Bhagat Ram vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 February 1954

Coram: Jagannadhadas

In this case, the Court noted that two appeals were filed by special leave against a single judgment of the High Court of Punjab exercised in its revisional jurisdiction. The appellant, who was the same individual in both appeals, had been convicted by the Magistrate of the First Class in Hoshiarpur in two separate trials, one trial for an offence under section 420 of the Indian Penal Code and the other trial for an offence under section 409 of the same Code. Both convictions were affirmed by the Sessions Judge on appeal and subsequently upheld by the High Court in revision. Because the two charges arose from matters that were connected and the evidence, although recorded separately, was substantially the same, the High Court had chosen to dispose of the two matters in one common judgment, and the Supreme Court found it appropriate to follow the same approach.

The appellant, identified as Bhagat Ram, held the position of Civil Nazir in the office of the Senior Subordinate Judge in Hoshiarpur. The principal accusation against him was that, in his capacity as a public servant, he committed criminal breach of trust by misappropriating a sum of Rs 3,496 5/- of Government funds during the period from 1 December to 18 December 1948. A further charge alleged that, in order to obtain money to conceal the embezzlement, he attempted to raise a loan of Rs 3,350 -- by way of a cheque-loan from a businessman named Seth Brij Lal – and that he did so by falsely representing that the money was required by the then Subordinate Judge, thereby dishonestly inducing Mr Brij Lal to issue the cheque for the said amount.

During the material period, the office of the Senior Subordinate Judge of Hoshiarpur was occupied by Shri K. S. Gambhir, who was acting in place of the regular Senior Subordinate Judge, Shri Bhandari, who himself was officiating as the District and Sessions Judge. Shri Gambhir’s tenure in that role extended from 13 November to 16 December 1948. Under administrative arrangements made by the High Court, the Senior Subordinate Judge of the district was vested with certain duties, one of which involved drawing and disbursing, on a monthly basis, the salaries of the civil-court establishments at Hoshiarpur as well as those of three outlying tahsils in the district, namely Una, Dasuya and Garhshankar. The usual procedure for salary disbursement required the preparation of a salary bill covering all four tahsils, which was then presented to the Treasury around the first day of the month. Under the normal practice, the salary for the Sadar tahsil of Hoshiarpur was drawn in cash, while the salaries for the three other tahsils were drawn through cash orders that authorized local payment. The alleged embezzlement pertained to the salary bill for the month of November 1948. Departing from the established practice, the salary bill for that month was drawn entirely in cash for all four tahsils. This departure was authorized by the Subordinate Judge, Shri Gambhir, but the actual cash amounting to Rs 5,576 6/- was

The appellant received from the Treasury on 4 December 1948 a cash sum of Rs 5,576 ½, the amount that had been drawn for the salary bill of November 1948. Within a few days he disbursed two portions of that money: Rs 811 ½ was paid to the Hoshiarpur Sadar establishment and Rs 1,420 was paid to the Garhshankar Tahsil. The salaries due to the Una and Dasuya Tahsils, which together amounted to Rs 3,347 ½, were not paid out. On 14 December the District Judge of Hoshiarpur received a telegram from the Subordinate Judge of Una, complaining that the civil establishment pay of his Tahsil had not been received and requesting that the District Judge arrange for its payment. The prosecution alleged that the appellant had misappropriated the cash and that, after receiving the telegram, he became aware of the urgency of finding the missing money. In response, the appellant allegedly sought to raise a loan. On 16 December he approached two individuals, identified as Hakim Rai and Lala Shiv Dayal, claiming that the funds were required for the Subordinate Judge and asking for loans. When those attempts failed, he turned to a third person, Seth Brij Lal, requesting Rs 3,350 and making the same representation that the money was needed for the Subordinate Judge. To support his request he showed the three men a document described as a ‘Ruqqa’ purportedly issued by the Subordinate Judge, authorising him to raise the sum.

