ARUNACHALAM Vs. STATE OF KERALA

JUDGEMENT

(1.) SRI. P. K. Venugopal, the learned Counsel for the revision Petitioner, not only contends that there is no legal evidence to hold the accused (Revision Petitioner) guilty of any offence but also argues that his conviction under S. 409 IPC. , on the assumption that he is a'public servant' is manifestly illegal.

(2.) THE prosecution case briefly stated is as follows: THE revision petitioner while acting in his capacity as the secretary of a co-operative society committed misappropriation to the tune of Rs. 1000/- by fraudulently striking the balance at Rs. 127-88 on 8-9-1962 and showing the expenditure to be Rs. 2237-07 instead of the actual expenditure of Rs. 1237-07. THE accused falsified the accounts to suit the above amount. Both the President and the secretary were proceeded against. It appears that the revision petitioner was absconding for some time and in the meanwhile the President was proceeded against and was ultimately acquitted. Apart from the sum of Rs. 1000/- referred to above, there was a case of criminal breach of trust in respect of a sum of Rs. 385-63 also. THE prosecution of the revision petitioner was for offences under S. 409 and 477a IPC. THE trial court convicted him under both the charges and sentenced him to undergo R. I. for 2 years under S. 409 ipc. , and six months under S. 477a. THE Appellate court while confirming the conviction under both the charges, reduced the sentence under S. 409 to R. I. for one year and six months, without altering the sentence under S. 477a. THE correctness of the decisions of the courts below is challenged in this revision petition.

(3.) THAT does not however mean that no offence against the accused has been made out. The evidence on record would go to show that the accused has committed an offence which would rightly fall under S. 408 IPC. All the necessary evidence is here, and there is no case that any material prejudice would result if the charge is altered from S. 409 to 408 IPC. Therefore, in exercise of the power under S. 423 of Cr. P. C. , I convict the accused under S. 408 IPC. As for the conviction and sentence under S. 477a is concerned, it shall stand confirmed as has already been held by the court below.