Yoganand Das vs Emperor

Adami, J.—The petitioner was appointed Manager under the Court of Wards of the Barwari estate, both of the 7 annas and of the 9 annas share on 3rd November 1925. When he joined he had to give the undertaking as Manager of the Court of Wards, which is required under the rules of the Board's Manual, that in the event of any breach of trust, neglect or omission being proved against him as Manager he would pay to the Collector a certain sum of money as liquidated damages. The release of the 7 annas estate from the Court of Wards was directed by the Board of Revenue in May 1929 and in that month the executors of the 7 annas estate took overcharge under the Board's rules. In August 1929 the petitioner's accounts as Manager were put before the Collector and passed and audited. In December 1929 the accounts were finally passed and Rs. 1,000 which had been given by the petitioner as security was returned. On 18th July 1930 a complaint was laid by the Head Clerk of one of the executors of the 7 annas estate, namely, Tribeni, to the effect that the petitioner had during the course of his management purchased certain articles of which a list was given including two durries, a fountain pen, a bag, a table lamp, racks, a lock and bucket, the total value of which was Rs. 100 and that these articles had not been returned to the estate when he gave over charge. It was alleged that the petitioner had committed criminal breach of trust with regard to these articles. The Magistrate before whom the complaint was made summoned the petitioner u/s 409, I.P.C., and when he appeared he took objection that the Court had no jurisdiction to put him on trial on the charge brought against him. The objection was overruled and therefore the petitioner has come up before this Court asking that the proceedings taken against him should be quashed.

One the grounds put forward by the petitioner was the following:

That the petitioner's accounts having been audited and passed, the petitioner having been discharged by Government and his security having been refunded after the Court of Wards whose servant the petitioner was, had been satisfied that the petitioner had given a proper account of his stewardship according to the rules, the Court below ought to have held that no case u/s 409, I.P.C. lay against the petitioner.

It is on this ground alone that a rule was issued by this Court.

To me it appears that the whole proceedings taken against the petitioner were misconceived. In the first place, the complaint was not brought by the executor or by any person in trust for whom the goods were purchased and held. The Head Clerk was sent to lay the complaint. But the cases of Krishna Lal Dhar v. Emperor AIR 1921 Cal. 431 and Santok Chand v. Emperor [1919] 46 Cal. 432 are the decisions on which I would rely for finding that the proceedings in this case against the petitioner should be quashed. In the proceedings u/s 409 the application should have been made first to the Collector, for whom the estate was held in trust by the petitioner as manager. It has been remarked in the case of Krishna Lal Dhar v. Emperor AIR 1921 Cal. 431 that though the mere fact that accounts have been filed and have been passed by a Court does not absolve the administrator, as the petitioner was in that case, from his liability for any particular sums of money misappropriated by him, and if a suit can be maintained against the administrator for sums misappropriated by him, even though his accounts might have been passed by the Court, he could still be criminally prosecuted without the sanction of the Court, nevertheless where the complaint is one of criminal breach of trust the case is different. The estate was entrusted to the petitioner not by the complainant and not by the executor, who deputed the complainant to lodge the complaint, but was entrusted to him by the Collector as representing the Court of Wards. The charge of criminal breach of trust could not be maintained against the petitioner except with the sanction of the Court of Wards through the Collector who appointed the petitioner Manager of the estate under the Court of Wards.

Another point which must be mentioned is that the executor has made absolutely no enquiry from the petitioner as to what has happened to the articles.

There is no doubt that these articles were purchased by the petitioner and that the vouchers for the purchase were examined, audited and passed. They were articles which were bought by the petitioner in the years 1927, 1928 and 1929. Surely if the executors wished to know what had become of these articles, the first person from whom they would have enquired would have been the petitioner himself. No enquiry was made, and this rather points to the fact that the complaint was not altogether laid without some desire to bring the petitioner into trouble. To me the criminal case appears to be one which should never have been lodged or at least should not have been lodged without previous reference to the Collector who would have taken such action as was necessary after he had made an enquiry. The proceedings against the petitioner must be quashed.