STATE OF GUJARAT Vs. BHOGENDRAPRASAD D PANDYA

JUDGEMENT

(1.) This appeal is filed under Section 378 of the Criminal Procedure Code against the judgement and order passed by the Ld. Sessions Judge, Kutch at Bhuj dated 19.5.1993 in Criminal Appeal No. 15 of 1992 arising from the judgement and order of the Ld. Judicial Magistrate First Class, Naliya in Criminal Case No. 100 of 1985. The respondent-original accused was charged of an offence under Section 409 and 406 of the Indian Penal Code alleging that during 30.4.1984 to 30.8.1984 when the accused was serving as Talati cum Mantri of Village Chadura, after having recovered the government amount did not deposit the same in time, according to the rules and had thus committed temporary misappropriation of Rs.1397.39 ps.

(2.) Ld. Judicial Magistrate First Class, Naliya by his judgement and order dated 15.2.1992 was pleased to hold that the respondent-original accused is guilty of the offence under Section 409 Indian Penal Code and awarded simple imprisonment for 1 year and fine of Rs.2000.00 and in default simple imprisonment for 3 months. Being aggrieved of that, the respondent-original accused preferred an appeal before the Ld. Sessions Judge being Criminal Appeal No. 15 of 1992 wherein the Ld. Sessions Judge, Bhuj was pleased to hold that the Ld. Judicial Magistrate First Class, Naliya has erred in convicting the accused of the offence with which he was charged. The Ld. Sessions Judge was pleased to allow the appeal quashing and setting aside the order of conviction and punishment and he further ordered that the amount of fine if paid be refunded to the accused. The Ld. Sessions Judge was pleased to pass an order that the documents produced by the accused along with his statement under Section 313 of the Indian Penal Code be transferred to `C' file which were ordered to be kept in `D' file by the Ld. Judicial Magistrate First Class.

(3.) Ld. Additional Public Prosecutor Shri K.T.Dave invited the attention of this court to the judgement and order of the Judicial Magistrate first Class, Naliya and also that of the Learned Sessions Judge, Bhuj. Mr.Dave, Ld. APP assailed the judgement and order of the Ld. Additional Sessions Judge by saying that the Ld. Judge having recorded in Para 9 that, `taking into consideration the entire evidence placed on record, a fact clearly emerges that the amount recovered by the accused was not deposited according to the rules.' Mr.Dave submitted that the Learned Judge has also erred in observing that `there is no evidence on the record that the said amount did not lie in the office of the accused' and that `there is no evidence on record to establish that the amount was used by the accused for his personal use' and that `such an act was committed intentionally and dishonestly.' Mr.Dave submitted that the Learned Judge ought not to have accepted the defence put forward by the accused that, `he had fallen sick and therefore, he could not deposit the amount in time', and deposited later on.