PUBLIC PROSECUTOR Vs. ARULSWAMI

JUDGEMENT

(1.) THIS is an appeal by the Public Prosecutor against the acquittal of the respondent by the Additional Sessions Judge, Coimbatore, of an offence Under section 409 I. P: C. The respondent was tried by the Sub-Divisional Magistrate, tiruppur, for offences of committing breach of trust of a sum of Rs. 2600 and for making false entries in the accounts of the Panchayat Board punishable Under sections 409 and 477-A, I, P. C. respectively. The magistrate found the respondent guilty Under Section 409, I. P. C. and sentenced him to R. I. for 6 months. He acquitted the respondent of the offence Under Section 477-A I. P. C. On appeal the learned Sessions Judge acquitted the accused of the offence Under Section 409 I. P. C. also.

(2.) THE case for the prosecution is briefly as follows. The accused was the President of the Panchayat Board, Nerinjipet. P. W. 1 visited the Panchayat Office on 24-31960; p. W. 2, the clerk of the Panchayat Office, was in the premises. P. W. 2 produced the account books and cash book. On perusing the accounts, P. W. 1 found that, according to the entries, there ought to have been cash balance of Rs. 2610-23 np as on 24-3-1961. P. W. 1 asked P. W. 2 to produce the cash balance for verification. P. W. 2 told P. W. 1 that the cash was with the accused. When the accused was sent for, ho told P. W. 2 that the officers were coming to check at untimely hours, and that he could not come. P. W. 1 sent a note through his peon to the Divisional Panchayat Officer (P. W. 5) requesting him to go over there. P. W. 5 did not turn up and the accused also did not come. P. W. 1 then went to erode in the evening. Next morning P. W. 1 received a note, Ex. P. 3, from P. W. 5 instructing him to record a statement from the accused if he refused to produce the cash balance. P. W. 1 then went to the Panchayat Office. He was told that the accused did not come to the office. Therefore he recorded statements from P. W. 2, the Vice-President and another person and made an endorsement that the cash balance was not produced. Then he made a report to P. W. 5. P. W. 5 stated that he received the note of P. W. 1 on 24-3-1960 informing him that the President of the Panchayat Board (Respondent) had defalcated its funds. The witness also spoke to his sending Ex. P. 3 and receiving the report from P. W. 1 (Ex. P. 4 ). The evidence of P. Ws. 1 and 5 read along with Ex. P. 3 makes it clear that, when P. W. 1 checked the cash balance, it was not produced, and that the accused failed to make his appearance before P. W. 1. P. W. 2 is the clerk of the Panchayat Office. He corroborated the evidence of P. W. 1. He stated that cash balance according to the accounts as on 24-3-1960 was Rs. 2610. 23 np. , that when P. W. 1 wanted the cash balance to be produced, P. W. 2 met the accused in his room and informed him about it, that the accused said that he would remit the amount and hand over the receipt, that saying so the accused went away, and that no receipt was produced by the accused before P. W. 1. The witness corroborated the testimony of P. W. 1 that he came to the office again on 25-3-1960, and obtained a statement from him. P. W. 3 is another member of the Panchayat Board. He stated that neither he nor P. W. 1 nor one Vadichi Gounder took Rs. 2600 from the accused.

(3.) THE accused denied having committed the offence. He stated that at 11 a. m. on 24-3-1960, P. W. 1 came to his office and took a sum of Rs. 2600 in the presence of Vedichi Gounder stating that he would remit the amount into the Treasury, and that coming to know that money had not been remitted into the treasury he sent a telegram.