GNANAPRAKASAM BARNABAS Vs. STATE

JUDGEMENT

(1.) In Sessions Case No. 5 of 1952 on his file, the Sessions Judge of Nagercoil convicted the appellant in this case under S.409 and S.477 A of the Indian Penal Code and S.53 and S.55 of the Indian Post Office Act and sentenced him to undergo rigorous imprisonment for one year under S.409 I. P. C., six months under S.477A I. P. C. and one year under S.53 and S.55 of the Post Office Act, directing the sentences to run concurrently. This appeal is filed against the said convictions and sentences. In the early part of 1951 the appellant was the Post Master of the Kandavila Branch Post Office which is under the Account jurisdiction of the Neyyoor Sub Post Office.

(2.) There was no dispute in this court as to whether the accused was a "public servant" and as to whether PW 4 had entrusted him with the amounts of Rs. 300/- and Rs. 3-12 As. on 5-4-1951 for sending a money order to the Brooke Bond India Ltd., Calcutta. The evidence of PWs 1 and 2 and PW 3 who is the Sub Post Master, Neyyoor, proves conclusively that the accused was the Post Master of the Kandanvila Branch Post Office till 12-4-1951. In his statement in the Sessions Court, the accused admitted that on 5-4-1951 PW 4 gave him Rs. 300/- for sending the money order and also Rs. 3-12 As. money order commission and that he gave the receipt, Ext. E3, for the same. The receipt shows that the money order was for Rs. 300/- and that it was addressed to the Brooke Bond India Ltd., Calcutta. It bears the seal of the Kandanvila Branch Post Office and the signature of the accused and is proved by PWs 1 to 3 who are familiar with his handwriting and signature and by PW 4 who got it from the accused. PW 4 also speaks to the fact of entrustment and its purpose. The evidence of PWs 1 to 4 on these matters is not questioned by the appellant's counsel.

(3.) It is also not disputed that the accused did not despatch the money order from the Kandanvila Post Office. PWs 1 and 2 have deposed that they recovered the money order form which PW 4 had given to the accused on 5-4-1951 from his table at the time of their inspection of the Kandanvila Post Office on 12-4-1951. Ext. G is that money order form. It is dated 5-4-1951 and is identified by PW 4. The registers and account books of the Kandanvila Branch Post Office and Neyyoor Sub Post Office, proved in the case by PWs 1 to 3, show that no money order corresponding to Ext. G was despatched from Kandanvila Post Office after PW 4 gave the money order form and the amounts to the accused on 5-4-1951 and obtained Ext. E3 till the recovery of the form from the accused's table by PWs 1 and 2 on 12-4-1951. The accused had not even entered the amount of Rs. 303-12 As. received by him from PW 4 in the accounts, registers and statements of the Kandanvila Post Office. The explanation that is now given for the omission is that, as PW 4 had paid the amount in small coins, the accused was keeping the money in order to change the small coins into currency notes or coins of higher denominations so that he could send the amount conveniently to the Neyyoor Sub Post Office for transmission of the money order to Calcutta and that he had no dishonest intention in keeping the money. In support of this explanation it is pointed out that PW 4 admits that he had paid the amount in small coins, that on prior occasions also there have been delays in transmitting the money orders received from PW 4, and that after the recovery of Ext. G from his table the accused has made good the amount. We are, however, unable to accept this explanation. If the accused had no intention to dishonestly misappropriate the amount he would not have omitted to enter it in the account books and registers. Not only did he omit to enter it in the account books and registers but he also made false entries in the counterfoil of Ext. E3. Ext. E2 is the counterfoil. PW 4 had entrusted the accused with Rs. 425/- on 29-3-1951 for sending another money order to the Brooke Bond India Ltd. For that money order the accused had given him the receipt, Ext. E5. The particulars entered in Ext. E2 relate to the money order for which Ext. E5 was given and not to the money order of 5-4-1951 for which Ext. E3 was given. The date stamp on Ext. E2 is that of 6-4-1951. It is abundantly clear from these facts that the accused was committing systematic defalcations and covering up some of the earlier defalcations by despatching on later dates some of the earlier money orders with the help of the money received for subsequent money orders and entering the particulars of the earlier money orders in the counterfoils of the receipts issued for the subsequent money orders. Before the joint inspection on 12-4-1951, PW 1 alone had inspected the Kandavila Branch Post Office on 9-4-1951. On that occasion he verified the cash balance and found that it tallied with the accounts. Since the money order, evidenced by Ext. G, was not then entered in the accounts, from the fact that the cash balance tallied with the accounts it can be safely inferred that the accused had taken away from the Post Office the amount of Rs. 303-12-0 entrusted to him by PW 4 on 5-4-1951 for sending that money order. If the accused had not taken away that amount from the Post Office the actual cash balance on 9-4-1951 should have been more than the cash balance as per the accounts on that date and the two could not have tallied. These facts prove conclusively that the accused had dishonestly misappropriated the amount entrusted to him for sending Ext. G and falsifying the accounts and registers to cover up the misappropriation. According to PW 1, he recovered Ext. G from the accused's table at about noon on 12-4-1951. The fact that the accused paid up the amount under it at about 6 P. M. that evening after the detection of the defalcation only shows that he wanted to avoid consequences of his act and not that he had no dishonest intention. Under explanation 1 to S.403 I. P. C. a dishonest misappropriation for a time only is a misappropriation within the meaning of that section. In view of the facts and circumstances mentioned above, the accused is clearly guilty of the offences punishable under S.409 and S.477A of the Indian Penal Code, and we hold that he has been rightly convicted under the said sections.