VIJAYDIGAMBAR LANJEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant has been convicted under S. 409, Indian Penal Code for having misappropriated a sum of Rs. 8741.40 and has been sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000. 00, in default to suffer rigorous imprisonment for six months. The facts reveal that the appellant was serving as a clerk in the office of the Mayor of Pune at all material times. The firm of M/s Hira Lal Mehta and Co. had to recover a sum of Rs. 8,741.40 from the Municipal Corporation besidesanother amount of Rs. 1,446.96. Two cheques bearing numbers 646749 and 646750 dated 5/05/1973 for the said two amounts, were drawn up a in favour of the said firm. Out of these two cheques, one cheque bearing number 646750 for Rs. 1,446.96 was admittedly paid to the representative of the said firm but the other cheque for Rs. 8,741.40 was not delivered to the said representative. It appears that the said cheque was encashed by the original accused 2, the peon working in the Mayor's office. Since it was not crossed, the cheque could be encashed. After the cheque was so encashed the amount was paid by the original accused 2 to the present appellant. The present appellant as well as the original accused 2 were called by the Mayor in his chamber on May 11, 1973 after he received a complaint from the representative of the concerned firm. In the chamber of the Mayor original accused 2 stated that he had encashed the cheque and had paid the amount to the appellant. The appellant kept quiet on that occasion but later executed Ex. 36 whereby he undertook to make good the amount by Monday, 14/05/1973. It is an admitted fact that the appellant did not pay the amount as promised.

(2.) On 11/05/1973 after the Mayor learnt about the misappropriation, he jointly with Public Witness 1 - Raman Lal A. Mehta, partner of M/s Hira lal Mehta and Co. , lodged a complaint with the Inspector, Deccan gymkhana Police Station, Pune. On the basis of the complaint the matter was inquired into and ultimately the appellant and the peon came to be charge-sheeted. The learned JMFC, Pune convicted both the accused under S. 408/34, Indian Penal Code and sentenced them to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000. 00, in default to suffer rigorous imprisonment for six months. Both the accused appealed against their conviction. The learned Additional Sessions Judge, Pune, dismissed the appeal of the appellant and convicted him under Section 408, IPC, maintaining the sentence. He, however, allowed the appeal of the co-accused and acquitted him. Against the said order of conviction the appellant approached the High court in revision which summarily rejected it. Against the said order the appellant approached this court under Article 136 of the Constitution.

(3.) The conviction is based on the evidence of Public Witness 1 Raman Lal, pw 2 Nilkanth Waman Limaye (the Mayor) , Public Witness 5-Raj Shekhar bidawe and the letter Ex. 36 dated May 11, 1973. The learned counsel for the appellant has taken us through the relevant part of the evidence of the aforesaid witnesses as well as the first information report Ex. 30 and the appellant's letter Ex. 36. From the evidence tendered on record it becomes clear that the appellant was in charge of the Mayor's Relief fund and had prepared both the cheques in question dated 5/05/1973. It is also clear that only one cheque of Rs. 1,446.96 was delivered to therepresentative of the firm of M/s Hira Lal Mehta and Co. The evidence of pw 1 makes this position clear. This is also clear from the evidence of pw 5, an employee of the said firm. The cheque for the amount of a rs 8741.40 was not delivered to the representative of the firm. Inquiries in regard to that cheque were made with the Bank of Maharashtra and it was found that the cheque was encashed by the peon who normally went to the bank to make deposits, etc. When this fact became known, Public Witness 2 was informed about the same and it was thereafter that he called the appellant and the peon in his chamber on May 11, 1973 and inquired about the payment of Rs. 8,741.40. The peon informed the Mayor that he had encashed the cheque and paid the amount to the appellant. 'the appellant is stated to have kept quiet. If the appellant had not received the amount, he would have stoutly refuted the charge levelled against him by the peon. Not only did he not react but he gave the letter Ex. 36 to the Mayor assuring him that he would make good the payment by monday, 14/05/1973. In the letter he stated "i am making good this amount in order that I may be able to lead good life in future. Your honour may not misunderstand me". From this document it becomes clear that the appellant undertook to pay the amount by Monday, 14/05/1973. He would not have undertaken to pay such a substantial amount, if he was in no way involved as was tried to be made out before us by the learned counsel for the appellant. On the basis of this evidence all the courts below have come to the conclusion that the appellant was guilty of misappropriation and we see no reason to depart from them.