant. The accused was aged 54 at the time of examination u/s 342, Code of Criminal Procedure, in 1962. He is about 60 years of age by now. The appeal has been pending for over six years. The crime took place in 1953-54, fifteen years back. It further appears that there was delay in issuing permits in respect of G.C. sheets in question which were stocked by the Appellant in May 1953. There is no explanation on record why no permit was issued till November 25, 1953, until after the Appellant himself sent a letter on November 10, 1953, for issuing permits. The stockist had to pay the price for the G.C. sheets in question and the money was blocked for more than seven months before he disposed of this property in breach of trust. Considering all those circumstances it appears to us that the sentence may be reduced to six months from the sentence of four years imposed by the learned Special Judge.

Accordingly, it is ordered that the appeal against conviction be dismissed and his conviction u/s 409, Indian Penal Code, be confirmed, but the sentence is reduced to six months in place of four years imposed by the learned Special Judge. The accused do surrender to the bail bond and serve out the sentence.

A.N. Chakrabarti, J.

I agree.