A Receiver in Insolvency is a public servant and can be held criminally liable for criminal breach of trust under Section 409, Indian Penal Code, even if there is a provision for civil liability under Section 56 of the Provincial Insolvency Act.

JUDGMENT

BARMAN, J. : This is an appeal from an order of acquittal passed by the learned Magistrate, 1st Class Balasore, whereby he acquitted the accused respondent of a charge of alleged criminal breach of trust, as a public servant, under section 409, Indian Penal Code.

2. The relevant facts, shortly stated, are these : In the year 1948 when Balasore was under Cuttack Judgeship, the then District Judge by his order dated April 17, 1948 appointed the Nazir, Munsif's Court, Bhadrak, as Receiver in Insolvency case No. 6-B of 1946; since then whoever was Nazir of the said Court was Receiver; the accused respondent, who was a stenographer of the Additional District Judge, Balasore was appointed Nazir of Munsif's Court, Bhadrak and in the said capacity was the Nazir till February 16, 1957, when he handed over charge of his office as Nazir to his successor one Brajasundar Pati, consequent upon his transfer to Balasore. In course of his term of office as Nazir, the accused respondent sold certain properties of the insolvent as Receiver and thereby realised a sum of Rs. 1500/-; the Receiver did not credit the amount in the General Cash Book; in fact, the Receiver was approached for payment of the said sum of Rs. 1500/- but he evaded payment on some pretext or other. The prosecution case is that on February 16, 1957, when the Receiver made over charge to his successor as aforesaid the accused respondent did not make over the said amount. In 1958, a demand was made on the accused respondent for payment of the money and he was asked to deposit the amount; thereupon, the accused respondent wanted time for payment and he could deposit a sum of Rs. 150/- only within the time allowed but failed to deposit the balance. On these facts the then District Judge, Mayurbhanj, Sri R. C. Misra wrote to the Superintendent of Police, Balasore, a letter, requesting him that necessary steps may be taken against the accused respondent for defalcation, made by the accused respondent, on the facts and circumstances stated in his letter. Thereafter, the Nazir was, in due course, sent up for trial for criminal breach of trust, as a public servant under Sec. 409 Indian Penal Code and the learned Magistrate acquitted him of the charge as aforesaid. Hence this Government Appeal against the said order of acquittal.

3. The points,- for consideration in this appeal,- are whether there was entrustment of the money to the accused respondent as alleged; and if so, whether there was criminal breach of trust by the accused respondent in respect of the money so entrusted. The defence,- taken at the trial,- was that there was no entrustment of the money, and the accused respondent relied on section 56 of the Provincial Insolvency Act which provides for appointment of Receiver in insolvency, His point, in substance, is that only civil liability is provided for in case of default on the part of the Receiver, in that sub-section (4) of Section 56 of the said Act provides that where a receiver appointed under this Section fails to submit his accounts at such periods and in such form as the Court directs, or fails to pay the balance due from him thereon as the Court directs, or occasions loss to the property by his wilful default or gross negligence, the Court may direct his property to be attached and sold, and may apply the proceeds to make good any balance found to be due from him or any loss so occasioned by him. There is, however, no dispute as to the legal position that the same set of facts may give rise both to a Civil liability and a criminal prosecution : but if there is no mens rea, or if the other essential ingredients of an offence are lacking, the same facts may not sustain a criminal prosecution, though a civil action may lie. We have, therefore, to examine whether or not there was mens rea in this case or whether necessary elements of a criminal offence have been made out.

4. The position of a Receiver in insolvency is that of a trustee; he does not become absolut