On the morning of 17 December Seth Brij Lal gave the appellant a bearer cheque drawn on the local Imperial Bank in favour of Shri K. S. Gambhir, the Subordinate Judge. The appellant presented that cheque to the bank at ten o’clock that same morning. Before the bank could honour the cheque, Seth Brij Lal went to the court premises, met the Subordinate Judge, and informed him that he had issued the cheque to accommodate the appellant. The Subordinate Judge expressed surprise at the transaction and repudiated the cheque. Consequently, Seth Brij Lal hurried back to the bank, halted the payment, retrieved the cheque from the bank officials, and reported the matter to the Subordinate Judge. The Subordinate Judge thereafter recorded a statement from Seth Brij Lal. Both the statement and the returned cheque were forwarded to the police for investigative purposes.

The police, prompted by the suspicion that had arisen concerning the appellant’s handling of the drawn funds, promptly examined the relevant accounts and discovered that the salaries of the Una and Dasuya establishments had not been disbursed. In view of this finding, two criminal complaints were lodged against the appellant: one for an offence under section 420 of the Indian Penal Code, filed on 17 December at 8 : 30 p.m., and another for an offence under section 409 of the Indian Penal Code, filed on 18 December. It also appears that the appellant left Hoshiarpur on 17 December, submitting an application to the Subordinate Judge for a one-month leave of absence. He could not be located for several days and was ultimately apprehended on 3 January 1949.

It was recorded that the appellant’s brother deposited the entire amount on 21 December 1948. The Subordinate Judge, Shri Gambhir, also called the two men, Shiv Dayal and Hakim Rai, who the appellant had approached to obtain a loan, and he recorded their statements on 19 December; these statements were subsequently sent to the police for investigation. The appellant admitted substantially all of the material facts that had been set out earlier in the proceedings. He, however, put forward a defence that the misappropriation of the money was committed by the Subordinate Judge, Shri Gambhir, and that he had acted at the judge’s request and under the judge’s specific authority when he attempted to raise a sum of Rs 3,350 on 16 and 17 December from the three persons previously mentioned. To support this defence the appellant examined a witness and produced a document described as a ‘Ruqqa’, Exhibit D-A, dated 4 December 1948, which purportedly bore the English signature of Shri K S Ghambir acknowledging receipt of “a sum of Rs 3,500/- out of the pay account of the process-serving establishment from the Civil Nazir for a day”. That same ‘Ruqqa’ showed an endorsement indicating a repayment of Rs 150/- on 8 December, which, if genuine, would amount to a receipt for the remaining Rs 3,350 that the appellant claimed had been misappropriated; he relied on this document with respect to the charge under section 409 of the Indian Penal Code. Regarding the charge under section 420, the appellant asserted that on 16 December the Subordinate Judge had given him another ‘Ruqqa’, signed by the judge, expressly authorising the appellant to raise a loan of Rs 3,350 on the judge’s behalf locally, and that he had used that authority in his attempts to obtain the loan. That second ‘Ruqqa’ was not produced, but the appellant maintained that it had been returned to the Subordinate Judge after being shown to Brij Lal. He further relied on the testimony of the very witnesses whom he claimed to have approached for the loan in support of his defence. Both the trial court and the appellate court rejected the appellant’s defence, convicted him of both offences, and sentenced him to imprisonment together with a fine. On revision, the High Court affirmed the convictions but held that the fines were unnecessary and therefore limited the punishment to the term of imprisonment awarded. After the arguments on the appeals were fully heard, it was reported to the Court that the appellant had already served the term of imprisonment imposed. Nevertheless, the Court felt compelled to express its view on the merits because the conviction had adversely impacted the appellant’s official employment and had caused him serious loss and dislocation in his life. On the basis of the foregoing statement of the case, the Court concluded that the appellant must be found guilty of the offences charged unless his defence can be shown to be reasonably probable.

