STATE OF ORISSA Vs. BIRA KISHORE NAIK

JUDGEMENT

(1.) THE appeal is against an order of acquittal of respondent Bira Kishore Naik (accused) who was tried under Sections 409, 467, and 477-A, I. P. C. The learned government Advocate does met press the appeal under Sections 467 and 477-A, i. P. C. The appeal is only confined to the charge under Section 409, I. P. C.

(2.) THE prosecution case is that Somanath Naik, the father of the accused, was appointed Extra Departmental Agent of the Paramanandapur Branch Post Office in the district of Sambalpur. The accused was looking after the official duties of the father fully. On 9-4-1959 he received Rs. 609/- from Jogendra Sahu (P. W. 2) for remission by money-order and granted the receipt (Ex. 3) in his own hand-writing and signature. The amount was not entered in any of the registers kept in the post office and the money-order was not remitted. The Inspector of Post Offices (P. W. 1) detected this fact more than a year after. When he brought the matter to the notice of the accused, the latter deposited the amount on 17. 9. 1960 and the deficit was made good. The accused pleaded innocence.

(3.) THE learned Assistant Sessions Judge found that the accused was discharging the duties of the Extra Departmental Agent of the Branch Post Office on behalf of his father, but he was doing so without any recognition or appointment by the postal Department. The accused received Rs. 609/- from P. W. 2 on 9-4-1959 and granted postal receipt (Ex. 3 ). He did not enter the amount in any of the postal registers and did not send the money-order to the payee. He deposited Rs. 1370. 25 np. on 17-9-1960 and this deposit included the sum of Rs. 609/. Though on facts the entire prosecution case was accepted, the learned Assistant Sessions judge acquitted the accused of the charge under Section 409, I. P. C. as he was not a public servant. The findings of fact are not disputed by Mr. Rao.