CHAIN BHARTI Vs. STATE

JUDGEMENT

(1.) Generally this Court does not interfere in the order of learned Sessions Judge, remanding the case u/s 398 Crimial P.C. for further enquiry into the matter. But the present case is such in which it appears that the exercise of the powers u/s 397 Crimial P.C. by the learned Sessions Judge, does not appear to be proper and the learned Sessions Judge, in exercise of the aforesaid powers, has not acted properly,

(2.) The dispute is in respect of payment of two amounts of Rs. 1,000.00 and the other sum of Rs. 2000/. The only dispute is whether the aforesaid amounts were paid on Feb. 8, 1983 and Feb. 10, 1983 or Feb. 8, 1984 or Feb. 10, 1914. It is not the case of the plaintiff that he has made the payment twice, one in the month of Feb. 1983 and the other in the month of Feb. 1984. The plaintiff's cases through out was that he had made the payment on Feb. 8, 1983 and Feb. 10, 1983 of a sum of Rs. 1,000.00 and Rs. 2,000.00 respectively, but the accused-petitioner kept the amount himself and it was only on Feb. 8, 1984 and Feb. 10, 1984 that the amount was deposited in the record and thus, thereby he has committed temporary embezzlement of the amount. There can be no dispute that under the explanation-I of section 403 IPC. a dishonest misappropriation for a time only is a mis-appropriation within the meaning of this section. But if the petitioner had, in fact, received the aforesaid two amounts in the month of Feb. 1984 and not in Feb. 1983 and was only the slip of the pen that instead of 1984 year 1983 was mentioned in the two receipts, it can hardly be said that there is any case of temporary embezzlement, as stated by the complainant.

(3.) The learned counsel for the petitioner has shown to this court two documents issued by the Barmer Central Co-operative Bank Ltd., who issued the receipts which are given to the depositor at the time the amount is deposited and it tan be said from a perusal that so far as receipt book No. 08501 is concerned, it contained receipts upto 08600. It was given to Rakhi Gram Sewa Sahakari Samiti Ltd. on Feb. 6, 1984. So far as receipt book containing receipt No. 14601 to 14700 is concerned, it was given to the Rakhi Gram Sewa Sahkari Samiti Ltd. on Dec. 15, 1983. Therefore, if that be so, there is no question of the petitioner having received the amount in the month of Feb. 1983 or having given the receipt in Feb. 1983. It may be stated that the Dy. S.P. who had investigated the case had come to the conclusion that it was just a slip of pen that instead of 1983 the year 1984 was written.