STATE Vs. BANKEY BEHARI

JUDGEMENT

(1.) THIS appeal by the State is directed against an order of acquittal passed by the learned 2nd Asstt. Sessions Judge of Aligarh and arises under the following circumstances:

(2.) THE Respondent while admitting that he was an Extra Departmental Stamp Vendor during the relevant period denied that the Post Master had asked him to get the stamps in his custody checked or that he had gone to the Post Office on 26 -6 -56. According to him, he was on leave from 28 -6 -56 and it was only on his return from that leave that he came to learn about the case instituted against him whereupon he surrendered himself in Court. He pleaded ignorance as to whether he received the sum of Rs. 40/ - per month as salary or commission. He did not examine any witness in his defence.

(3.) MR . Bhatt learned Counsel for the State, contended that on the first three findings of the trial court, as reproduced above, the fact that the Respondent had sufficient deposit to his credit with the government whereby the loss could be imbursed was neither relevant nor conclusive of the absence of dishonest intention of the accused. Incur opinion the view taken by the court below on this part of the prosecution case, is, in view of the First Explanation to Section 403 IPC, so patently erroneous that it cannot be sustained. Indeed even Mr. P.C. Chaturvecli, the learned Counsel for the Respondent, had to concede with his usual frankness, that he could not support the order of acquittal on that ground. He however sought to support it by challenging the correctness of the finding of the court below on the question of entrustment. According to him, on a correct appreciation of the evidence on record and the law applicable thereto, the transaction in question did not amount to an entrustment but was in substance and effect a loan, with the result that the said transaction did not fall within the purview of Section 409 IPC and hence was not an offence under that section. This contention we shall proceed forthwith to examine.