STATE OF MAHARASHTRA Vs. MARCEL CARVALHE

JUDGEMENT

(1.) This appeal by the leave of the Court is directed against the judgement dated 27th April, 1987, whereby the learned Judicial Magistrate, First Class, Penda, acquitted the respondent therein, from the charge of having committed an offence punishable under section 409 of the Indian Penal Code. The respondent had been working as Superintendent (Eserivae) in the Vasce Court and in the discharge of his duties, he got some bonds executed before him by four accused. The said accused instead of getting bonds with securities, deposited each of them Rs. 500/-. The said accused had been duly tried and convicted was set aside in appeal and the decision observation Appellate Court was confirmed by this Court. After their acquittal, the said accused applied for the refund of the money deposited in Court, but they did not succeed in getting that money back. A complaint was made on their behalf and the learned Judicial Commissioner directed the Judicial Magistrate, First Class, to look into the matter and report to him. The Magistrate, accordingly, held an enquiry and submitted a report, according to which, a total amount of Rs. 4000/- had been received by the respondent from the said accused and, apparently, has been misappropriated by him. This happened some where in the year 1972, and no action apparently was taken for a long period of time, for only in 1984, a criminal complaint was filed against the respondent on the aforesaid misappropriation of the said amount of Rs. 4,000/-.

(2.) The respondent pleaded not guilty to the charge and, ultimately, was acquitted by the impugned judgement dated 27th April, 1987. The learned Magistrate observed that there was no evidence on record to prove that, in the year 1965, a cash book was written as regards the monies received in the Court. He further observed that it, was not known who had the duty to receive the monies and, in any case, what were the duties of the respondent. He also observed that there was no evidence at all that the amount of Rs. 4000/- had been entrusted to the respondent and the whole case of the prosecution was based in a statement made by the accused which was not bearing the signature of the Judge. For these reasons, he acquitted the respondent.

(3.) Now, it is the case of the learned Public Prosecutor that the learned Judge has not applied his mind to the evidence on record, for, otherwise, he could never have recorded a finding that the prosecution has failed to prove that the accused/respondent herein had been entrusted with the aforesaid amount of Rs. 4,000/-. This, otherwise, had been admitted by the respondent himself in an extra-judicial confession and it has been recorded in his statement given before the Magistrate of Vasco, while the latter conducted an enquiry in the matter Mr. Bhobe urged that the circumstance that the said statement was not bearing the signature of the aforesaid Magistrate is irrelevant, for, on one hand, the said statement is duly signed by the Respondent, and on the other the Magistrate Shri Rege had been examined in the Court of the trial and he specifically stated that the respondent has made the aforesaid admission in the course of the enquiry. That apart, the learned Public Prosecution invited our attention to the cross-examination of the witness Gajanan Naik, P.W. 7, made by the respondent. Inter alia, it was put to the said witness that the respondent had handed over the keys of the safe and an envelope containing Rs. 4000/- in the presence of the witness Fideles Pereira. This suggestion by implication shows that it was the case of the respondent himself that he has handed over the envelope with Rs. 4000/- to the said Gajanan, and therefore, it embodies an admission that he had been entrusted with the said amount of money. It was further urged that, once this entrustment has been proved by the prosecution, it was for the respondent to account for the said amount and if he took the stand that he has handed over the said money to Gajanan Naik, the burden of proving it was entirely lying on him. This burden was not discharged, and therefore, according to the learned Prosecutor, the learned Magistrate ought to have convicted the respondent for an offence punishable under section 409 of Indian Penal Code.