JAGADAMBA PRASAD Vs. STATE

JUDGEMENT

(1.) THE applicant Jagadamba Prasad was convicted by the Additional City Magistrate, Lashkar under Section 409 I. P. C. and sentenced to six months rigorous imprisonment. His conviction was confirmed by the Additional Sessions Judge of Gwalior on appeal. The sentence of six months rigorous imprisonment was however, reduced by the learned Sessions Judge to one already undergone by the accused. The applicant has now come up in revision to this Court.

(2.) THE prosecution case was that in 1949 the applicant was a cashier in Scindia State Railways and that in that capacity he was entrusted with the duty of withdrawing for disbursements and of crediting various amounts in the treasury and to maintain accounts thereof. Some time in September 1949, the General Manager of the Railways Guha came to know that several amounts had, not been properly adjusted and appropriated in the accounts office. He, therefore, directed the Deputy Manager Mr. Kawada P. W. 3 to check the accounts and accordingly Mr. Ka-wade was to check the accounts on 26-9-1949 which was a Monday. At the close of the day on 24-9-1949 Harimohan P. W. 14, a pay clerk in the accounts office kept in his safe some amount which was in his possession. The applicant Jagadamba Prasad kept some money in a small cash box instead of in a safe. Harimohan and the applicant used to work in one and the same room and their safes and cash boxes were also in the same room, While leaving the office on the evening of 24-9-1949 Harimohan locked the room where the safes and cash box had been kept. He affixed to the lock a signed label. Both Harimohan and Jagadamba Prasad had key each of the lock. On 26-9-1949 Harimohan had to proceed on Shivpuri line for payment of salaries to the railway staff. He, therefore, went to the office in the morning and when the office was opened by the Chaprasi, he found that the lock hearing his signed label was missing and the cash room was open. On entering the room Harimohan found in fact the cash kept by him in his safe. But he did not find the small cash box which was in the charge of the applicant. Harimohan then made attempts to inform his superior officers of what he had seen. He also gave information about the incident to the railway staff whom he met at Jiwaji Ganj Station, while he was going to Shivpuri. Accordingly Gajanan, a clerk of the accounts section P. W. 4 went to the house of the applicant and informed him that his cash box was missing. The applicant came to the office at the usual time on 26-91949. Mr. Kawade, Deputy General Manager also came for checking the accounts. According to the account kept by the applicant a sum of Rs. 17,211/10/- should have been with him on 26-9-1949. When Mr. Kawade questioned the applicant, he admitted this amount as the "cash in hand" and said that on 24-9-1949 he had kept this amount in a small cash box and that the cash box was missing. Mr. Kawade then addressed a letter Ex. P. 1 to the Sub-Inspector Police of the Scindia State saying that an iron box containing about Rs. 17,000 was missing from the cash office of the Railways. The amount of Rs. 17,211, 10/-Included unpaid wages, deductions from the salaries of the members : of the stall on account of house-rent, sanitation, etc. and the proceeds of the sale of Certain stores amounting to some thousands which the applicant had received from the Stores Department. This amount had been sent by the Store, Department to the applicant in several hundred rupees notes, the numbers of which had been noted in the Stores Department. Immediately after seeding the letter Ex. P, 1, Mr. Kawade contact d the Stores Department and noted the numbers of these hundred rupee notes in the presence of the applicant. A list of these notes was prepared and on 27-9-1949 Mr. Kawade forwarded a typed list of the numbers of the notes to the police with a covering letter Ex. P. 3. During the course of investigation the police recovered at the instance of Hint Khalasi a lock and some currency notes of small denominations. On 14-10-1949 the accused was taken by the police first to Mathura and then to Lalitpur. It is said that on reaching Lalitpur, the applicant recovered from his brother-in-law Raghunath Prasad thirty-seven notes of hundred rupee each. A memo Ex. P. 4 of the recovery of these notes was prepared. The numbers of the recovered notes tallied with some hundred rupee notes by which the amount of the proceeds of the sale of the stores had been remitted by the stores Department to the applicant.

(3.) JAGADAMBA Prasad was first tried along with Hira, Khalasi and one Bhagirath on a charge under Section 379, I. P. C. Bhagirath was discharged by the trying Magistrate. The applicant and Hira were, however, convicted under Section 380 I. P. C. In appeal the learned Sessions Judge of Gwalior acquitted Hira and upheld the conviction of Jagadamba Prasad. The applicant then came up in revision to this Court. This Court set aside the conviction of Jagadamba Prasad under Section 380 I, P. C. and ordered his retrial on a charge under Section 409 I. P. C. , on the view that as Jagadamba Prasad was a cashier and was entrusted with certain moneys, then if he appropriated the money to his own use, then he could not be said to have committed any theft and that he could only be charged under Section 409 I. P. C. for the act of misappropriation. Jagadamba Prasad was accordingly retried and convicted under Section 409 I. P. C.