RADHA KISHAN Vs. STATE

JUDGEMENT

(1.) THE petitioner Radha Kishan son of Mohan Lal, aged about 38 years, Brahman of Bazar Tahli Sahib, Amritsar, was convicted by Shri M. L. Grover, Magistrate 1st Class, Amritsar, for an offence under S. 408, Indian Penal Code, and was sentenced to undergo rigorous imprisonment of two years and to pay a fine of Rs. 500/ -. In default of payment of fine the accused was ordered to undergo further rigorous imprisonment for six months. The amount of Rs. 14,350/- recovered from the accused was ordered to be paid to Shri K. C. Bahl complainant after the result of the appeal, if any. Radha Kishan then filed an appeal in the Sessions Court, Amritsar, which was dismissed by Shri Jasmer Singh, 2nd Additional Sessions Judge, Amritsar, on 171-1959. Feeling aggrieved agains the decision of the two Courts below Radha Kishan has now come up to this Court under S. 439 of the Code of Criminal Procedure.

(2.) THE prosecution version in brief is as follows. Kishan Chand Bahl P. W. 4 also known as K. C. Bahi is running his business in Majith Mandi, Amritar, as a clearing agent and a deals on behalf of his constituents with the Customs authorities in the matter or import and export. The railway receipts and other documents are delivered by the customers to his firm and after paying the necessry custom dues the goods are got cleared from the Customs Department by his firm. The petitioner was admittedly employed in the aforesaid firm known as Messrs. K. C. Bahl, Land Customs Clearing Agents, on a monthly salary of Rs. 28/- for about 2 1/2 years prior to 9-6-1958. The main duty of the petitioner was to collect monies on behalf of the firm from the customers to receive payments from banks and also to deposit amounts in banks on behalf of the firm. On different occasions, huge amounts used to be entrusted to the petitioner for being deposited in the banks. On 7-6-1958, the firm received an advice from Ranjit Singh P. W. 3 regarding his having remitted Rs. 21,000/- to the Punjab National Bank for payment of custom dues in respect of certain consignments. Shri K. C. Bahl P. W. issued a cheque for Rs. 21,000/- on the Punjab National Bank, Limited, Akali Market, Amritsar, in favour of Piare Lal P. W. This amount was collected by Piare Lal on Monday 9-6-1958, as he could not collect the same on Saturday 7-6-1958. The money was counted by Piare lal in the presence of the petitioner, Rajinder, Sardari Lal and K. C. Bahl and was entrusted to the petitioner with the direction that he should deposit this amount in Account No. 40 in the State Bank of India, and thereafter take the treasury challan to the Customs Office. Two challans--one for Rs. 20,000/- and the other for Rs. 1,000/- -were prepared and handed over to the petitioner along with a sum of Rs. 30/- -which also had to be deposited along with the challans. The petitioner did not reach the Customs Office even till 4-30 p. m. and Om Parkash sent a telephonic message to Shri. K. C. Bahl about this matter. Thereafter an inquiry was made from the State Bank of India and it was found that Rs. 30/- only had been deposited there and the balance amount of Rs. 21,000/- -had not been deposited. First information report was lodged at the police station on the morning of 10-6-1958. The petitioner absconded and had to be declared a proclaimed offender. He surrendered himself in Court on 7-7-1958, and on the next day he gave an information contained in Exhibit P. A. and led the police party to Jandiala where Krishan Mohan P. W. produced Rs. 5,950/ -. On the next day the police went to Rajpura where Raj Mohan produced a sum of Rs. 8,400/ -. These amounts were represented to be part of the embezzled amount of Rs. 21,000/ -. The prosecution examined as many as 15 witnesses including K. C. Bahl, proprietor of the firm. Shri Sardari Lal Gupta, Manager of the firm, Shri Piare Lal, Accountant of the firm, Rajinder, an employee of the firm, and Parkash Chand, Cashier of the State Bank of India, Amritsar. The accused was examined under S. 342 Criminal Procedure Code, and he made a curious statement alleging that he was addicted to gambling and had made huge amounts from the same and that the amounts recovered represented the deposits made by him out of his gambling transactions. The learned trial Magistrate believed the prosecution version and found the accused guilty under S. 408, Indian Penal Code. The learned Additional Sessions Judge, after going very carefully through the whole case, agreed with appreciation of the evidence made by the trial Magistrate and upheld that conviction.

(3.) MR. Moti Ram Aggrawal argued the petitioner's case at length before me, but he was not able to show any reason at all why the evidence of Mr. K. C. Bahl, Piare Lal and Sardari Lal Gupta should not be believed. It was suggested that the dastkhati bahi maintained by the firm had not been produced and that an adverse inference must therefore be raised that the same would not have supported the prosecution case. It is, however, clear the dastkhati bahi was not maintained on the date of the occurrence but came into existence at some later time probably because of the experience gained by the proprietor of the firm. It is common knowledge that the employees of firms are not asked to sign when they are handed over amounts for being deposited in banks or when they are asked to collect amounts from the customers or from the banks. It cannot possibly be expected that the proprietor of the firm would obtain signatures of his Munim when he handed over the amount of Rs 21,000/- to him for deposit in the bank, more especially when it is in evidence that much bigger amounts were on previous occasions handed over to the Munim in similar circumstances for being deposited in banks.