GOPIRAM Vs. STATE

JUDGEMENT

(1.) THE petitioner Gopiram has been convicted by the Sub-Divisional Magistrate, Gwalior under Section 408, Indian Penal Code and sentenced to rigorous imprisonment for six months and a fine of Rs. 50/- in default, rigorous imprisonment for one month. He appealed to the Sessions Judge, Gwalior and his appeal was dismissed. He has now come up in revision to this Court.

(2.) THE material facts are that the applicant Gopiram was an assistant cashier in Gwalior Sugar Company Ltd. , Dabra. The prosecution witness Raghuwar Swaroop Bhatnagar was a cashier in the company. From 27th June 1951 to 30th June 1951 Raghuwar Swaroop Bhatnagar was on leave. During his absence Gopiram worked as cashier and in that capacity he received on 28th June 1951 Rs. 238/15/6 from the Co-operative Stores of the Sugar Company for being credited in the account of the stores. On 30th June 1951 the accounts of the Sugar Company were audited by Mr. Bhattacharya of a firm of Chartered Accountants of Kanpur. The cash balance belonging to the co-operative stores was found to be Rs, 3,971/7/- whereas according to the books of the stores it should have been Rs. 4,210/6/6. The prosecution alleged that the applicant did not deposit the amount of Rs. 238/15/6 in the safe where all moneys belonging to the Gwalior Sugar Company Ltd. , and the co-operative stores was kept, and that he did not produce this amount in the audit and that on the other hand on 30th June 1951 when the cash in the possession of Gopiram was counted during the audit he produced Rs. 49,272/11/- as cash belonging to the Sugar Company which did not include the cash belonging to the co-operative stores and said that he had no other amount in his hands. On these facts Gopiram was tried on a charge of an offence under Section 408, I. P. C. namely that he between 28th June and 30th June 1951 being an assistant cashier in the Gwalior Sugar Company Ltd. , committed criminal breach of trust by misappropriating Rs. 238/15/6 belonging to the Co-operative Stores of the Company. The applicant admitted that he was an assistant cashier in the Sugar Company, that from 28th June 1951 he worked as cashier during the absence of Raghuwar Swaroop Bhatnagar and that on 28th June 1951 he received from the co-operative stores Rs. 238/15/6 for deposit in the coffers of the stores. His defence was that on 28th June 1951 Raghuwar Swaroop Bhatnagar, though he was on leave, came to the office for a short time for some work and that while he was in the office he, that is the accused handed over to Bhatnagar Rs. 239/-, that Bhatnagar returned to him two pice and asked him to put the amount of Rs. 239/- in an iron box which was underneath the office table of Bhatnagar and that accordingly he paid over the amount to Bhatnagar by putting the amount in the iron box. This plea of the accused was rejected by the Courts below.

(3.) MR. Anand learned Counsel for the applicant argued that in this case the prosecution had only proved the fact that the accused received Rs. 238/15/6 on 28th June 1951 on account of the co-operative stores and that at the audit he failed to produce the money, that there was no evidence whatsoever of dishonest misappropriation, and the mere non-production of money or the rejection of the plea of the accused that he paid the amount to Bhatnagar cannot lead to the conclusion that Gopiram dishonestly misappropriated the amount. Mr. Anand relied on - 'robert Stuart Wauchope v. Emperor' AIR 1933 Cal 800 (A ). Learned Counsel for the applicant, also contended that from the evidence of Bhatnagar it was amply clear that he received the amount of Rs. 238/15/6 from the applicant. He proceeded to say that at the audit the entire cash was not counted and that on 6th July 1951 during Spring cleaning an amount of Rs. 500/- was found in an iron coffer in the room where the safe was kept.