1. SHAHABLJDDIN, J.-These appeals relate to two convictions under section 409, P. P. C. Imposed by the High Court of Dacca on appellant Sonaullah in two separate cases in respect of sums of money which had been collected by the Tax Collectors of the Union Board of Rohita of which the appellant was, at the time of the collection, the President. As the evidence on which the convictions are based is similar though not the same it is convenient to deal with these two appeals in a common judgment. In both the cases the present appellant was convicted by the Special Judge only of the offence of abetment of criminal breach of trust, the principal offenders according to him being the Tax Collectors, whom the High Court acquitted.
2. Facts for the prosecution in these cases are as follows. In Criminal Appeal No. 21-D of 1959, the allegation was that on 20th and 21st March 1954, Jasim Biswas, the Tax Collector of the said Union Board realised Rs. 64-12-0 as tax, but misappropriated the same without depositing the amount in the Union Board Fund and that the present appellant abetted the said offence by suppressing Book No. 10 containing 100 tax receipts and not making it over to his successor-in-office P. W. 1 and by giving a false explanation that the above book had been lost. The Tax Collector was charged under section 409 and the present appellant under section 409/ 109, P. P. C.
3. The defence of the tax collector was that he paid the amount to the present appellant, whereas the latter's version was that he was illiterate, that he never gave the receipt book to the Tax Collector and that the entire work was done by the clerk and that he was innocent. The evidence disclosed that the tax was collected by the Tax Collector and the Special Judge convicted him as well as the appellant.
4. Special leave to appeal was granted in these cases as the existence of any clear and disinterested evidence that the collectors made over the amounts to the appellant could not be discovered from the judgments of the High Court ; and on looking into the evidence we find that the learned Judges have not considered fully the evidence of P. W. 3 in the case from which Criminal Appeal No. 21-D of 1959 arises and that of P. W. 5 in the case to which Criminal Appeal No. 22-D of 1959 relates. P. W. 3 in the first case is the Dafadar of the Union. In examination-in --chief he stated that he paid the tax to the Tax Collector Jasim Biswa s. He did not say there that he saw the amount paid to the Tax Collector being handed over to the present appellant. But when cross-examined for Jasim he stated as follows :- "For my salary of 4th quarter of 1360 B. S. The accused Sonaullah Dhali sent me to Jasim Biswas (accused) with a slip. Jasim gave my salary from collection of book No:
10. Accused Jasim tendered the balance of the money of book No. 10 in my' presence to the President Sonaullah Dhali.
5. Many other persons saw it."
6. What amount was actually tendered was not stated by the witness. Nor was any other witness said to be present in that connection examined. On the other hand, this witness when cross-examined for the present appellant said :- "I was present when money was returned in Board Office situated in house of Sonaullah Dhali. I went there to give attendance and was, inside the office room. I can't say definitely whether Jasim handed over the money to the President Dhali he went there with money."
7. The witness was recalled on the 12th July when he repeated that he was present when the receipt book was returned with the money. In the cross-examination, however, he stated that he did not say this on the first day of his examination i.e., 7-7-58 as he was not asked about it. He further stated :- "I did not state the above thing to the I. O. As I was not asked about these."
8. The learned Judges of the High Court have also referred to the evidence of P. W. 1 that the present appellant did not hand over the concerned receipt book to that witness, but had said that it was lost. The evidence of P. W. I in this connection was that he received 9 books containing counterfoils whereas there were ten books in the account and that the appellant said that the remaining book had been lost. Cross-examined for the Tax Collector he said that the receipt book and money were tendered to him by the present appellant in the presence of 4 or 5 village headmen after the case started, but that he did not accept the same. It is not known what the exact amount so tendered was. Nor has the appellant when he was examined under section 342, Cr. P. C. Been questioned about this allegation. With regard to the non-production of the receipt book the explanation of the appellant was that he did not know how to read and write, but learnt only to sign his name and that it was the clerk who used to do the office work and the office record was in his custody.
9. He also said that P. W. 1, delayed taking over the charge and that at the time the charge was handed over the clerk wrote the body of the charge-form and that the appellant did not know the existence of the 10th book or the realisation of the amount. Had he been asked with regard to his having tendered the amount and the receipt book, after the case was started he might have given a plausible explanation. However, that the appellant is illiterate has not been denied by his successor P. W.
1. He merely said that he could not say if the appellant was also literate like him (the witness), but the witness himself was not quite literate. He says that he could somehow write his name. He admitted in the cross-examination that there was faction among the members.
10. "Abbas called me away for collection. Before that I did not meet the President Sonaullah Dhali. The clerk was not in U. B. Office then. I cannot say in what condition he was. After collection Abbas returned to his house and myself to mine. I can't say what happened subsequently."
11. And yet the learned Judges observed that in view of the clear admission of P. W. 5 they could not ignore the plea of the Tax Collector that he had paid the disputed amount to the President, the appellant. Here again it was contended before the learned , Judges that according to rule 6 collecting members or officers should enter the amount in the daily collection book and the register and counterfoils should be taken to the President and his receipt taken in the book. But the tax collector in that case had not been able to produce any hook showing the entry and it was therefore argued for the State that the story of payment to the present appellant by the Tax Collector should not be accepted, but the learned Judges rejected this contention on the strength of the evidence of P. W. 5 which, as indicated above, can hardly be regarded as proving beyond reasonable doubt the recent of the amount by the appellant. In this case also the learned Judges have referred to the evidence of P. W. 1 that when the appellant --wanted to hand over the collection book and some money it was not accepted as the case had started.
12. P. W. 1 made this statement not in examination-in-chief, but in cross-examination by the Tax Collector. He said that the present appellant brought the clerk who was seriously ill in a cart and that he gave the witness collection book and some money, but that he, the witness, said that he would accept them only after the case was over. The clerk died soon after the witness took charge.
13. He did not state as to what the amount tendered was, not was the allegation put to the appellant in his examina--tion under section 342, Cr. P. C. The version of the appellant was that he was illiterate and the clerk did all the work relating to reading and writing and all the papers of the Board were in his custody.
14. It was suggested in both the cases to the successor of the present appellant that he was giving evidence on account of party faction. This suggestion was no doubt denied, but it receives support from the fact that in spite of the illness of the clerk of the Union Board this witness rushed to take action against the present appellant. However, even if he is believed, it does not prove beyond E reasonable doubt that the money was received by the appellant from the respective tax-payers.
15. Had the Courts below considered those aspects of the evidence of P. W. 3 in the first case and that of P. W. 5 in the other case which have been discussed above, they would not have reached the - conclusion they did. In our opinion in neither case has the prosecution version been proved beyond reasonable doubt.
16. We, therefore, set aside the convictions and sentences and acquit the appellant.