PRATAPSINH V VED Vs. STATE

JUDGEMENT

(1.) THIS appeal is from an order of conviction of the appellant of an offence Under Section 409, Indian Penal Code, and sentence of two years' rigorous imprisonment and a fine of Rs. 400/-, in default further rigorous imprisonment of three months. The offence was alleged to have been committed by the accused in respect of a sum of Rs. 397-80 received and misappropriated by him. The accused was a junior clerk in the office of the Chief Minister from February 1949 to December 1950. The staff of the office of the Chief Minister in April 1949 comprised a Personal Secretary who then was R. C. Raval, two stenographers named Bhadrakant Dholakia and K. G. Oza and a junior clerk, the accused. The duties of the accused then were to receive and despatch post, to present bills in the office of the Comptroller, to receive cheques for payments, to receive payments and cheques from the Bank and to disburse the amounts so received. It was also his duty to receive money orders and to maintain accounts which were then kept in an exercise book. In short, he was not a mere despatch clerk but was also doing duties as a cashier to receive and remit amounts. It is however not very necessary for the purposes of the present case to define exactly the duties then performed by the accused; but there is no doubt that he was receiving money orders which were being received by the office of the Chief Minister and he

(2.) THE financial year of 1948-49 was a scarcity year and a Scarcity Relief Fund was started by Government of Saurashtra. Amounts were being received towards it by cash, cheques, drafts and money orders in the office of the Chief Minister. The account relating to the fund was not being maintained in the Chief Minister's office but in the Home Department of the Government, to which or (?) the treasury, cheques, drafts and cash were being forwarded when received by the office of the Chief Minister; whenever any communication relating to the fund was received by the Chief Minister's office it was forwarded to the Home Department. In short, the Chief Minister's office was merely an intermediary. On 23-4-1949 a sum of Rs. 400/-less remittance charges, the net amount being Rs. 397-8-0 was received by a telegraphic money order from Busum Bhatia in Uganda, South Africa, in the office of the Chief Minister as contribution to the fund. On this date admittedly both Baval and Oza were at Jamnagar and admittedly the amount was received by the accused. The amount was sent by one Laxmishanker Joshi who also sent a letter (Ex. 6) dated 21-4-1949 addressed personally to the Chief Minister, accompanied by a list of donors (Ex. 7 ). The letter refers to two items, one of Rs. 600/- and the other of Rs. 400/-, the latter being towards the scarcity fund. It also states that the money had been sent by the telegraphic money order. The letter was received by Baval, the Personal Secretary to the Chief 'minister on 10-5-49 as we find his initials with this date and the word 'scarcity' in his handwriting. The letter does not show that it was in awarded in the office as it does not bear the inward number; it is also not entered in the inward register. The letter along with the accompanying list of donors (Ex. 7) was sent to the Home Department on 14-5-1949 by a covering letter (Ex. 8) signed by Raval. This letter is not outwarded; it is not entered in the outward register. It is couched in few words forwarding Exs. 6 and 7 saying that they related to the scarcity department. The letter was received by the Home Department on the same date and in awarded in that department. There is no note in the inward register of the Home Department that any money was received with the forwarding letter. On the contrary there is an endorsement on Ex. 6 that receipt of money may be awaited. So money was not received by the Home Department. The amount was also not credited in the treasury. This is firmly established. As these three Exs. 6, 7 and 8 were sent from the office of the Chief Minister direct to the Home Department without their being in awarded or outwarded in the office of the Chief Minister, it is very probable that the accused who was then doing the work of despatching letters had no knowledge of their receipt in the Chief Minister's office and despatch to the Home Department, else the letters would have been in-warded and outwarded. The accused's defence to the charge of breach of trust was that although he had received the amount on 23-4-1949 by telegraphic money order from Africa, he had handed over the amount in accordance with the usual practice to Raval, the Personal Secretary to the Chief Minister, two or three days after receipt. It is firmly established and not disputed that on the date of receipt neither Raval nor Oza were in Rajkot. They were then at Jamnagar; but he says that when they returned two or three days thereafter he handed over the amount to Raval. Then only an exercise book was being maintained by the Chief Minister's office as an account book but evidence of Raval as well as Oza is that the amounts received by the Chief Minister's office in respect of the scarcity fund were never entered in it. This was probably due to the fact that the account relating to the scarcity fund was being maintained by the Home Department, the Chief Minister's office merely acted as a sort of post office to forward communications and contributions received by it. We lay particular emphasis on the fact that Exs. 6, 7 and 8' were sent direct by Raval to the Home Department. If the amount was handed over by the accused to Raval as is being alleged by the accused and Raval had intended to misappropriate the amount, he would not be so foolish as to forward Exs. 6, 7 with 8 to the Home Department. Nothing would have been easier for him than to have destroyed Exs. 6 and 7. Being the Personal Secretary to the Chief Minister, post addressed personally to the Chief Minister would be opened by him and not by any ' junior clerk like the accused. The two alternatives are either the accused misappropriated the amount or he handed it over to Raval who misappropriated it or forgot all about it.

(3.) THE next stage comes at about June 1949 I when a letter dated 276-1949 was sent by the Comptroller's office to the Personal Secretary to the Chief Minister stating that an amount of Rs. 400/- and a further amount of Rs. 615/- (with which we are not concerned) were not credited towards the famine relief fund. This letter has not been produced by the prosecution and there is no evidence as to what action was taken thereon. But we find a letter written by Raval on 19-6-1950 about a year thereafter, to the Comptroller, Saurashtra State, in which he states that the Chief Minister would like to know the statements of total amounts received on account of famine relief fund upto date, and also as to how the amounts were used. Along with this letter is enclosed a statement of amounts received from various persons by the Chief Minister's office which were either sent to the Comptroller direct or through the Chief Secretary (meaning through the Home Department ). The letter adds that this statement may-not be perfect and required verification. It ends with a request to verify the statement, figures of which had been taken from the office of the Chief Minister as also from the Chief Secretary's office. This letter is Ex. 9 and the accompanying statement Ex. 10. In the letter we find the item of Rs. 400/-received from L. K. Joshi (Dhrolwala), Busum Bhatia, Uganda, on 21-4-1949, To this letter was received a reply dated 25-6-1950 from the office of the Comptroller, which says that the figures shown in the statement have been verified with the register showing contributions received on account of the relief fund, but that there is a difference of Rs. 1015/which comprises two items of Rs, 615/- and of Rs. 400/-, the latter being stated to have been received from L. K. Joshi. These two items are not shown in the register maintained by the Comptroller's office and in the last paragraph of this letter, reference is made to the previous letter dated 27-6-1949 referred to above wherein these two amounts were also stated not to have been received. Now Exs, 9 and 10 are both in the handwriting of Raval. Mr. Dalai the learned advocate for the appellant is fair enough to concede this. Ex. 10, the statement, contains the item of Rs. 400/- received from Joshi. The same argument would apply that if Raval had misappropriated this amount he would not have mentioned this item in the list (Ex. 10 ).