MOOL CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner has concurrently been convicted by the lower Courts under Section 409 of the Indian Penal Code, for having misappropriated a sum of Rs. 21,417.75, in his capacity as a public servant, i.e., while working as a Cashier of the Municipal Committee. Fazilka, District, Ferozepur. The break up of the misappropriated amount which was alleged to have been entrusted to him on different dates is as follows :

(2.) THE short submission of Mr. Ghai, the learned Senior Advocate for the petitioner is that neither the prosecution has been able to prove that the above noted amounts were entrusted with the petitioner on the dates referred to above nor the said entrustments were in the capacity of the petitioner as a Cashier. What the learned counsel is urging is that as a matter of fact on all those relevant dates, the petitioner was working only as an Accounts Clerk in that Municipal Committee and was not performing the duties of the Cashier and thus was not entitled to receive the said amounts.

(3.) IT is no doubt true that it stands established on record that petitioner did make some entries with regard to the receipt of certain amounts due to the Municipal Committee and thereby may be presumed to have been acting as a Cashier at the time of making those entries yet it is established nowhere that the above noted amounts were either received by the petitioner or he made entries qua any of those. The prosecution has nowhere proved as to who paid those amounts to the petitioner and where did he make any entry qua those amounts. On the contrary, there is a clear cut evidence of PW 15 Bal Kishan to the effect that he was employed as a Cashier in that Municipal Committee during all the period to which the above noted amounts relate except from 8th March, 1975 to 12th March, 1975, when he was on leave, and the petitioner acted as a Cashier in his place. He has further deposed that on return from leave on 13th March, 1975, he found that the petitioner had, as a matter of fact, not made any entry in the Cash Book. for that period, i.e., 8th March, 1975 to 12th March, 1975, and he, after bringing this fact to the notice of the Secretary of the Municipal Committee, made those entries as directed by the former. So, it is stated by him in no uncertain terms that even the entries in the cash book for the period 8th March, 1975 to 12th March, 1975. One of the alleged embezzled amounts relates to this date, i.e., 12th March, 1975 were made by him. If that be so, as it is, then it is difficult to imagine that he made this entry either without getting the amount in question, i.e., Rs. 8,481.75, or atleast after satisfying himself that the said amount had duly been paid or accounted for. For the remaining amounts there is no such evidence even. I am, therefore, satisfied that on the relevant dates referred to in the chargesheet, the petitioner was neither working as a Cashier of the Municipal Committee nor is there any evidence of entrustment of those amounts to him. Merely because the relevant entries in the cash book are in his hand in case it is to be so accepted for argument's sake does not establish his criminality because in those days, as per the stand of the prosecution itself, he was working as an Accounts Clerk, and was, therefore, duty-found to make those entries in the cash book. He was not the Cashier of the Municipal Committee, and was, thus not supposed to handle the cash. On the contrary, as has been pointed out above, it was Bal Kishan PW 1.5 who was working as a Cashier in the Municipal Committee.