THANKAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE revision petitioner is the accused who was convicted by the Magistrate under S. 409 I. P. C. and sentenced to undergo rigorous imprisonment for four months. Having failed in his attempt to challenge the correctness of the order in appeal he has moved this Court in revision.

(2.) THE accused was the Executive Officer of the thevalakara Panchayat. In that capacity he came into possession of a sum of Rs. 929-65 p. which he was bound to remit into the Government Treasury on 1st january 1963. THE prosecution case is that he misappropriated the amount for twenty-two days before he sent the amount through a messenger. THE accused while admitting that he came into possession of the amount as also his liability to deposit the amount in the Treasury on the first, pleads that he was prevented by a serious attack of fever which he contracted on the first and which developed into typhoid from the fifth, from personally remitting the amount or making proper arrangements to send it through messenger. He was putting forward that plea consistently from the very start even at the investigation stage and relied upon the evidence of Pw. 7 who treated him at the initial stages and Dw. 1 under whose treatment he was thereafter. THE courts below disbelieved the evidence of Dw. 1 and found that the accused had misappropriated the amount as he failed to prove the fact of his illness.

(3.) BOTH the courts make much of the failure of the accused in his statement under S. 342 Criminal Procedure Code to offer an explanation for not having remitted the amount into the Treasury as per the rules. There is neither an allegation nor even a hint in any of the questions that the accused had misappropriated the amount during the twenty-two days or acted with a dishonest intention in retaining the money with him. Hence there was no occasion for him to come out with an explanation at all. Moreover in the letter sent by him with the money on 22nd january 1963 he had already explained in detail the cause of the delay in sending the money.