minal Appeal No 159 of 1957
Appeal by special leave from the judgment and order dated February 14 1956 of the Bombay High Court in Criminal Appeal No 1232 of 1955 arising out of the judgment and order dated October 3 1955 of the Additional Sessions Judge for Greater Bombay in Case No 38 V Sessions 1955
Purshottam Tricumdas B K B Naidu and I N Shroff for appellant No 1
Appellant No 2 did not appear
H J Umrigar R H Dhebar and T M Sen for the respondent
March 16
The Judgment of the Court was delivered by SHAH J
At a trial held with the aid of a common jury in Case No 38 of the Vth Session 1955 before the 321 Additional Sessions Judge City Court Greater Bombay the two appellants were convicted of offences under section 409 read with section 34 of the Indian Penal Code
The Additional Sessions Judge sentenced the first appellant to suffer rigorous imprisonment for five years and the second appellant to suffer rigorous imprisonment for four years
In appeal the High Court of Bombay reviewed the evidence because in the view of the Court the verdict of the jury was vitiated on account of a misdirection on a matter of substantial importance but held that the conviction of the two appellants for the offence under section 409 read with section 34 of the Indian Penal Code was on the evidence not liable to be set aside
The High Court accordingly confirmed the conviction of the two appellants but reduced the sentence passed upon the first appellant to rigorous imprisonment for three years and the sentence against the second appellant to rigorous imprisonment for one year
Against the order of conviction and sentence the appellants have appealed to this court with special leave
The facts which gave rise to the charge against the two appellants are briefly these On June 15 1948 the Textile Commissioner invited tenders for dyeing Pugree Cloth
The Parikh Dyeing and Printing Mills Ltd Bombay hereinafter to be referred to as the company of which the first appellant was the Managing Director and the second appellant was a Director and technical expert submitted a tender which was accepted on July 27 1948 subject to certain general and special conditions
Pursuant to the contract 251059 34 yards of cloth were supplied to the company for dyeing
The company failed to dye the cloth within the stipulated period and there was correspondence in that behalf between the company and the Textile Commissioner
Approximately 111000
yards out of the cloth were dyed and delivered to the Textile Commissioner
On March 25 1950 the company requested the Textile Commissioner to cancel the contract and by his letter dated April 3 1950 the Textile Commissioner complied with the request and cancelled the contract in respect of 96128 yards
On November 20 1950 the contract was cancelled by the 322 Textile Commissioner in respect of the balance of cloth and the company was called upon to give an account without any further delay of the balance undelivered and it was informed that it would be held responsible for  material spoiled or not accounted for 
On December 4 1950 the company sent a statement of account setting out the quantity of cloth actually delivered for dyeing the quantity of cloth returned duly dyed and the balance of cloth viz 132160 yards remaining to be delivered
Against the cloth admitted by the company remaining to be delivered it claimed a wastage allowance of 2412 yards and admitted liability to deliver 129748 yards lying with it on Government account
It appears that about this time the company was in financial difficulties
In December 1950 the first appellant left Bombay to take up the management of a factory in Ahmedabad and the affairs of the company were managed by one R K Patel
In June 1952 an application for adjudicating the two appellants insolvents was filed in the Insolvency Court at Ahmedabad
An insolvency notice was also taken out against the two appellants at the instance of another creditor in the High Court at Bombay
Proceedings for winding up the company were commenced in the High Court at Bombay
In the meantime the mortgagee of the machinery and factory of the company had entered into possession under a covenant reserved in that behalf of the premises of the factory of the company
The Textile Commissioner made attempts to recover the cloth remaining undelivered by the company
A letter was posted by the Textile Commissioner on April 16 1952 calling upon the company to deliver 51756 yards of cloth lying with it in bleached condition to the Chief Ordnance Officer Ordnance Depot Sewri but the letter was returned undelivered
It was ultimately served with the help of the police on the second appellant in October 1952
Thereafter on November 7 1952 another letter was addressed to the company and the same was served on the second appellant on November 25 1952
By this letter the company was reminded that 135726 34 yards of cloth 323 were lying with it on account of the government and the same had to be accounted for and that the instructions to deliver 51756 yards to the Chief Ordnance Officer Ordnance Depot Sewri had not been attended to
The Textile Commissioner called upon the company to send its representatives to  clarify the position  and to account for the material
After receiving this letter the second appellant attended at the office of the  Textile Commissioner and on November 27 1952 wrote a letter stating that  the main factors involved in not delivering the goods in finished state was that the material was very old  was  dhobibleached in different lots was  bleached under different conditions and therefore unsuitable for vat colour dyeing in heavy shades that it varied in length weight and finish and had  lost affinity for vat colour dyeing
It was also stated that the company had in dyeing the basic material suffered  huge losses estimated at Rs 40000
It was then stated  We are therefore however prepared to co operate with the Government and are willing to make good the government s bare cost
Please let us know the detail and the actual amount to be deposited so that we may do so at an early date
We shall thank you if we are given an appointment to discuss the matter as regards the final amount with respect to the balance quantity of the basic material On December 29 1952 the premises of the company and the place of residence of the appellants were raided but no trace of the cloth was found
