PATEL UKA NARAN Vs. KALYAN KARSAN

JUDGEMENT

(1.) The appellant, Patel Uka Naran, was the President of the Sultanpur Juth Vividh Karyakari Sahkari Mandli (hereinafter called the Mandli) on January 22, 1966, having held that office for nearly 7 or 8 Years till August 31, 1966 when he was succeeded by Arjan Limba Kalyan Karamshi (complainant) an illiterate agriculturist was a shareholder of the Mandli. He had taken a loan of Rs. 800/- from the Mandli and in January, 1966, Rs. 1,215.73 (inclusive of interest upto January 15, 1966 and expenses for notice, etc.) were due from him on account of this loan. On January 10, 1966 he was given a notice by the Mandli to pay this amount within eight days from its receipt failing which it was threatened that the amount would be recovered by proceedings for recovery of revenues. It was pointed out that the Mandli had obtained a certificate to recover the amount according to revenue proceedings. To avoid unnecessary additional expense the complainant was requested to make arrangements for paying the amount. On January 22, 1966, Bhagvanji Vithaldas was the Secretory of the Mandli. These facts are not disputed. According to the prosecution case on January 22, 1966 the complainant went to the Mandli Office and paid to the appellant Rs. 1,220/-(12 currency notes of Rs. 100/- each and two currency notes of Rs. 10/-each) who gave him a receipt for the amount scribed by a clerk and signed by the appellant with the seal of the Mandli thereon:Ex P/13. The Secretary was not present in the office on that day and that is why a pucca receipt for this amount was not issued. The appellant told the complainant that after adjusting the account the amount received in excess would be returned to him.The complainant, feeling satisfied went home with the kutcha receipt. On October 29. 1966 after the appellant had ceased to be the President of the Mandli and Arjan Limba had taken over, a notice Ex P/15 described as the, last notice was sent by the Mandli to the complainant informing him that Rs. 415 73 had become due as interest on the principal amount of Rs. 800/- upto January 15, 1966 and requiring him to pay the principal and interest accrued upto the date of payment and also the expenses of the notice. This notice further pointed out that earlier a notice dated January 10, 1966 had been sent to the complainant on which no action was taken by him and as the debt had become barred by time, a certificate had already been received by the Mandli for recovering the amount "by attachment according to land revenue proceedings". It was emphasised that if the amount was not paid the Mandli would be obliged to take attachment proceedings. On the complainant informing the Mandli of the payment having already been made by him and enclosing a copy of the receipt (Ex. P/13) , the Secretary of the Mandli wrote back on December 5, 1966 intimating to the complainant that the amount of the receipt had not been credited in the account books on the date of the receipt or thereafter. He was informed that he might take such further action in the matter as he liked. It may be pointed out here that Bhagvanji Vithaldas, who was the Secretary on January 22, 1966 had since died and he was succeeded by Bhikhalal Shamjibhai (P. W. 4) sometime in March, 1967 as deposed by him. On December 20, 1966 the complainant received a letter from the Registrar of Co-operative Societies, Rajkot asking him to institute a complaint in respect of the payment of Rs. 1,220/- made by him to Uka Naran, the ex-President of the Mandli promising him the necessary assistance in the matter. Three days later the complaint, out of which the present appeal arises, was instituted and after trial the Judicial Magistrate, First Class, Gondal, convicted the appellant on September 22 1967 of an offence under Section 409 I. P. C. sentencing him to simple imprisonment for one year and fine of Rs. 2,000/-, with further simple imprisonment for two months in case of default in payment of fine. Out of the fine, if realised, Rs. 1,220/- were directed to be paid to the complainant. That Court also convicted him of an offence under Section 420, I. P. C. imposing a sentence of simple imprisonment for two months.

(2.) On appeal the Sessions Judge, Rajkot set aside the appellant's conviction under Section 420 I. P. C. and converted his conviction under Section 409 to one under Section 406, I. P. C. and also reduced the sentence to simple imprisonment for 9 months. The fine was also reduced to Rs. 1,500/- and it was directed that out of the fine, if realised, Rs. 1,220/- be paid to the Mandli instead of the complainant. The appellant's revision to the High Court of Gujarat was summarily rejected on April 19, 1967 and leave to appeal to this Court was declined on December 19, 1967. The appellant secured special leave to appeal to this Court on May 3, 1968.

(3.) The appellant had denied receipt of the sum of Rs. 1,220/- and execution of the receipt, Ex. P/13. But the trial Court and the Sessions Court on appeal, concurrently found that the receipt was signed by the appellant after receiving the amount of Rs. 1,220/-. The evidence of the complainant Kalyan Karamshi (P. W. 1) and of Narain Chaggan (P. W. 2) the tola of the Mandli who had scribed the receipt in whose presence the amount of Rs 1,220/- was paid by the complainant to the appellant and who had put the seal of the Mandli on the receipt was believed by both the Courts. The receipt was accordingly held to be genuine and not forged as suggested by the appellant. The plea of the appellant that he was not present at Sultanpur on January 22, 1966 but was at Kodinar was found by both the Courts to be untrustworthy; The learned Sessions Judge, while rejecting the plea of the receipt being forged also took notice of the fact that during the trial different positive suggestions were made by the appellant in regard to the forgery of the receipt.