In assessing whether the defence could be established, the Court observed that it must be shown to be reasonably probable. During the trial, various circumstances relating to the questioned transaction were brought out. Both the prosecution and the defence relied on these circumstances to support their respective narratives. The learned Judge of the High Court, who considered the matter on revision, summarised the factual matrix in his judgment. He stated that the issue was straightforward: either Mr Ghambir was the villain who forced Bhagat Ram to embezzle a sum of Rs 3,500 on 4 December for Mr Ghambir’s benefit and then falsely accused Bhagat Ram of trying to cheat the money-lender Seth Brij Lal, the loan actually having been obtained on behalf of Mr Ghambir; or, alternatively, Mr Ghambir was a careless officer who allowed himself to be deceived in the pay-bill matter on 4 December and was subsequently falsely blamed by Bhagat Ram, whose embezzlement of Rs 3,500 could no longer be hidden because of urgent demands for payment by the process-serving establishment at Una and Dasuya. He further observed, “It cannot be denied that there are circumstances in the evidence on the record which point towards both conclusions” (underlined here in ‘ ’ by the judge). After weighing these alternatives, the High Court judge concluded that the lower courts had examined the circumstances on both sides with care and had correctly held that Bhagat Ram, the appellant, was responsible for the embezzlement and that his attempt to shift blame onto the Subordinate Judge, Shri Ghambir, was unfounded.

Having turned to the merits of the case, the Court noted at the outset that the conviction of the appellant was not based merely on accepting Shri Ghambir’s oath denying any misappropriation by himself or any authorisation he allegedly gave to the appellant to raise money on his credit. Instead, the conviction rested on a thorough consideration of the surrounding circumstances disclosed by the evidence. All three courts – the trial court, the Sessions Court and the High Court – expressed severe criticism of the Subordinate Judge’s testimony. The trial magistrate described a material portion of Shri Ghambir’s evidence as “a piece of falsehood unworthy of a judicial officer of the standing of Mr Ghambir.” The Sessions Judge, in his concluding remarks, said: “Before concluding I would like to say that though I have exonerated Mr Ghambir from all complicity in the matter of the misappropriation of Government money, I cannot exonerate him from all blame in connection with this affair. He has come in for a good deal of criticism which in my judgment is not altogether unmerited at the hands of the learned trial Magistrate both in regard to the truthfulness of the statement he…” This assessment underscored that the conviction was founded on the totality of the evidentiary record rather than on any single, uncorroborated assertion.

The Court observed that the accused not only made statements in Court but also assumed the roles of both complainant and investigator in the matter. The High Court Judge concurred substantially with this observation. Consequently, the issue that the Court needed to address was whether the facts that had been disclosed were sufficiently clear to demonstrate that the defence advanced by the accused was either false or highly improbable. In circumstances such as these, where the prosecution relies on inferred facts, it is well settled that the totality of the circumstances must be such that it defeats any claim of innocence on the part of the accused and that the offences can be attributed to him beyond a reasonable doubt. The Supreme Court reaffirmed this principle in the decision of Hanumant v. State of Madhya Pradesh, (A), citing the passage on pages 345-346, wherein it was stated: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” The Court noted with concern that the lower courts had not appeared to apply this fundamental approach. The first question therefore was whether, on the basis of the established circumstances, it could be proved beyond doubt that the appellant himself had misappropriated the sum in dispute. At the outset, two circumstances were pointed out as being adverse to the appellant: first, that the sum had been drawn by him from the Treasury; and second, that the amount remained unpaid to the entitled parties, namely the Civil Establishments at Una and Dasuya. The appellant, however, contended that the money had been temporarily taken from him by the Subordinate Judge for the judge’s own purposes. Apart from the alleged receipt exhibited as Exhibit D.A., which the Court said would be considered later, the defence also relied on additional circumstances. It was highlighted that the possibility of misappropriation by either party arose because the normal practice of drawing the salaries of outlying Tahsils by cash orders had been abandoned, a deviation that had been initiated by the Subordinate Judge himself with his full knowledge, although he now denied any such knowledge. Evidence showed that the salary bill originally presented to the Treasury bore a heading indicating that the amounts for the three outlying Tahsils were to be paid by

