P DURUGAPPA Vs. STATE OF MYSORE

JUDGEMENT

(1.) This is a revision petition preferred against the judgment of the learned Sessions Judge, Bellary, in Criminal Appeal No.16 of 1955, confirming the conviction and modifying the sentence pasped by the Sub-Divisional Magistrate, Hospet, in C.C. No. 56 of 1954.

(2.) The case for the prosecution was that the accused, who was a panchayatdar and a member of the Co-operative Society at Kuruvatbi, was entrusted on 21-1-1953 with a sum of Rs. 7,700 by the Hospet Co-operative Central Bank, Ltd., for being credited to the Co-operative Society at Kuruvathi, that he did not credit the said amount till 21-2-1953, that he misappropriated the same temporarily and that he thereby committed an offence under Section 409 I.P.C. The learned Magistrate found the petitioner guilty of the offence with which he stood charged and sentenced him to undergo simple imprisonment for one month and also to pay a fine of Rs.1,000 and in default to undergo simple imprisonment for a period of six months. The Petitioner preferred an appeal as against this judgment to the learned Sessions Judge who confirmed the conviction but reduced the sentence of imprisonment to the period already undergone. The sentence of fine was also confirmed. As against that decision, this revision petition is filed.

(3.) The point that arises for consideration is whether the conviction of the petitioner can be sustained. It appears to me that the guilt has not been brought home to the petitioner beyond all reasonable doubt. That the petitioner was a public servant at the relevant time and that he was entrusted with a sum of Rs. 7,700 on 21-1-1953 is admitted on his side, and there is also both oral and documentary evidence adduced in the case in support of these contentions. It is also proved and admitted by the petitioner that the sum he drew from the Hospet Co-operative Central Bank was credited to the Co-operative Society at Kuruvathi on 21-2-1953, i.e., a month after he was entrusted with the money. But the contention of the Petitioner was, and is, that after he withdrew the amount from the Co-operative Central Bank at Hospet, he fell ill and had to stay at Davangere upto 21-2-1953 and that he could not credit the amount earlier, and that he did not misappropriate the amount as alleged on the side of the prosecution. It may be pointed out, in this connection, that the illness set up by the petitioner has not been proved, as found by the Courts below. But the point that the Courts hid to consider, and will have to consider, is, not whether the defence put forth by the accused was proved, but whether the prosecution has discharged the burden that initially lay on it. The Courts below appear to have been very much influenced in their decision by the fact that the contentious urged by the petitioner have not been made out. In my opinion, the way in which the Courts below haVe proceeded to determine the guilt of the petitioner is not correct.