KOLI RAJA SARWAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants in these two appeals were accused Nos. 1 and 2 respectively in Sessions Case No. 4/65 in the Court of the Additional Sessions Judge, Porbandar at Junagadh On trial before that Court they have been convicted by the learned Additional Sessions Judge, of an offence under Section 406 read with Section 34 I P. C. in respect of an alleged misappropriation of two sums of money one of Rs. 2700 and the other of Rs 466.62 in all Rs. 3166.62. committed in the year 1959. For that offence each of them has been sentenced to rigorous imprisonment for 2 years and a fine of Rs 1000A in default of payment of which to undergo further rigorous imprisonment for six months. There was a separate conviction recorded against accused No 1 also for an offence under Section 406 I. P. C. in respecl of the sum of Rs 2700 A and a separate conviction recorded against accused No. 2 under Section 408 I. P C. for the sum of Rs 466.62 but no separate sentences in respect of those convictions were imposed

(2.) The material facts are these: Accused No. 2 Bhikha Kachra was the Secretary of the Kukasvada Group Multipurpose Co-operative Society continuously from August 1958 to July 1963 and accused No 1 Raja Sarwan was the President of that Society from July 1957 to July 1963 except for the period March 1968 to July 1962. As the Secretary accused No. 2 had to maintain accounts, documents and vouchers and was under the Rye-laws entitled to receive payments of money and to incur necessary expenses. As the President of the Society accused No. 1 was in custody of the cash of the Society and had to receive cash and deposit it into the bank as also to supervise the work of accused No. 2. The auditor of the Cooperative Department one Mr. Jayantilal Kothari visited Kukasvada in the course of his duties and inspected and audited the accounts of this Society from 26 6 1963 to 30-6-1963. On such inspection he noticed misappropriation of an amount of more than Rs, 35000/-during the period from 1959 to 1963. The misappropriation substantially consisted of failure to credit the payments made by the debtors to the Society in respect of which payments, kachha receipts had been issued to the said debtors. He also found that accused No. 1 was not able to produce the balance of the general cash book amounting to Rs 1541.39 and accused No 2 was not able to produce the cash balance of the Society's shop amounting to Rs. 1551.98. On the basis of his inquiry and report, a complaint was filed before the police. Investigation started and the accused were prosecuted.

(3.) Five charge-sheets were sent up against these two accused one for each of the years 1959, 1960. 1961. 1962 and 1963. Five Sessions trials were held on the basis of the committal orders made in respect of the five charge-sheets The Sessions Case No 4 of 1965 related to the alleged misappropriation in the year 1959. The present appeals (Criminal Appeals Nos. 417/65 and 488/65) arise from the conviction recorded and sentence passed in that case. The Sessions Cases Nos. 5. 6, 7 and 8 of 1965 related to the alleged misappropriation in the years 1960, 1961 1962 and 1963 respectively. In those cases also the convictions have been recorded and there arc separate appeals filed against those convictions Those appeals have also come up for hearing before this Court along with the present appeals