PANA CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision of Panachand is directed against the judgment of the learned Additional Sessions Judge, Bundi whereby he upheld the conviction passed by the Additional Munsiff Magistrate No. 2, Bundi for an offence under Section 409 I.P.C. The petitioner was convicted for the said offence and sentenced to two years rigorous imprisonment and a fine of Rs. 200/ -. But on appeal looking to the circumstances of the case, the learned Sessions Judge reduced the sentence to 3 months rigorous imprisonment but increased the punishment of fine to Rs. 1,000/ from Rs. 200/ -.

(2.) THE prosecution case was that on 6th of June, 1969 the petitioner was entrusted with an amount 0f Rs. 397.67 for the purpose of disbursement as the pay of the three constables, namely, Devaram. Hamir Lal and Mohan La) who had gone to Bundi. It is alleged that the petitioner went to Bundi with the said amount but he returned to Nenva without disbursing the amount and made an entry in the Roznamcha that he had paid the money to the aforementioned Constables. Hamir Lal when came to Nelwa demanded his salary and the Sub -Inspector told him that his salary had already been paid to him through the petitioner Panachand After having come to know that the petitioner had not paid the salary to the Constables, a case was registered under Section 409 I.P.C. against the petitioner. The petitioner was arrested and at the time of this arrest money 10 the tune of Rs., 240/ - in all was found with the petitioner Petitioner's brother Ram Narain PW 4 with whom Rs. 400/ - is said 10 have to been deposited by the petitioner was present at the time of the arrest and he paid the balance of the amount which was entrusted to the petitioner by paying Rs. 157.67 and thereafter it is said that with the permission of the Superintendent of Police, the pay of the Constables was disbursed. These facts are not in dispute that the petitioner was entrusted with the money to be paid to the Constables at Bundi and that he did not make the payment though he had gone there for that purpose. It is also not disputed that the entry Ex P 8 was made by the petitioner that he had paid the money to the Constables at Bundi. It is in the evidence of Hamir Lal that when he returned to Bundi, he demanded his salary from the Sub Inspector. The petitioner was present at that time and the petitioner told him that the salary will be given to him after he had brought the revenue stamp to be affixed to the receipt.

(3.) THE 1earned counsel appearing on behalf of the petitioner urged that in this case the ingredients of Section 403 I.P.C. to make out a case of criminal breach of trust have not been proved by the prosecution. He contended that it was the duty of the prosecution to prove that the money entrusted to the petitioner was dishonestly misappropriated or converted to his own use. In the present case according to Mr. Dave who appears on behalf of the petitioner, the element of misappropriation is conspicuously missing. The accused petitioner had deposited the amount entrusted to him with his brother who had gone with the petitioner to Bundi. It was further argued that from Bundi the petitioner proceeded to Patan tc fetch his family members and, therefore, for safe custody he entrusted the amount to his brother which shows that he had no intention to misappropriate or convert the amount to his own use. As regards the entry made by the petitioner in the Roznamcha about the payment having been made to the Constables, his argument is that this entry though wrong, was made by him with a view to justify his TA and DA