A complaint was then filed with the police charging the two appellants with criminal breach of trust
in respect of 1324041 yards of cloth belonging to the Government
There is no dispute that approximately 130000 yards out of the cloth entrusted to the company by the Textile Commissioner for dyeing has not been returned
By its letter dated December 4 1950 the company admitted liability to deliver 129748 yards of cloth but this cloth has not been returned to the Textile Commissioner in spite of repeated demands
That the appellants as directors of the company had dominion over that cloth was not questioned in the trial court
The plea that there were other Directors 324 of the company besides the appellants who had dominion over the cloth has been negatived by the High Court and in our judgment rightly
Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking but to establish a charge of criminal breach of trust the prosecution is 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 the 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 the property entrusted if proved may in the light of other circumstances justifiably lead to an inference of dishonest misappropriation or conversion
Conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him or over which he has dominion even when a duty to account is imposed upon him but where he is unable to account or renders an explanation for his failure to account which is untrue an inference of misappropriation with dishonest intent may readily be made
In this case on a search of the factory on December 29 1952 the cloth remaining to be delivered by the company was not found
At the trial the appellants sought to explain the disappearance of the cloth from the factory premises where it was stored on the plea that it was old and was eaten up by white ants and moths and had been thrown away as rubbish
This plea of the appellants was not accepted by the High Court and we think rightly
No information was given at any time to the Textile Commissioner after December 4 1950 that the cloth had been eaten up by white ants and moths and was therefore thrown away or otherwise destroyed
Nor was any evidence led in support of the plea by the appellants
In this court counsel for the first appellant contended that failure to return the cloth may give rise to a civil liability to make good the loss occasioned 325 thereby but in the circumstances of the case the first appellant cannot be found guilty of the offence of criminal breach of trust
Counsel submitted that the first appellant had left Bombay in 1950 and had settled down in Ahmedabad and was attending to a factory in that town that thereafter the first appellant was involved in insolvency proceedings and was unable to attend to the affairs of the company in Bombay and if on account of the pre occupation of the first appellant at Ahmedabad he was unable to visit Bombay and the goods were lost no criminal misappropriation can be attributed to him
But the case pleaded by the appellant negatives this submission
The first appellant in his statement before the trial court admitted that he often went to Bombay even after he had migrated to Ahmedabad and that he visited the mill premises and got the same opened by the Gurkha watchman and he found that the heap of cloth lying in the mill was getting smaller every time he visited the mill and on inquiry he was told by the watchman that every day one basketful of sweepings was thrown away
He also stated that he was shown several places in the compound of the factory where pits had been filled up with these sweepings and that he found a small heap lying by the side of the  Tulsipipe gutter and also in the warehouses in the mill premises
It is clear from this statement and other evidence on the record that even after he migrated to Ahmedabad the first appellant was frequently visiting the factory at Bombay
The evidence also discloses that meetings of Directors were held from time to time but the minutes of the Directors  meetings have not been produced
The books of account of the company evidencing disbursements to the Directors of remuneration for attending the meetings and the expenses for the alleged collection and throwing away of the sweepings have not been produced
It is admitted by the first appellant that the letter dated November 27 1952 was written by the second appellant under his instructions
In his statement at the trial the first appellant stated that he was informed of the letter dated November 26 1952 from the Textile Commissioner and that he 42 326 could not attend the office of that officer because he was busy attending to the insolvency proceedings and that he deputed the second appellant to attend the office and to explain and discuss the position
Be then stated We had informed the Commissioner that the company was prepared to pay for the cloth remaining after deducting the amount claimed as damages
The letter dated November 27 1952 was evidently written under the direction of the first appellant and by that letter liability to pay for the cloth after certain adjustments for losses alleged to be suffered by the company in carrying out the contract was admitted
By the letter dated December 4 1950 liability to deliver the cloth was admitted and by the letter dated November 27 1952 liability to pay compensation for the loss occasioned to the Government was affirmed
The appellants who were liable to account for the cloth over which they had dominion have failed to do so and they have rendered a false explanation for their failure to account
The High Court was of the opinion that this false defence viewed in the light of failure to produce the books of account the stock register and the complete absence of reference in the correspondence with the Textile Commissioner about the cause of disappearance established misappropriation with criminal intent
Counsel for the first appellant contended that probably the goods passed into the possession of the mortgagees of the assets of the company
but on this part of the submission no evidence was led in the trial court
Counsel for the first appellant relying upon the observations in Shreekantiah Ramayya Munipalli vs The State of Bombay 1 also contended that in any event a charge under section 409 read with section 34 of the Indian Penal Code cannot be established against the first appellant unless it is shown that at the time of misappropriation of the goods the first appellant was physically present 
