C G LLOYD Vs. EMPEROR

JUDGEMENT

(1.) This is a rule granted by my learned brother M.C. Ghose, J. and myself calling upon the Deputy Commissioner of Dibrugarh to show cause why the order dismissing the appeal of the petitioner against his conviction and sentence should not be set aside. The petitioner is an employee of the Telegraphs-Department in Assam. He was convicted on 5 November 1931 by the Extra Assistant Commissioner on charges under Section 409, I.P.C. The charges were three in number and related to sums of money amounting in all to Rs. 413-4-0. The trying Court convicted and sentenced the petitioner in respect of the first charge to six months rigorous imprisonment and to a fine of Rs. 413-4-0 or in default to a further term of imprisonment for two months, the fine, if realised, to be paid to the telegraphs department as compensation. In respect of the other two charges the petitioner was convicted and sentenced to six months rigorous imprisonment on each of them, the sentences to run concurrently with the sentence of imprisonment imposed in respect of the first charge. The petitioner appealed to the Sessions Judge of the Assam Valley Districts and on 1 February 1932 his appeal was dismissed. He obtained this Rule on 14 March 1932. The Rule was granted upon six out of ten grounds set out in the petition. The grounds upon which we propose to dispose of the rule are those which are concerned with the admissibility of certain evidence tendered by the prosecution. It was the case for the prosecution that the petitioner in his capacity of Sub- divisional Officer, Telegraphs, Dibrugarh Subdivision was in charge of Government Funds drawn on imprest account for various purposes, among which was the payment of wages to coolies employed from time to time on casual labour in connexion with repairs to telegraph lines in the Dibrugarh Subdivision.

(2.) It is stated by the prosecution that with respect to the three sums with which the charges are concerned the petitioner, instead of paying those sums to the coolies as wages, converted them to his own use, and it is also the case for the prosecution that the muster rolls, which from the record of the payments which the petitioner states he made, are fictitious documents in the sense that no payment was made to the persons whose names appear on the muster rolls or to any one. The prosecution called witnesses and produced documents to prove that the petitioner did not in fact make any of the payments appearing in the muster rolls, and that circumstances showed that the story that he had made such payments was not false but impossible. In addition to the evidence relating to the sums of money which formed the subject-matter of the three charges the prosecution called evidence in respect of other payments which, they alleged, the petitioner falsely claimed to have made, whereas in fact there had been no such payments, the petitioner having applied the sums in question to his own use. It appears that in addition to the three muster rolls with which we are concerned, and which related to the charges on which the petitioner was convicted, 14 other muster rolls were tendered and admitted in evidence and the circumstances with regard to the payments shown therein were investigated in the case at any rate of a large number of them. The petitioner contended before the learned Sessions Judge that the Magistrate had wrongly admitted the evidence concerning the payments and muster rolls other than the payments which were the subject-matter of the charges and the muster rolls supporting them.

(3.) The learned Sessions Judge has come to the conclusion that in this respect the petitioner's contention is well founded, and that under the Evidence Act the evidence to which the petitioner takes exception is not admissible. In the circumstances of the case we have first to consider whether the learned Sessions. Judge was right in the view he took, because if we were of opinion that the evidence was admissible we should not have to consider the question of discharging or of making absolute the rule on any of the grounds connected with that evidence. We have come to the conclusion after hearing learned Counsel for the petitioner and the learned Advocate General on behalf of the Crown, that the Sessions Judge was right in the view he took, and that the evidence should have been rejected by the trying Magistrate. The section of the Evidence Act under which the Crown" seeks to justify the admission of the evidence is Section 15. In our opinion, Section 15 has no application to the circumstances of the case. The act alleged was misappropriation of public money, and if the prosecution story was true that the petitioner had applied the money for his own purposes and had endeavoured to conceal his dishonesty by fabrication of false muster rolls, no question arose whether his act was an intentional or accidental act. Moreover it was common ground that if the petitioner had done what he was alleged to have done he must have done it with full knowledge of the nature of his action and with dishonest intention. Various cases were brought to our notice where the conduct alleged and proved against the accused was susceptible of more than one interpretation.