NAGINDAS KESHAVLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant Nagindas Keshavlal was convicted by the Judicial Magistrate. First Class Godhra under sec. 409 Indian Penal Code and sentenced to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 500in default to undergo further rigorous imprisonment for three months and this conviction was confirmed but the sentence was reduced in appeal by the learned Sessions Judge of Panchmahals at Godhra in Criminal Appeal No. 52 of 1960.

(2.) The charge against the applicant was that he was Naka Karkun on duty at Satpul Octroi Naka from 9 P.M. to 5 A.M. On the night of 31 and 1-9-1958 that at 1 A.M. he received Rs. 9-6-0 as octroi duty from one Natharmal in respect of 75 maunds of bananas imported from Baroda that receipt (Ex. 6) for this amount was given that the applicant was relieved by Nakedar Sadatali and that instead of this amount of Rs. 9-6-0 received by the applicant he paid Rs. 4-6-0 to Nakedar Sadatali and he misappropriated the balance of Rs. 5.00. To prove this case the prosecution relied mainly on the evidence of Sadatali that he had received only Rs. 4-6-0 from the applicant instead of Rs. 9-6-0 and on the receipt (Ex. 6) showing that the applicant had received Rs. 9 from Natharmal as octroi duty. The prosecution also wanted to rely on the counterfoil of this receipt which was counterfoil No. 1003 in Book No. 11. According to the prosecution this counterfoil was caused to be destroyed either by the applicant or by one Winfred the Naka Superintendent. The prosecution therefore led secondary evidence of this counterfoil No. 1003 in receipt book No. 11. The nature of the secondary evidence that was led was oral evidence regarding the counterfoil of this receipt. The case of the prosecution was also that page 115 of the Rojmel Book in which all the entries are entered and in which entry should have been made regarding the counterfoil No. 1003 was missing. The prosecution therefore led secondary evidence of this page 115 of the Rojmel Book in order to show that the counterfoil No. 1003 in receipt book No. 11 corresponding to the original receipt (Ex. 6) was in respect of Rs. 4-6-0 only and that the quantity of bananas shown in the counterfoil was only 35 maunds instead of 75 maunds shown in the original receipt (Ex. 6) given to Natharmal the owner of the truck in which the bananas were imported.

(3.) The learned Sessions Judge rejected the contention of the defence that secondary evidence was not admissible. He held that the secondary evidence was properly admitted and mainly basing his conclusion on the secondary evidence of the contents of the counterfoil No. 1003 in receipt Book No. 11 he confirmed the conviction of the applicant.