But the essence of liability under s34 is to be found in the existence of a common intention animating the offenders leading to the doing of a criminal act in furtherance of the 1  327 common intention and presence of the offender sought to be rendered liable under section 34 is not on the words of the statute one of the conditions of its applicability
As explained by Lord Sumner in Barendra Kumar Ghose vs The King Emperor  the leading feature of section 34 of the Indian Penal Code is participation  in action
To establish joint responsibility for an offence it must of course be established that a criminal act was done by several persons the participation must be in doing the act not merely in its planning
A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of section 34
But this participation need not in all cases be by physical presence
In offences involving physical violence normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places
In Shree Kantiah s case supra misappropriation was committed by removing goods from a Government depot and on the occasion of the removal of the goods the first accused was not present
It was therefore doubtful whether he had participated in the commission of the offence and this court in those circumstances held that participation by the first accused was not established
The observations in Shree Kantiah s case supra in so far as they deal with section 34 of the Indian Penal Code must in our judgment be read in the light of the facts established and are not intended to lay down a principle of universal application
The High Court has found that the two appellants were liable to account for the cloth over which they had dominion and
they failed to account for the same and therefore each had committed the offence of criminal breach of trust
The High Court observed  In such a case if accused Nos 1 and 2 Appellants 1  2 alone were concerned with the receipt of the goods if they were dealing with the goods all the time if they were receiving communications from the Textile Commissioner s office and sending replies to 1 1924 LR 52 IA 40 52
328 them and if the part played by each of them is apparent from the manner in which they are shown to have dealt with this contract then it is a case of two persons entrusted with the goods and a breach of trust obviously being committed by both of them 
It was submitted that the High Court erred in finding the appellants guilty of offences under section 409 of the Indian Penal Code when the charge framed against them was one under section 409 read with section 34 of the Indian Penal Code
A charge framed against the accused person referring to section 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be invoked
Section 34 does not create an offence it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders
Conviction of an accused person recorded relying upon the principle of joint liability is therefore for the offence committed in furtherance of the common intention and if the reasons for conviction establish that the accused was convicted for an offence committed in furtherance of the common intention of himself and others a reference in the order recording conviction to section 34 of the Indian Penal Code may appear to be asurplusage
The order of the High Court recording the conviction of the appellants for the offence under section 409 of the Indian Penal Code is therefore not illegal
It was submitted for the first appellant that the sentence passed against him was unduly severe and that in any event no distinction should have been made between him and the second appellant in the matter of sentence
It is evident on the findings accepted by us that property of considerable value has been misappropriated by the first appellant
He was the Managing Director of the company an primarily he had dominion over the property entrusted to the company
The second appellant was though a Director essentially a technician
Having regard to these circumstances if the High Court has made a distinction between the two appellants we ought not to interfere with the sentence which by itself cannot be said to be excessive
The appeal fails and is dismissed
Appeal dismissed


Summary:
A Criminal case was instituted in the court of a Magistrate at Calcutta against the appellant under section 332 of the Indian Penal Code for voluntarily causing hurt to the Bailiff of Calcutta Corporation and another
After hearing both sides the Magistrate was of the opinion that the charge under section 332 could not be sustained but as there was evidence to establish a Prima facie case under section 323 of the Indian Penal Code he charged the appellant under that section
The appellant pleaded not guilty and 1  32 246 claimed to be tried and submitted that in view of the provisions Of section 251A2 of the Criminal Procedure Code he should have been acquitted and the trial for the offence under section 323 Indian Penal Code could not be proceeded with
The Magistrate rejected the contention and convicted the appellant
On the question whether a magistrate after making an order of discharge under section 251A2 of the Criminal Procedure Code in respect of a charge of an offence triable as a warrant case can still proceed to try the accused for another offence which would be made out from the police report Held that an order of discharge made by the Magistrate in exercise of the powers under sub section
2 Of section 251A does not mean the discharge of the accused in respect of all the offences which the facts mentioned in the police report would make out
The order of discharge being only in respect of the offences triable under Chapter XXI does not affect in any way the position that charges of offences triable under Chapter XX also are contained in the police report
In the instant case even after the order of discharge was made in respect of the offence under section 332 Of the Indian Penal Code the minor offence under section 323 of which the Magistrate bad also taken cognizance remained for trial as there was no indication to the contrary
That being an offence triable under Chapter XX of the Code of Criminal procedure the Magistrate rightly followed the procedure under Chapter XX
When a Magistrate takes cognizance under section 1901b of the Criminal Procedure Code he takes cognizance of all offences constituted by the facts reported by the Police Officer and not of some only out of those offences