ABDULKHADAR Vs. STATE

JUDGEMENT

(1.) The Petitioner has been convicted by the learned additional First Class Magistrate of Ernakulam (C.C. No. 3 of 1957) under S.409, Penal Code and sentenced to under to rigorous imprisonment for 3 months. The Additional Sessions Judge, Ernakulam who heard the appeal (Criminal Appeal No. 137 of 1957) against that decision confirmed the conviction and the sentence and dismissed the appeal Hence this revision.

(2.) The petitioner was a Bill Collector of the Ernakulam Municipality and the case against him was that during the period 3-9-1951 to 3-7-1952 out of the collections made by him in his official capacity he misappropriated amounts to the tune of Rs. 786/7/1 and thus committed the offence of criminal breach of trust by a public servant punishable under S.409, Penal Code. The Trial Court found that misappropriations to the extent of Rs.748/13/- have been made out and accordingly convicted and sentenced the petitioner as stated earlier. The learned Additional Sessions Judge confirmed the conviction and sentence. The facts are not in dispute and they have also been proved beyond all doubt. As per Exts. P-4 to P52 the petitioner collected during the period referred to above the sum of Rs. 748/13/-. Admittedly these amounts were not remitted to the Municipal office as enjoined by practice and the rules the same day or the earliest occasion possible. It was only when the misappropriations were found out that he thought of making good the amounts to the Municipality. Both sides are agreed that the petitioner was a public servant within the meaning of that term under the Penal Code.

(3.) In this revision against the concurrent decisions holding the petitioner guilty under S.409, Penal Code, Mr. Manual Paikaday, learned counsel for the petitioner urged three points before me. They were (I) that the prosecution initiated without the sanction under S.197, Criminal Procedure Code was bad in law and unsustainable, (II) that the prosecution had failed to prove that the failure to remit the various amounts as and when they were collected was in violation of any direction of law prescribing the mode in which the trust was to be discharged, or of any legal contract cypress or implied, which the petitioner had made touching the discharge of the trust and (III) that in any event it has not been made out that the failure to remit the money was dishonest. All these points have been considered by both the courts below and as I am in full agreement with their conclusions I do not propose to discuss the question at any great length.