Judgment

BEG, J. :- The respondent, Birendra Chandra chakravarty, was tried by the Additional Chief Presidency Magistrate, Calcutta, and convicted and sentenced to undergo one year s rigorous imprisonment and to pay a fine of Rs. 2,000/- and, in default of payment of fine, to a further rigorous imprisonment for six months on the following charge held to have been established against him;

"That you the said Birendra Chandra Chakraborty, alias Balak Brahmachari on or about the 29th day of February, 1958, at Calcutta, as trustee and agent of one Shrimati Saila Bala Dasi, from or on 26-11-1949 committed criminal breach of trust as such trustee and agent in respect of 3 Bighas of land out of about 5 Bighas of land situated in Village Bansdroni in the district of 24 Parganas by selling the said three bighas of land to (1) Birendra Lal Sarkar, (2) Hirendra Nath Bose, and (3) Mahindra Lal Chakraborty, trustees of the Ashoke Trust, and misappropriated the profits thereof, and thereby you the said Birendra Chandra Chakraborty, alias Balak Brahmachari, committed an offence punishable under Section 409 of the Indian Penal Code and within my cognizance."

On an appeal by the convict respondent the High Court of Calcutta by an exceptionally long judgment of more than a 100 pages, in the course of which a number of registered documents, their correct interpretation and their effects were discussed, held that the dispute between the parties was essentially of a civil nature. It did not decide the question whether a criminal breach of trust could be committed in respect of immovable property entrusted to an agent for management on a certain understanding. The gravamen of the charge against the respondent was that he had, in violation of this understanding, set up his own title to one of the several properties, which should have been relinquished or transferred to the complainant Smt. Saila Bala Devi just as other properties, mentioned in the schedule to a registered deed of derelinquishment (Ex. 8) dated 24-2-62, were actually transferred or relinquished in favour of Smt. Saila Bala Devi after acknowledging her right and title to them, although their ostensible owner, like that of the property which was said to have been dishonestly retained and not relinquished, was the respondent himself. In other words, the real dispute was whether an ostensible owner of some immovable property was really its owner or merely a benamidar holding it on behalf of the real owner.

2. The rather pathetic story of Smt. Saila Bala Devi was: She is the widow of Aswini Kumar Das, a retired Chief Engineer of Dacca Municipality, who died sometime in 1934, leaving her with seven daughters and four sons. The Engineer, whose monthly salary was Rs. 1,000/-, had left a two-storeyed house at Decca, a Dispensary at Nawabpur, and 200 bighas of land in Gangarampur, in addition to a deposit of Rs. 10,000/- a life insurance policy of Rs. 22,000/-, and provident fund of Rs. 25,000/- Smt. Saila Bala Devi had also saved about Rs. 25,000/- and had gold ornaments. She and her family, however, came under the evil spell of the respondent, Birendra Chandra Chakravarty, alias. Balak Brahmachari, sometime about 1944. She was so impressed by the young Brahmachari, aged about 23 years, that she looked upon him as an avatar or incarnation of God. She and her family as well as the Brahmachari (also called "Gurudev" by them) shifted to Calcutta after the partition of the country. Under the advice of the respondent, Smt. Saila Bala Devi transferred her house in East Bengal and paid Rs. 37,000/- to one Abdul Rahman, introduced to her by the respondent, but the properties to be given by Abdul Rahman in return for this consideration were actually transferred to the respondent as a benamidar (the reason for this is not clear). When the respondent executed the deed of relinquishment (Ex. 8) dated 24-2-62, she remained under the impression that her right to all the properties of which the respondent was be