KAKASAHEB APPASAHEB BHOSALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is preferred by the appellant-accused against the order of his conviction and sentence dated 31-3-1988 passed by the learned Special Judge, Satara, in Special Case No.5 of 1985.

(2.) THE prosecution case, in brief, is that the appellant-accused was a police head constable and he was entrusted with accounts during the period from 1-11-1983 to 26-9-1984 and he used to maintain account books. THE case amount was with the accused and he used to make various payments. It is alleged that P.W.4 Uttam Baburao More was a police constable in Central Reserve Police Force. He was posted at Imphal in Manipur State. He met with an accident while he was on duty. His right leg was amputed. He was in the hospital for about six months. It is alleged that financial help of Rs.3000/- was sanctioned to Uttam More. THE appellant-accused had admittedly received the said amount and he had made credit entry in the books of account and also a debit entry therein but no payment was made to Uttam More. Hence, appellant-accused has committed misappropriation of the said amount of Rs.3000/-. Likewise, the accused though had received various amounts for disbursement did not do so and did not pay the same to the concerned various employees and had thus misappropriated the same. Hence, investigation commenced. After completing the investigation, charge-sheet was filed against the appellant-accused in the Special Court.

(3.) HAVING gone through the record and proceedings of the present case and the evidence of the prosecution witnesses and the judgment of the trial Court, it reveals that there was temporary misappropriation by the appellant-accused while he was discharging his duties as Police Head Constable and was maintaining the accounts in respect of refreshments to the other constables, etc. It is also an admitted fact that the appellant-accused had not disbursed the respective amounts to the claimants and spent the same for his personal use. However, before the actual trial was commenced, the alleged mis-appropriated amount had already been recovered out of the salary of the appellant-accused and the amounts were paid to the respective claimants. Mr. More, learned Counsel for the appellant-accused, has submitted that the appellant-accused was not put questions regarding misappropriation of Rs.3000/- while recording his statement under section 313 Cr.P.C. and in view of the ruling in Sharad Birdhichand Sarda Vs. State of Maharashtra. reported in A.I.R. 1984 S.C. page 1622, wherein it has been held that the circumstances not put to the accused cannot be used against him, the appellant-accused is entitled for that benefit. The learned Counsel took me through the questions put to the appellant-accused in his statement recorded under section 313 Cr.P.C. No such question was asked by the learned Judge. Therefore, technically he is entitled for the benefit of the ratio of the said judgment.