NILAMBER Vs. STATE

JUDGEMENT

(1.) This is an appeal by one Nilamber Joshi who has been convicted by the learned Sessions Judge of Kumaun for an offence punishable under Section 409, I. P. C., and sentenced to one year's R. I. and to a 6ne of Rs. 100/- or, in default of payment of fine, to further rigorous imprisonment for 2 months. The appellant was a postman at the post office at Almora, and he has been convicted for having dishonestly misappropriated a sum of Rs. 30/-which is said to have been entrusted to him for disbursement under a money order, the remitter of the amount being one Uttam Singh and the payee Mohan Singh, a student of the Degree College at Almora.

(2.) The prosecution case was that two money orders were received at the post office on 10-6-1952, the payee of both of which was one and the same person, Mohan Singh. The amount under one was Rs. 20/- and that under the other Rs. 30/-. Both the money orders & the amount thereof were handed over to the appellant, but while he did pay the amount of Rs. 20/-, he failed to pay that of Rs. 30/-, to the payee Mohan Singh. When Mohan Singh failed to receive this amount of Rs. 30/-, he entered into correspondence with the remitter Uttam Singh, who is a onisin of his and was in military service. On coming to know from Uttam Singh that the amount in question had in fact been remitted by him to Mohan Singh, and that the signature of Mohan Singh on the acknowledgment receipt did not appear to be his, Mohan Singh made a complaint to the Post Master at Almora on 22-7-1952. This complaint led to a departmental enquiry being held by the Inspector of Post Offices, and, as a result of this enquiry, the Inspector of Post Offices lodged a report with the police on 3-8-1952. Police investigation followed and the appellant was thereupon prosecuted and convicted as aforesaid.

(3.) The appellant admitted not having delivered the amount in question to the payee Mohan Singh. The story set up by him in this connection was that though he did not really pay the amount to Mohan Singh and Mohan Singh did not append his signatures on the money order form in his presence, he gave the amount of the money order at the house of Mohan Singh to a boy whom, he did not know from before. The appellant went on to state that the boy took the money order form and the money inside a room and that he later came back with the money order form duly signed and told the appellant that the money had been paid to Mohan Singh. The appellant stated further that he called out if the money had been received and somebody replied in the affirmative from inside the rooms, and thereupon the appellant came away thinking that the amount of the money order had been paid to Mohan Singh. Mohan Singh denied receipt of the amount. He also denied his signatures on the money order form. Two other students, Sher Singh and Umed Singh, the former of whom lived in the same room with Mohan Singh and the latter in another room of the same tenement, were examined but they denied that they received, or handed over to Mohan Singh, the money order form or its amount, The appellant did not produce the boy through whom he professed to have sent the money order form and its amount into Mohan Singh's room nor any other evidence in support of his statement. The learned Sessions Judge did not accept the statement of the appellant and, on a consideration of the entire evidence and circumstances, and accepting the unanimous opinion of the assessors in that behalf, held that the appellant had dishonestly misappropriated the amount of the money order and so committed the offence of criminal breach of trust under Section 409, I. P. C.