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TMI Blog1964 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board. The Third Additional Sessions Judge, Jabalpur, acquitted him holding, in main, that entrustment was not proved. Aggrieved by the appellate judgment and order of acquittal the State has filed this appeal, 3. Case for the prosecution was that in pursuance of a conspiracy between Mategaonkar and Ghosh, who were employed as clerks in audit and account section of the Electricity Board, they tamper-ed with the duplicate copy of an order placed by the Electricity Board with Vijay Trading Corporation, Jabalpur. The name Vijay Trading Corporation was scored oat and in its place the name 'Janta Motor Cycle Co., Jabalpur was overtyped. On the basis of a forged bill dated 19th October 1958, purporting to have been received from the Janta Motor Cycle Co., a cheque No. 199832 dated 2nd December 1958 was drawn for Rs. 3423.50 nP. in favour of the Janta Motor Cycle Co. This cheque was handed over by Mategaonkar to the Janta Motor Cycle Co. against the purchase of a Motor Cycle for himself, representing that a loan had been advanced to him by the Electricity Board. The cheque was encashed by the Janta Motor Cycle Co. through the Central Bank of India Ltd , on 4th December 1958. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity as such public servant. He further said that it was necessary for making out an offence under Section 409 of the Penal Code that the entrustment should have been for a particular purpose and that it should have been shown that the property was accepted by the public servant as such, and that in his capacity as such public servant he was authorised or required to accept it. He pointed out that it was not the case of the prosecution that the cheque was to be given to the Janta Motor Cycle Co. for a particular purpose; nor was it its case that anything else was to be bought from it, but the case was rather to the contrary. Ultimately he found that entrustment was not proved and set aside the conviction. 7. The main questions which we are called upon to answer in this appeal are two: (1) Whether the respondent used the cheque for Rs. 3423,50 nP. belonging to the M. P. Electricity Board in purchasing a motor cycle for himself. (2) If so, what offence was committed by him. 8. As we shall presently discuss, the essence of the guilt lies in the respondent's purchasing a motor cycle for himself with the cheque drawn by the Electricity Board. And, that fact is prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Janta Motor Cycle Co. 10. Ex. P-9 is the receipt dated 10th June 1959 under which Mategaonkar sold the Rexy auto-cycle No. M, P. J. 1656 to Dr. S. P. Ojha for Rs. 1475/- acknowledging receipt of the price in full. In his statement under Section 342, Criminal Procedure Code, Mategaonkar admits to have sold the autocycle No. M. P. J. 1658 to Dr. Ojha for Rs. 1475/- and to have passed a receipt for the price. 11. In the cash book of the Janta Motor Cycle Co., there is an entry of receipt of Rs. 3423.50 nP. on 4th December 1958 by cheque. Against this amount, on the same date, there is a debit entry for Rs, 1685/-. This entry is supported by a cash memo of the same date in the name of Shri P. W. Mategaonkar of M. P. Electricity Board, Jabalpur, for Rs. 1685/-. Then again, in the cash book of 1959, there are entries made on 13th May 1959 adjusting the balance of the cheque, Rs. 1675/-, and the price fetched by the auto-cycle on resale, Rs. 1475/-. 12. It is worthy of note that the respondent claimed to have paid the price of the auto-cycle in cash when he purchased it from the Janta Motor Cycle Co. Likewise, he claimed to have purchased the motor cycle against cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement is attacked by the defence as one made because of inducement, threat or promise from Mr. Dasgupta. He was cross-examined at great length. The witness said that he did not make any promise, nor did extend any inducement, nor did he threaten him. He says that he recorded the statement as it was made before him. In our judgment, the evidence of Mr. Dasgupta can be safely relied upon. The statements which he recorded are all in the form of questions and answers. Twenty-three questions were put to the respondent and the answer to every question was separately recorded. Suffice to reproduce some of them: Q. Are you involved in the embezzlement case amounting to Rs. 3423.50 nP paid to M/s Janta Motor Cycle Co. Omti, Jabalpur ? Ans. Yes I am. Q. Who else is involved in this ? Ans. Shri A. K. Ghosh, L. D. C., at present Divisional Office, Jabalpur, who was in R. A. O.'s office in December 1958. Q. When did you do this embezzlement ? Ans. 4-12.58. Q. Who took the cheque ? Ans. I took the cheque from Shri Dube, L. D. C., R. A. O. Q. You know that Janta Motor Cycle Co. do not deal in the material entered in the bill, then why did you put their name ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by inducement, threat or promise, the accused could have reported the matter to superior officers, particularly when the Head Office of the Electricity Board is located at Jabalpur itself. 15. Merely because Mr. Dasgupta was a person in authority and that at the end of the statement he put it to the deponent whether he was prepared to return the money with interest or that he gave a couple of days to the accused for depositing the money, do not go to show that there was any inducement to the accused for making a confession. In our opinion, the Additional Sessions Judge was in serious error when he observed that the circumstances were such that they did not altogether rule out the possibility of inducement having been given to Mategaonkar and that the extra-judicial confession (Ex, P-10) was inadmissible in evidence. According to his plain reading of ordinary human nature, the Additional Sessions Judge thinks that a subordinate suspect has very slim chance of being believed against his superior officer and has probably a justifiable apprehension that a complaint against his superior officer would minimise his chance of being saved and would enhance the possibility of his bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved beyond any shred of doubt that it was the respondent who delivered the cheque to the Janta Moter Cycle Co. in payment of the price of the auto-cycle and thereafter of the motor cycle which were purchased by him for himself. In our opinion, the conclusion of fact reached by the trial Magistrate was supported by evincive proof and the Additional Sessions Judge's interference was unreasonable and unjustified. 19. This brings us to the question what offence was committed by the respondent. Entrustment is an essential element of the offence defined in Section 405, Penal Code. The word entrust is not a term of art. In common parlance it embraces all cases in which a thing is handed over by one person to another for specific purpose. Entrustment need not be express; if may be implied. We see no reason not to agree with the Additional Sessions Judge that the prosecution could not establish a case of entrustment. As no case of a trust, actual or constructive, was made out, there could be no breach of trust. 20. But it is absolutely plain to us that the respondent misappropriated and converted to his own use the cheque. Therefore, there is no escape from Section 403 of th ..... 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