BHANUBHAI RAMBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal by the accused who was convicted and sentenced on the four counts by the Assistant Sessions Judge he had been proposed to be acquitted by both my learned Brothers who agree on that question of the offence punishable under secs. 467 and 471 of the I.P.C. to the setting aside of the conviction and sentence awarded on this count on the score that resolution Ex. 75. dated November 26 1962 had been forged. Both the Judges agree to set aside the said conviction and sentence and for ordering fine if any recovered from the accused to be refunded to the accused. Both my learned Brothers however differ on the score of appreciation of evidence bearing on the other charge of misappropriation of Rs. 57104.00under sec. 409 and for falsifying the accounts in this connection under sec. 477A for which the accused had been sentenced to suffer R I. for 5 years and a fine of Rs. 2000.00 in default R.J. for six months and R.I. for 3 years respectively on these two remaining charges. That is why the matter has come up before me for resolving this difference.

(2.) The charge against the accused at Ex. 3 is that in his capacity as Sarpanch of Dolti Gram Panchayat he had been entrusted with a sum of Rs. 57104 being sale proceeds of 20 plots of land S. No. 198 admeasuring 4 A. 39 G. which had been sold by the Panchayat and the said amount had been dishonestly misappropriated by this accused by converting to his own use. The charge was of criminal breach of trust which rested on the first two acts mentioned in sec. 405 of dishonest misappropriation or dishonest conversion to ones own use and the third aspect in that defin- ition did not form the subject matter of the charge of dishonest user or disposal of the property in violation of any law prescribing the mode in which such trust was to be discharged or in violation of any legal contract express or implied which he had made touching the discharge of the trust. This aspect had been rightly mentioned by my learned Brother Bhatt J. because the trial Judge had dealt with the third aspect which was not the subject of the charge against the accused and therefore Mr. Chhaya could hardly in that context invoke in aid the decision in SUSHILKUMAR GUPTA V. JOY SHANKAR A.I.R. 1971 S.C. 1543 at page 1546 as otherwise there would be great prejudice to the accused in the absence of any charge or relevant evidence on that score.

(3.) The relevant facts which are undisputed must be borne in mind. The accused was from the commencement of this village Panchayat elected Sarpanch since 1956. He was a semiliterate agriculturist rustic villager Sarpanch who would be hardly conversant with any relevant complicated rules. There is another fact that the Panchayat had passed a resolution Ex. 80 dated December 23 1961 for the purchase of this land S. No. 198 from Bhanuben Meram and to borrow funds from this Sarpanch because the Panchayat had not the necessary funds for purchasing this plot. This plot had been purchased on March 4 1962 N.A. permission had been obtained on November 8 1966 Thereafter this land was divided into 20 sub-plots and after due public notice by public auction these plots had been sold on December 4 1967 and 1/4th amount of the sale proceeds was received on that very day while the balance 3/4th amount was received on December 18 1967 The evidence regarding entrustment which had been relied upon by both of my learned Brothers for the amount of sale proceeds of these plots of Rs. 57104 under the sale deed at Ex. A is not challenged by Mr. Trivedi Therefore the only relevant question which arises is whether the accused has from the evidence on record probabilised his explanation that this entire amount had been used by him on the various village projects as state by him and for which various Rajmels and receipts had been relied upon by him along with the relevant prosecution evidence. It is here that a difference has arisen between both my learned Brothers as to whether the accused had on the evidence on record probabilised his plea or his explanation was a false explanation so as to complete chain of circumstantial evidence against him.