EMPEROR Vs. GANPATI SITARAM VAIDYA

JUDGEMENT

(1.) ON the complaint of Ganpat Rao a police challan under Section 408, Penal Code, was filed against Tansingh on 9th June 1942. On 26th October 1942, he was convicted of misappropriating about Rs. 100 and sentenced to imprisonment till the rising of the Court and a fine of RS. 60. The sentence was obviously inadequate but no application for enhancement was made. Tansingh was acquitted on appeal. The learned Sessions Judge has referred the case with the recommendation that the order of acquittal should be set aside and the case retried.

(2.) TANSINGH was the agent of Ganpat Rao, the proprietor of mauza Makhabardi, from 3rd February 1941 to 9th March 1942, and in that capacity he collected village revenue and also incurred certain necessary expenditure. He is alleged to have misappropriated about Rs. 100 out of this money. The learned Magistrate of the appellate Court failed to appreciate what the prosecution case was. Towards the end of his judgment he wrote: I find that the charge as framed by the magistrate on 30th July 1941 covers a period from 4th February 1941 to 11th May 1941 (sic) more than one year for which the accused has been held responsible for the various alleged items and defalcations. This is in contravention of the proviso to Section 222(2), Criminal P.C. Actually the charge, which was framed on 13th July 1942, alleged that between 15th July 1941 and 11th May 1942 the accused had misappropriated certain sums which had been realised between 27th January 1941 and 17th June 1941. The prosecution case was that certain items, which had been collected earlier, were misappropriated by the accused when he compiled false accounts and handed over only the amount shown as due in those false account from which certain credit items had been omitted. These credit items are to be found in the account-books (Exs. P-3 and P-17) but not in the account-books (Exs. P-4 and P-5) which were admittedly prepared by the accused. When the accused was examined in the trial Court he admitted that he had copied the entries of receipts and disbursements shown in Exs. P-4 and P-5 from Ex. P-3 and he could not explain why certain credit items had been omitted. Subsequently, he put in a written statement explaining that he had prepared Exs. P-4 and P-5 partly from memory and partly from enquiries from the tenants--a singularly unconvincing explanation

(3.) AS I stated in Shrri Ram v. Damodhar Cri. Revn. No. 333 of 1943 the provision in the Criminal Procedure Code giving the Provincial Government the right to appeal against an acquittal is deliberately confined to the Provincial Government in order to prevent personal vindictiveness from seeking to call in question a judgment of acquittal by way of appeal, and it was clearly the intention of the Legislature that there should not ordinarily be interference, except in cases where there has been a miscarriage of justice so serious that Provincial Government considers that there ought to be an appeal. In an appeal by the Provincial Government, it is open to this Court to convert an order of acquittal into one of conviction, but this Court will be very reluctant to interfere in revision where that is not possible and 'the only course is to order a re-trial. The Provincial Government in this case apparently did not consider that there was a miscarriage of justice so serious that there ought to be an appeal, and I do not consider that there are such exceptional requirements that it would be proper to order a re-trial after there has been a very full trial.