In this case the Court observed that the salary bill, which had originally been presented to the Treasury with a heading directing that the amounts for the three outlying Tahsils should be paid by cash-orders, was returned on 4 December for correction of a minor mistake in its details. The evidence demonstrated that before the corrected bill was re-presented to the Treasury, the heading containing the cash-order instruction was struck out under the signatures of the Subordinate Judge at both ends of the note, thereby converting the bill into one authorising payment of the entire amount in cash to the appellant. The original bill, which had been exhibited, likewise displayed this alteration. In addition to this authorisation to draw the whole sum in cash, which represented a departure from the established practice, the evidence disclosed another circumstance. The Subordinate Judge of Una had sent a telegram to the District Judge of Hoshiarpur on 14 December complaining that the pay of the Civil establishment had not been disbursed up to that date. The District Judge forwarded the telegram to Subordinate Judge Shri Ghambir on the same day, marking it “immediate”. No further action appears to have been taken by the Subordinate Judge. Instead, certain memoranda were issued to the Subordinate Judges of the outlying stations directing that their respective Nazirs should be sent to the Sadar station to receive the salaries of their establishments. This directive was issued as part of a general order, exhibited as Ex. P. W. 9/A, which read: “Generally salaries of officials in the Mufassil are received late. To avoid this delay it is proposed that Nazirs posted at the Mufassil should personally come to the Sadar along with their respective pay bills in the first week of every month and should not send anybody else so that they should take with them salary of the establishment. As a rule, pay is drawn at the Sadar on the first day of every month. Hence, all Mufassil Nazirs should bring with them their pay bills within the first week of every month and return the same day after receiving salaries of their establishments to avoid cash-order or any other trouble. Acquittance roll shall be kept at the Sadar. Nazirs may also take them along with salaries. This is for urgent information. ORDER This Robkar be sent to the Sub-Judge, Una, with the request that the Nazir may be kindly instructed to comply (with the above instructions) in future.” Thus, the Court noted, not only had there been a deviation from previous practice by allowing cash payment for the outlying stations under the specific orders of the Subordinate Judge, but when a delay in payment was raised as a grievance, no substantive remedial action was taken. Rather, the response amounted to an attempt to gain time by purportedly instituting a general change in future practice and by instructing the outlying Nazirs to travel to the Sadar for receipt of monies. The Subordinate Judge subsequently disclaimed responsibility for these circumstances, claiming that his signature on the struck-out line in the salary bill was a routine act performed without awareness of its implications, and that the instructions in Ex. P. W. 9/A had been issued without his knowledge. He further asserted that the appellant alone had procured his signatures and issued the instructions. The Court, however, held that under the applicable rules the responsibility rested entirely with the Subordinate Judge and that such a disclaimer could not be readily accepted.

The Subordinate Judge claimed that he had signed the pay-roll merely as a routine act and that he was unaware of any consequence arising from it, and that the instructions recorded in Exhibit P W 9/A had been issued without his knowledge. He further maintained that the appellant alone had obtained his signatures and had been responsible for issuing those instructions. The Court observed that, under the applicable rules, the entire responsibility rested with the Subordinate Judge, that the responsibility was a serious one, and that a denial of that responsibility could not be accepted lightly. The Punjab Financial Rules provide that “the head of an office is personally responsible for every pay drawn on a bin signed by him or on his behalf until he has paid it to the person entitled to receive it and obtained his receipt, duly stamped where necessary on the office copy of the pay bill.” Likewise, the Rules and Orders of the Punjab High Court state that “as the Government is responsible for the due application of all property and money received in accordance with law by any court of justice, the officers presiding over such courts must be held directly and personally responsible for any loss caused by failure to observe rules or neglect on their part to exercise supervision and control over the officials subordinate to them in accordance with law and the orders issued by the High Court.” To rebut the Subordinate Judge’s claim that he had no knowledge of the earlier practice, evidence was produced showing that the practice had been within his notice on previous occasions, as demonstrated by Exhibit P W 6/D A and Exhibit B W 6/D C. When confronted with these documents during cross-examination, the Subordinate Judge offered no answer other than stating that he did not remember. Considering the contents of the documents and their dates, the Court found that answer to be false. The Court also found no doubt that the orders contained in Exhibit P W 9/A had been issued under the Subordinate Judge’s specific instructions. The Subordinate Judge attempted to rely on the fact that Exhibit P W 9/A was signed by P W 6 and that its wording was in the appellant’s handwriting. However, P W 6 testified that the Subordinate Judge had admitted to him that he had instructed the appellant to send the Mofassil Nazirs to receive payment at the Sadar office. P W 6 further testified that he had made the same admission before Shri Bhandari during the departmental enquiry against the appellant that proceeded while the prosecution was pending. Shri Bhandari’s evidence confirmed this admission, whereas the Subordinate Judge, Shri Ghambir, falsely denied having made such an admission. The Court concluded that, if the foregoing findings were correct, the explanations offered by the Subordinate Judge were untrue, and that the Subordinate Judge had not only authorised cash to be drawn for outlying stations instead of merely issuing cash-orders, but had also failed to take any notice of the delay in disbursement that had been specifically brought to his attention, restricting his action only to the issuance of instructions to the outlying stations.

