Sukhdeo Narain vs Emperor

Wort, J.—The learned advocate on behalf of the Crown has said everything that can be said against this rule which was directed against the conviction by the Magistrate of the applicant for an offence u/s 408, I.P.C.

The applicant was sentenced to be imprisoned until the rising of the Court and was fined a sum of Rs. 500. It is important to state the facts that have been found both by the Magistrate trying the case and the Session Judge before whom an appeal was preferred.

The applicant was a clerk in the employment of the society known as the Bairagi Bigha Co-operative Bank which appears to have been affiliated to the Central Co-operative Bank at Gaya. Three persons one Bansi, Mitan and Dahu were members of that society and on 21st September Bansi repaid a loan of Rs. 24 to the society, Mitan on the same day paid a sum of Rs. 26 and Dahu on 4th November of the same year that is 1925, repaid a loan of Rs. 114.

It is stated and found as a fact by the Courts below that these members at the time of repaying the loans instructed the applicant to pay the said sums into the Central Bank at Gaya. But as the events which have happened prove this was not done and on 7th November 1925 he was made a member of the society and on the same day the society granted him a loan of Rs. 240. It is stated that the resolution under which the applicant was granted the loan of Rs. 240 was ultra vires for several reasons, amongst others that the applicant was not eligible as a member. Incidentally the lower Court states that the members of the society which passed these resolutions were illiterate persons very much in the hands of the applicant, and it would appear from the judgment of the Courts below that the learned Sessions Judge and the Magistrate were of the opinion that these resolutions were passed largely at the instigation of the applicant. It is also necessary to notice that on 20th September that is the day before the first repayment was made (that is to say, the repayment by the member Bansi) there was cash in hand to the extent of Rs. 69-6-9. It will be seen therefore that there was on 4th November approximately this sum in hand which was ultimately paid by the society to the applicant as a loan.

The learned Sessions Judge refers to the resolutions which was passed by the society granting the applicant a loan fn these words (and also in referring to the decision of the trial Magistrate,):

he was of the opinion that the resolution of the society formally granting the loan of Rs. 240 to the accused was a transparent device on his part to legalise his illegal acts and that the award referred to by the aooused had not the efleot of exonerating him from the charge.

It is unnecessary to deal with the award which has ultimately been made by the. Registrar against this member excepting; to say that having regard to the fact, that the Registrar did make the award it would be difficult for the society to allege that the applicant was not legally a, member of the society. No further mention need be made of that matter. Again referring to the statement of the learned Sessions Judge in the words that:

It was an apparent device on his part to legalise his illegal acts

it is necessary to ask the question of what were the illegal acts which were legalised. I do not wish to be too particular as to the words used by the learned Sessions Judge; but assuming that one places their face value upon them it would seem to appear that the very fact that an act was legalised it would be difficult to show that a criminal offence had been committed. But I have to ask myself as I have already stated what-was the illegal act committed by the accused which would constitute this offence. Now it is stated by both the Courts that, the offence was committed by reason of the fact that the accused disobeyed the instructions of the members what repaying the loans to which I have referred. The instruction was according to the finding of the Courts below to pay these sums into the Bank at Gaya. It is found as a fact that it was the custom for him to receive and retain money paid into the society, that he granted receipts for these sums'' now in question and entered them in the cash book.

Let us assume for the purpose of this case that the members were in a position to give such directions. What would be the effect of disobedience of such directions? To say that it would be sufficient in my judgment that that would constitute disobedience and disobedience alone, the disobedience disclosed a criminal state of mind. As a fact these members as far as I can understand the facts of the case had no authority to give such instructions. They were certainly members of the society but it was society itself either in the meeting or by the direction of the officers of the society who had the authority to direct its employees of whom the applicant was one as to the disposal of moneys belonging to the society. In my judgment these three persons repaying the loans had no such authority to give such instructions; but as I have already stated assuming they had, the disobedience of those instructions would be disobedience and nothing more. There is no evidence apart from this disobedience that the applicant appropriated the sums to his own use.

It is then suggested that by reason of this resolution which was claimed to be ultra vires that what in my judgment was so far innocent in some way became criminal. The learned Sessions Judge as I have already pointed out puts the case in the other, way by saying that the applicant legalised his illegal acts but as I have already stated the disobedience of the instruction was not an illegal act in the sense of its being criminal and in my judgment certainly the resolution even although it was ultra vires would not turn an innocent act into an illegal or criminal one.

It may very well be that the whole of these circumstances surrounding this case are irregular and not in accordance with the rules of the Society. But in my judgment quite clearly no criminal offence has been disclosed by the finding which have been arrived at by the Courts below, and in those circumstances the conviction must be set aside and the fine if paid remitted.