JUDGMENT

Nanavutty, J - This is an application for revision of an appellate order of the learned Sessions Judge of Lucknow upholding the conviction and sentence passed upon the applicant Chandrika Prasad for an offence under Section 409 I.P.C. The charge framed against the applicant is to the effect that on 31st March 1927 while he was Head Clerk of the Government Technical School at Lucknow and as such entrusted with or having dominion over a sum of Rs. 183-11-0 on account of the price of books purchased for the school from Messrs. Thacker Spink & Co. of Calcutta he committed criminal breach of trust in respect of the said sum. There is absolutely no evidence on the record to prove that the applicant Chandrika Prasad was ever entrusted with this sum of Rs. 183-11-0 or ever had dominion or control over that amount. Even the learned City Magistrate concedes that fact when he writes in his judgment that:

when, there is no cash payment but only book transaction there can be no literal entrusting of money.

2. He, however, held that the accused had undoubtedly dominion over the money of the cheque Ex. 19. Ex. 19 is a cheque for Rs. 4,393-10-6 drawn by the Pay and Accounts Officer of Allahabad in favour of the Principal of the Government Technical School at Lucknow. It was in payments of three bills, one for Rs. 342-11-0 another for for Rs. 2,214-2-0 and the third for Rs. 1,836-13-6. The Principal of the Government Technical School (Mr. Lyons) sent this cheque Ex. 19 duly endorsed to the Imperial Bank of India, Lucknow Branch, along with Rs. 86-0-2 in cash and asked the Bank that in lieu of the cheque Ex. 19 and the money remitted to the Bank nine drafts or remittance transfer receipts payable at -sight in favour of the parties noted below should be sent to him by the Bank. The persons in whose favour these drafts we're drawn are as under:

      TABLE

3. It is admitted that Messrs. Thacker Spink & Co. of Calcutta received the cheque for Rs. 155-8-0 and realized the amount of that cheque and that all the eight other persons or firms in whose favour drafts were drawn received their money. It is thus clear that out of the sum of Rs. 4,479-10-8 which included the amount of the cheque Ex. 19 from the Pay and Accounts Officer of Allahabad, not a pie was received by the applicant Chandika Prasad but that the whole amount was paid off to the various firms and persons to whom the Government Technical School of Lucknow owed money.

4. It is argued on behalf of the Crown that while the applicant is not proved of having actually embezzled a single pie, he is nevertheless guilty of constructive criminal breach of trust in that he utilised the cheque of Rs. 155-8-0 to pay the money due to Messrs. Thacker Spink & Co. on their original bill for Rs. 183-11-0.whereas this cheque of Rs. 155-8-0 was meant for payment to that firm in respect of another bill for which the Government was liable. There is no clear and reliable evidence on this point. In the absence of any instructions to the contrary, Messrs. Thacker Spink & Co. would naturally credit the amount of the cheque for Rs. 155-8-0 towards the payment of their oldest bill outstanding in order to save limitation. The mere fact that Messrs. Thacker Spink & Co's bill for Rs. 183-11-0 was paid off in part by the cheque of Rs. 155-8-0 which was drawn in respect of another bill for that amount due to that firm does not go to prove that the applicant Chandrika Prasad embezzled the amount of the original bill for Rs. 183-11-0 (subsequently reduced to Rs. 172-6-0) due to that firm. The presumption of innocence in favour of the applicant must hold good until replaced by cogent and convincing evidence of his guilt. Unfortunately for the prosecution it has not been possible for the Crown to examine Mr. Lyons as a witness in this case to elucidate the crucial facts of the transaction in respect of which criminal breach of trust is said to have been committed. The Financial Hand Book, Vol. 5, p. 75, Article 169