STATE OF MAHARASHTRA Vs. RAMAN KALIDAS PONDA

JUDGEMENT

(1.) THIS is an appeal by the State against the acquittal of the respondent, whose conviction under Section 408, Penal Code has been set aside by the Additional Sessions Judge. Thana. In 1947 a co-operative society called "kainad Vibhag Adiwasi Kamgar Sahakari Sangh Ltd. ", was started at Kainad in Dahanu taluka. The Secretary of this society, one Nargolkar, resigned on 29-11-1948. On 10-12-1948 a Khata was opened in the name-of the respondent. The entries made in this Khata show that on that day Rs. 4492-9-6 were paid to the respondent. Some amounts were taken back from the respondent between 10-12-1948 and 9-1-1949 for the expenses of the Society. On 9-1-1949 the Managing Committee of the Society passed a resolution appointing the respondent as its Honorary Secretary. As Secretary of the Society it was his duty to transact all business on behalf of the Society, to organise the sale of the produce of the Society, to collect and realise the sale proceeds, to spend monies on behalf of the Society and to supervise the accounts of the Society. Witness Vinayak Phanse then used to write the accounts of the Society under the instructions of the respondent. The monies received for the Society were kept with the respondent and from these monies he used to pay the amounts required for the expenditure of the Society. The amounts realised by the Society were debited in the Khata of the respondent and the amounts that were expended for the expenses of the Society were credited in this Khata. On 30-3-1949 the amount of the Society lying with the respondent was Rs. 3054-2-3. A statement of account purporting to be a statement of transactions done by the respondent, Ex. 10, was then submitted to the Managing Committee and was passed by it. This shows that the amounts received and spent on behalf of the Society were debited and credited in the Khata of the respondent. In 1950 the balance with the respondent was Rs. 23,069-2-3. The auditor look an objection to such a large amount being allowed to remain with the respondent. In spite of this objection large funds of the Society continued to be kept with the respondent. On 30-9-1951 the respondent had with him Rs. 33,772-3-3 belonging to the Society. As the Society was then in need of funds, the Chairman of the Society, witness Bhise asked the respondent to pay back the amount to the Society. The respondent admitted his liability; he paid about Rs. 4,000/- up to March 1952 and informed Bhise that he was not able to pay any more, amount and that he wanted some more time. On 5-3-1952 Bhise wrote to the respondent calling upon him to pay the amount. He also complained to the Registrar, Co-operative Societies, that the respondent had misappropriated large amounts belonging to the Society. On 3-3-1952 the respondent wrote to the Chairman, stating that he was ashamed that he had not been able to pay off the amount of the Sangh and he asked for time to enable him to pay it. On 2-4-1952 the auditor, Co-operative Societies, called upon the respondent to produce the cash balance of the Sangh lying with him. The respondent replied to this letter on 4-4-1952 and asked for time till 15-4-1953. On 10-4-1952 the respondent was asked to credit the amount in the Dahanu Branch of the Bombay Provincial Cooperative Bank before 1g-4-1952. As he did not do so, the Managing Committee of the Sangh decided to refer the matter to arbitration. The arbitrator made his award on 14-7-1952. The Society thereafter recovered the entire amount awarded to it by purchasing some immoveable properties belonging to the respondent, his brother and his mother. Thereafter a complaint, was lodged against the respondent for committing an offence punishable under Section 409, Penal Code. He was charged with committing criminal breach of trust in respect of Rs. 28,906-8-3 belonging to the Society between 1-4-1951 and 31-3-1952 and thereby committing an offence punishable under Section 409, Penal Code.

(2.) THE respondent pleaded not guilty to the charge. He denied that he was the Secretary or Treasurer of the Society. He stated that even prior to his so-called appointment) as Secretary on 9-1-1949, the Sangh had opened a personal Khata in his name and that monies of the Sangh were kept with him and withdrawn from him from time to time. He stated that this position continued after 9-1-1952. His contention, therefore, was that the amounts of the Sangh had been deposited with him from time to time, that there was consequently a relationship of debtor and creditor between him and the Sangh and that the monies had not been entrusted to him in his capacity as Secretary of the Sangh. He also denied that he had any dishonest intention to misappropriate the funds of the Society.

(3.) THE defence of the respondent was not accepted by the trying Magistrate, who came to the conclusion that he was guilty of the offence punishable under Section 408, Penal Code. Accordingly he convicted him under this section and sentenc- ed him to one year's rigorous imprisonment and a fine of Rs. 100/ -. Against his conviction and the sentence passed upon him the respondent appealed to the Sessions Court. The learned Additional Sessions Judge, who heard the appeal, accepted his contention that the amounts of the Society had been deposited with him, that consequently there was a relationship of debtor and creditor between the respondent and the Society and that the failure of the respondent to pay to the Society the amounts of the Society lying with him did not constitute any criminal offence. Accordingly he set aside the conviction of and the sentence passed upon the respondent and acquitted him. Against this order of acquittal, the State of Bombay has come in appeal.