In this case, the Court observed that the Subordinate Judge had directed that the Nazirs be sent to Sadar to receive the money, and it was therefore highly probable that the Subordinate Judge himself was deliberately and primarily responsible for the failure to make the disbursement by 16 December. Against this background, the Court examined the appellant’s defence that he had actually handed the money to the Subordinate Judge. The appellant had produced a receipt marked as Exhibit D-A to support this claim. The trial Court and the two appellate Courts had rejected the receipt, although all three courts agreed that the signature on the document appeared to be that of the Subordinate Judge and that the Subordinate Judge denied having signed it. Despite acknowledging the apparent authenticity of the signature, the lower courts nevertheless declared the receipt a forgery. Their primary reasoning was that the mere appearance of the piece of paper on which the receipt was written indicated a forged character. The Court noted that it had examined the original “Ruqqa”, Exhibit D-A, and did not find the appearance alone sufficient to pronounce it a forgery. The trial and appellate Courts had suggested that the receipt might have been torn from a larger sheet that contained the Subordinate Judge’s genuine signature, leaving a blank space above it. However, the Court pointed out that the alleged blank space measured about two to three inches and began at the normal uncut top line of an ordinary sheet. It was difficult to see how such a large blank space could have been left above a genuine signature. The lower courts’ impression was therefore deemed speculative, and there was no evidence from the Subordinate Judge to support the likelihood of such a circumstance. Another factor that had influenced the trial and appellate Courts was the belief that the Subordinate Judge was highly unlikely to admit, on a document bearing his signature, that he had taken a sum from the pay account of the process-establishment even for a single day, because doing so would have destroyed his official position and future career. The Court acknowledged that this consideration carried weight, but it also observed that the same reasoning should have been applied to the appellant. The trial Magistrate had noted that the appellant possessed an unblemished service record, and the prospect of jeopardising that record would equally deter him from misappropriating the money for personal use. The Court therefore concluded that the lower courts had not appreciated that the consideration of potential damage to reputation and career applied with equal force to both the Subordinate Judge and the appellant.

In evaluating the allegation of misappropriation, the Court observed that the seriousness of the misconduct could not be considered less serious merely because the accused occupied a lower official post and received a smaller salary. The Court expressed concern that the lower courts appeared to have applied different standards to the Subordinate Judge and to the Civil Nazir without any justified reason, possibly doing so unconsciously. One of the principal factors that led the learned Judge of the High Court to accept the lower courts’ conclusion that Exhibit D-A was a forged document was the existence of two letters dated the day after the incident, namely Exhibit P.W. 6/C and Exhibit P.W. 6/D, which the appellant had sent on 18 December. The first letter was addressed to the clerk, Ramdas, while the second was addressed to a process-server, Barkat Ram. In Exhibit P.W. 6/D the appellant wrote the following statement: “On 4 December 1948, he took Rs 3,500 in cash and gave a ruqqa. But he took back that ruqqa on 17 December.” This categorical admission inclined the learned Judge to doubt the authenticity of the document now produced before the Court as Exhibit D-A, on the ground that the admission seemed to contradict the existence of the ruqqa referred to in Exhibit D-A.

