JUDGMENT
Abdur Rahim, J.
1. The accused K.K. Bose who was Manager of the Calcutta Provident Institution from the 9th February 1903 till March 1903, has been acquitted by the appellate Court of the various charges of cheating, criminal breach of trust, and criminal misappropriation in respect of Rs. 39 paid by Prosecution Witness No. 1 on account of a diploma-holder Pappamma of which he was found guilty by the Joint Magistrate. The Government has appealed against his acquittal; and Dr. Swaminathan, why appeared in support of the appeal, has contended that though the petitioner might have joined the Institution in good faith, he must, during the years that he was manager, have become aware that Mitter and Sen were misappropriating the moneys which should have been available for meeting the death claims and that since fully knowing that the funds were held in trust for that purpose. he wilfully handed over the moneys to Sen and Mitter contrary to that trust he made himself liable for those offences or at least for their abetment. It has been found by the appellate Court upon the evidence in this case and its finding has not been challenged before us that the accused did not appropriate any money to himself. That being so the only question is how far he can be held responsible for permitting the proprietor of the concern or his agent Sen to receive moneys which should have been in deposit in the Bank as security for meeting the death claims. In this connection the security bond, Exhibit DD, executed by Bose in favour of Mitter at the time of his appointment has a most important bearing. It is a remarkable document as observed by the Joint. Magistrate and it shows on the face of it that by that document the petitioner placed himself entirely at the mercy of Mitter. By its terms he is tied down to his post for 2 1/2 years but his proprietor is free to dispense with his services at his will. He undertakes to make himself not civilly but criminally liable for result of anything done not only by himself but by the previous Manager also and to meet the expenses of all litigation in which the Institution may be involved in consequence of such acts. While he holds himself solely responsible to be the proprietor for the management of the entire concern, the safe custody and proper application of the funds, the proprietor and his agent are at liberty to take charge of money, papers etc., relating to the Institution. Exhibit DD constituted a contract between Bose and Mitter and if the latter and his agent Sen obtained moneys from Bose which according to the Prospectus and the Rules should have been kept as security for the benefit of the policy-holders and misappropriated them, Bose can hardly be held liable. There was no contract between him and the diploma-holder and he cannot be said to have held two-thirds of the subscription in trust for their nominees.
2. We are also inclined to agree with the lower appellate Court that the manager was more a dupe of Mitter and Sen than a swindler and we think that the undoubted facts of the case admit of the possibility that Bose might have innocently thought that the moneys received by them would be applied for the legitimate objects of the Institution. At any rate under his contract he could not prevent Mitter and Sen from taking the money. We therefore, hold that the acquittal of Kamal Krishna Bose is right and the Government’s appeal must be dismissed.
Munro, J.
3. I concur.
