AMBALAL ASHARAM JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has been convicted by the City Magistrate IV Court of offences under secs. 409 and 477A of the Indian Penal Code and sentenced to a single sentence of rigorous imprisonment for 18 months and a fine of Rs. 200/in default of payment to suffer further rigorous imprisonment for three months. The sentences in this case were ordered to run concurrently with those passed against the same appellant by the same Magistrate in Criminal Case No. 299 of 63.

(2.) The appellant was a paid servant of the State Transport Employees Co-operative Credit and Thrift Society at Ahmedabad and the charge relates to a criminal breach of trust in respect of various sums amounting to Rs. 3472/alleged to have been entrusted to him during the period between 17th October 1960 and 31st December 1960 at Ahmedabad. The appellant joined the Society as its Secretary in 1950 and was working as such Secretary at the relevant period when the offences are alleged to have been committed. As such Secretary he had to maintain books of accounts and had to handle cash as deposed to by prosecution witness No. 1 Bava Amritsing Bhalla who was Chairman of the Society at the time he was examined and P. W. 7 Bansilal Ambalal Joshi who was the Societys Internal Auditor for a considerable period. The say of these witnesses on this point is supported by by-law No. 49 of the Society which has been produced in this case. Bhallas testimony shows that on 26th July 1962 he was told that there was a suspected fraud in the affairs of the society as it appeared that in one case an amount had been debited as loan in the account of a person who normally did not take any loan and that in another case a loan though sanctioned was not taken by the member. On being confronted by Bhalla with the facts of these two cases the appellant admitted that he had defrauded to the extent of Rs. 3200/and with a view to bring the matter to a close he passed according to Bhalla a writing which has been produced as Exh. 3 in the case. In that writing after admitting misappropriation of Rs. 3200/the appellant promised to pay a sum of Rs. 2000/by 30th July and appealed to Bhalla to close the matter and not to take steps against him. Bhalla placed the matter before the Managing Committee the next day that is on 27th and the Managing Committee considering appellants long service to the Society decided not to prosecute him or to impose any severe penalty except stoppage of four increments for one year. On the second August 1962 the appellant paid Rs. 2200/to the Society but that on the very day so Bhallas testimony runs Bhalla received information of defalcation in respect of the sums of two persons namely Manilal Bhavsar and Inspector Pathak. The appellant was again interrogated and this time he admitted deFalcation to the extent of Rs. 16 0 and requested the chairman in writing to give him time to pay up the amount which he promised to repay in full. That writing has been produced at Exh. 7. The matter was again placed before the Managing Committee. It was decided to hand over the case to the police. Accordingly a complaint was filed. That complaint dated 4-8-1962 is at Exh. 9. Investigation followed and the present case is one of the cases put up against the appellant as a result of the investigation.

(3.) The Society is a credit society and one of the by-laws of the Society namely by-law 50 provides inter alia that no fresh loan shall be given to a member till the old debt remains to be cleared. This fact is deposed to also by witness Bhalla. A practice appears to have therefore come into existence for a debtor member to pay up the balance of his previous loan at the time of applying for a fresh loan. The balance would be paid either in cash or by way of deduction from the amount payable for the fresh loan. According to the prosecution some of the payments so made by members while obtaining fresh loans have been misappropriated by the appellant and have not been entered by him in the Societys Cash Book as it was his duty to do as a Secretary of the Society. The amounts with which this case is concerned are as under:-