Although that inference carried some weight, the Court noted that the accused, who had placed the ruqqa at the centre of his defence throughout the trial and who had affirmed the genuineness of both letters, had never been asked to explain how he could rely on the statement in Exhibit P.W. 6/D and yet also produce the document identified as Exhibit D-A in court. The Court recognised that no explanation of this apparent inconsistency had been obtained, and it was difficult to imagine what satisfactory explanation the appellant could have offered. On a careful comparative reading of the two letters, the Court found that the statement in Exhibit P.W. 6/D, which was being used to discredit Exhibit D-A, might have arisen from a momentary confusion. Exhibit P.W. 6/C, which presented a more detailed and categorical account of the material facts, indicated that only the second ruqqa dated 16 December had been returned to the Subordinate Judge, while the first ruqqa dated 4 December was mentioned only in the narrative. Consequently, the Court concluded that it was unnecessary to reach a positive finding that Exhibit D-A was genuine; rather, it was sufficient to hold that the lower courts’ conclusion that the document had been proved to be a forgery could not be accepted. The Court therefore stated that it could not agree with the view taken by the subordinate courts that the exhibit was a forgery. In this context the Court also deemed it relevant to examine whether the evidence indicated which of the two parties was more likely to have needed the money at the relevant time, a point duly noted by the learned Judge of the High Court.

In reviewing the aspect of whether the Subordinate Judge required any money at the relevant time, the Court observed that the High Court judge’s assumption that the evidence showed no indication of such a need was inaccurate. The evidence of the witness identified as PW 4, Shiv Dayal, was relied upon. Shiv Dayal testified that when the appellant approached him for a loan on behalf of the Subordinate Judge, he considered the request genuine because he already knew that the Subordinate Judge, Shri K. S. Ghambir, had purchased land and therefore he guessed that the judge might need money in connection with that transaction. The earliest statement of Shiv Dayal, entered as Exhibit P-B dated 19 December 1948, was made directly to the Subordinate Judge. In that statement he said: “He (the appellant) told me that the Sub-Judge had to repay the amount in respect of land. Since it was within my knowledge that the Sub-Judge, Shri Kartar Singh, had purchased land, I guessed that the said Sardar Sahib might have asked for money.” The Subordinate Judge himself, while being cross-examined, described his own dealings with land. He explained that he had offered a bid to purchase two plots of land that the East Punjab Government had released for sale to refugees at Hoshiarpur on 25-June-1948. He paid ten per cent of the price on the same day, an amount of about Rs 580. A month later the Government refused to confirm the sale, the money was refunded to the bidders and the balance remained unpaid. He further stated that he eventually obtained two plots, one in his own name and another in the name of his son Kewal Kishan, while a third plot was bought by his father-in-law. He recounted that he took Rs 300 to the spot, handed that sum to S. Harkishan Singh, ADM, and received a cheque for Rs 4,000 from his father-in-law. He believed that he gave that cheque to the accused to have it credited to his account with Punjab National Bank and that he gave another cheque, possibly for Rs 600 or Rs 700, either to his orderly Bhani Ram or to the accused. Although this testimony does not establish that the Subordinate Judge had a substantial financial requirement, it does suggest that there may have been a need for money related to his land transactions. The record does not show that any investigation was conducted into the circumstances of the Subordinate Judge’s land dealings, even though Shiv Dayal’s statement made to the Subordinate Judge on 19 December was forwarded to the police and was before them during the investigation. Consequently, the High Court’s remark that the Subordinate Judge may have had no need for money at the time cannot be given much weight. On the other hand, it is a matter not without …

In this case the Court noted that there was no evidence showing that the appellant needed any financial assistance at the relevant time. The Court observed that the appellant’s brother had repaid the entire amount on 21 December, clearly in response to the suggestion made in the letter marked Ex. P. W. 6/D. This swift repayment, the Court said, indicated that the appellant was able to command ready money for a crisis and could have covered the sum from his own resources if he had misappropriated it, rather than having to go to the open market and raise money by making false representations concerning the authority of the Subordinate Judge. Accordingly, the Court held that the defence put forward by the accused on this aspect could not be said to have been disproved or to be so improbable that his guilt was established beyond reasonable doubt. Turning to the other allegation, which formed the basis of the prosecution under section 420 of the Indian Penal Code, the Court found that, on the same basis, the appellant’s defence could not be regarded as improbable. If the appellant’s claim that the Subordinate Judge had taken the money from him is accepted as not improbable, then it follows that the claim that the attempts to raise the loan were made for the appellant and with his authorisation becomes probable. The Court pointed to corroborative evidence, namely the testimony of Hakim Rai (P. W. 5) and Seth Brij Lal (P. W. 14), both of whom affirmed that a ‘Ruqqa’ bearing the Subordinate Judge’s signature and authorising the raising of a loan of Rs 3,350 on his behalf had been shown to them. Although the original ‘Ruqqa’ had not been produced and P. W. 5 admitted he could not positively identify the Judge’s signature, he testified that he had read the document carefully and was satisfied that the Judge Sahib indeed desired money. The earliest statement, Ex. P/B dated 19 December, made to the Subordinate Judge and recorded by P. W. 5, set out the contents of the ‘Ruqqa’ as follows: “I (i.e. Sardar Ghambir Singh, Sub-Judge) need Rs 3,350 which I will repay to you after some days.” The Court emphasized that it is neither necessary nor feasible to hold definitively that this defence has been completely proved, but it also cannot be said to be improbable or false. Finally, the Court highlighted a striking feature of the case: the defence was elaborately and categorically set out in the very next day’s letter, Ex. P. W. 6/C. A careful reading of that letter shows a great depth of detail, making it highly unlikely to be a pre-emptive, fabricated defence.

