M.V. SURYANARAYANA Vs. THE STATE

JUDGEMENT

(1.) THE Appellant has been convicted under Section 408, Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 5000 - or in default to undergo R.I. for 6 months more. He has also been convicted under Section 477 -A, Indian Penal Code and sentenced to undergo R.I. for one year, both the sentences to run concurrently.

(2.) THE accused in his statement under Section 342, Criminal Procedure Code has given an elaborate version of his defence. His case is that in june 1952, on the application of the Syndicate: Government reallotted 230 bales of Rajnandigaon Mills. One Puranmal Agarwala of Cuttack was purchasing heavy stocks of the Syndicate with the approval of the Government and he was dealing on behalf of a large number of dearer of Cuttack. He came to know of this allotment. With, a view to purchase these 230 bales, he approached the accused with a Bank Draft for Rs. 23,000 - in favour of L.K. Poddar. The accused purchased the Draft from him on payment of Rs. 23,000 - in cash to save delay and to save bank charges. The Bank Draft was sent to L.K. Poddar by registered post with a forwarding letter accompanying it with a request to arrange despatch of one bales, the value of which would be about 2 lakhs of rupees. L.K. Poddar returned the Draft and did not despatch 30 bales of cloth. Sometimes in the month of June, the accused was absent from the head -quarters as he was away at Calcutta and Bombay. Later on (the exact date not given) Puranmal Agarwala intimated him that he had taken back the Draft and this amount of Rs. 23,000 - would be adjusted towards his account. By June he had to his credit and amount of Rs. 29,000 - and odd in the Bank. Puranmal promised to give necessary instructions to the dealers for adjustment. The accused completely lost sight this transaction and took no further action over the matter. By the end of June, 1952, the Syndicate had heavy stocks lying at the Railway Station which they could not release as they had no money and were paying heavy damages. The accused was greatly worried and had completely lost sight of this transaction until the Auditor called upon him to explain in September, 1963 when he submitted his explanation in writing (as per ext. 13) dated 14 -9 -1953.

(3.) THE Appellant admits that he withdrew Rs. 23,000 - in cash from the coffers of the Syndicate for payment towards advance of the price of 230 bales. His defence is that he spent the money by purchase of a Bank Draft from Puranmal and in fact he despatched this Bank Draft to L.K. Poddar by registered post which was returned by the latter. Mr. Kanungo concedes that the Appellant has failed to prove by direct evidence that in fact the Bank Draft had been despatched by registered post to L.K. Poddar. The concession is also justified. Not a single witness has been examined to prove that Rs. 23,000 - was paid in cash to Puranmal and no receipt had been obtained from Puranmal in evidence of such payment in exchange for the Bank Draft. The accused himself filed the certificate (ext. 16) showing payment of advance to L.K. Poddar. It is submitted that this certificate was furnished asunder the practice of the Syndicate every payment must be evidenced by a voucher. The payment was made by the accused and accordingly he furnished the certificate (ext. 16) as a voucher. A receipt could have been obtained from Puranmal to the effect that the Bank Draft was purchased from him for Rs. 23,000 - in cash and this receipt could have been treated as a voucher in the place of ext. 16. It is remarkable to note that in the three documents (exts. 16, 14 and 15), the accused did not mention that the Bank Draft had been purchased and sent to L.K. Poddar. There is therefore, absolutely no document retained in the Syndicate in support of the case that a Bank Draft had been purchased on payment of Rs. 23,000 - in cash. The accused made also no attempt, in course of the trial, either to examine Puranmal or to call for his accounts. Some emphasis was laid by Mr. Kanungo on the fact that Puranmal bad been examined as a witness against the accused in some other criminal case. That might be so; but it was open to the accused to examine himself under Section 342 -A, Criminal Procedure Code. Though no adverse inference can be drawn against him for non -examining himself as a witness, the fact is to be emphasised that evidence which could probabilise his case was never presented to Court.