The Court observed that the letter could not be described as an anticipatory false defence. It noted that the lower courts had practically ignored the letter, mentioning it only to attempt to discredit the defence. The Court pointed out that the lower courts had failed to appreciate the importance of the fact that many of the details set out in the letter were later confirmed by the testimony of prosecution witnesses numbered four, five and fourteen. Those witnesses were individuals about whom the appellant could not have been certain at the time he drafted the letter, making the later corroboration significant. The Court found it unusual for an accused in a case of this nature to articulate his entire defence so soon after the incident, and it was striking that the same defence later received substantial support from prosecution witnesses at trial. The only ground the learned judges offered for rejecting the letter was that a period of twenty-four hours had elapsed between the incident and the letter’s dispatch. In view of the letter’s specific nature, its contents, and the fact that it was sent by registered post the following day from a different location identified as Daulatpur by the postmark on the envelope, the Court was unable to accept the view that there had been sufficient time to fabricate a false defence. The Court concluded that the early presentation of the defence together with the extensive corroboration strongly indicated that the defence was likely to be truthful.

The Court further examined the various circumstances on which the lower courts had relied to hold the accused adverse. It considered most of those circumstances to be inconsequential and based on an inadequate appreciation of the surrounding facts. For illustration, the High Court judge had opined that “there was no necessity for the Subordinate Judge, Shri Ghambir, to repudiate the whole scheme when confronted by Seth Brij Lal on the seventeenth of December after the loan had in fact been raised and the money was about to be realised which would tide over the embezzlement and give Shri Ghambir a breathing space for some time, if in fact he was a party and indeed the principal figure in the embezzlement.” The Court held that this observation overlooked a crucial point: Seth Brij Lal had issued a cheque in the name of the Subordinate Judge himself. It was evident that, had the embezzlement, even if temporary, become known, the fact that the amount had been obtained on the basis of a cheque drawn in the judge’s name and that he had taken advantage of it despite being warned by Seth Brij Lal would have been a serious matter. The cheque, therefore, would have constituted strong evidence against the Subordinate Judge. The Court remarked that it was not unlikely that he had expected merely cash accommodation which

In this case, the Court observed that the appellant apparently expected that no documentary trail would remain if he proceeded with the cash arrangement, but when that expectation failed to materialise, he became aware of the danger to which he was exposed. The lower courts had been inclined to think that, had the appellant truly possessed the “Ruqqa” marked as Exhibit D A, which acknowledged receipt of Rs 3,500, he would have produced it on 17 December at the premises of the Imperial Bank when Seth Brij Lal stopped payment on the ground that the Subordinate Judge’s authorisation was misrepresented. The Court noted that the lower courts did not appreciate that the central question at that time was whether the loan had been obtained on the authority of the Subordinate Judge. For that purpose, the “Ruqqa” alleged to have been handed to the appellant by the Subordinate Judge on 16 December was the material document, not the “Ruqqa” dated 4 December. If the statement in Exhibit P W 6/C, that the 16 December “Ruqqa” was returned by the appellant to the Subordinate Judge at the suggestion of Seth Brij Lal, is true, the appellant may have become panicky on realising the mistake in returning it, especially in view of the imminent prosecution for an offence punishable under section 420 of the Indian Penal Code. The Court also referred to several other similar circumstances relied upon by the lower courts, but deemed it unnecessary to recount them at length. In the Court’s view, none of those circumstances could be legitimately treated as disproof of the appellant’s defence. The defence was not improbable on two grounds: first, the assertion that the Subordinate Judge had taken the money from the appellant as temporary accommodation; and second, the assertion that, being unable to restore the money within the expected time and faced with urgency, the Subordinate Judge had authorised the appellant to raise funds on his behalf. Accordingly, the Court concluded that the offences charged could not be said to have been proved against the appellant beyond reasonable doubt. The lower courts, in adopting the opposite view, had failed to observe the fundamental rule concerning proof of guilt based on circumstantial evidence and had proceeded on conjectures in a case where the circumstances were essentially balanced. They had applied varying standards of assessment to the accused and to the Subordinate Judge, and had virtually ignored a crucial circumstance favourable to the appellant—that he presented his defence on the very next day—a point that found considerable support in the prosecution’s own evidence.

In this case, the Court indicated that its intervention was necessary to avert a miscarriage of justice. It observed that the discussion above had set aside the allegation of a small alleged embezzlement of Rs 149, because the appellant’s explanation offered in answer to question number 7 dated 19-11-1949 was not considered improbable and the amount had been repaid. The Court then turned to another aspect that required examination. The receipt identified as Exhibit D-A, which the appellant relied upon, demonstrated that he deliberately delivered the money in his possession to the Subordinate Judge for the Judge’s use in matters other than the payment of salaries, albeit purportedly for a single day. The trial court had held that, even on that footing, the offence defined in section 409 of the Indian Penal Code was complete, and the Sessions Judge on appeal had accepted the same conclusion as an alternative view. The correctness of that view, however, depended on whether the Civil Nazir, who had drawn the money from the Treasury under the authority of the Subordinate Judge and retained it in his own custody, could be said to have been entrusted with the money. The Court noted that the precise legal position regarding the nature of the Civil Nazir’s custody in such circumstances had not been clarified. No rule had been produced that authorised or permitted the Civil Nazir to retain the money in his personal custody pending disbursement. If such a rule existed, that custody could amount to an entrustment. The only rule placed before the Court indicated that the Subordinate Judge bore full responsibility for both the withdrawal and the disbursement, and therefore he should be regarded as the primary person entrusted with the funds. The Subordinate Judge, in his own testimony, asserted that it was the duty of the Civil Nazir to draw the pay of subordinate employees and to keep that amount, together with any other Government money, in the safe provided to him and kept in the Nazir Khana. Likewise, witness PW-10, who was also a Civil Nazir, stated that it was incumbent upon the Civil Nazir to keep all undisbursed Government money with him in the safe fixed in the Nazir’s room. When questioned under section 342 of the Criminal Procedure Code in questions 1, 2 and 3, the appellant distinguished between sums drawn for salary and those drawn on contingent bills, claiming that his duty was limited to retaining only the contingent amounts, thereby implying that salary-related sums were not part of his regular duties. In the absence of a clear rule defining this responsibility and the character of the Nazir’s custody in such situations, the Court concluded that it could not deem the Civil Nazir to have been entrusted with the money.

In the present case the Court observed that the evidence did not establish that the appellant had been entrusted with the custody of the money in question. Nevertheless, the Court noted that the appellant had transferred the money to the Subordinate Judge while being aware that the funds would be used for a purpose different from that for which they were lawfully intended. Accordingly, the Court held that such conduct could be characterised as abetment of criminal breach of trust committed by the Subordinate Judge. The Court further explained that, where the circumstances were appropriate, a conviction for abetment of an offence under Section 409 of the Indian Penal Code could be substituted for the original conviction. However, the Court pointed out that in the present matter, substituting the appellant’s conviction under Section 409 with a conviction for abetment would necessarily entail a finding of guilt against the Subordinate Judge, identified as Shri Ghambir, who was not a party before this Court. The Court considered that imposing such a finding would be unjust, and therefore it declined to alter the conviction on the basis of abetment in the appeal filed under special leave. Consequently, the Court allowed Criminal Appeals numbered 46 and 47 of 1953 and set aside the appellant’s convictions for both offences with which he had been charged.