KRISHNA DAYAL Vs. EMPEROR

JUDGEMENT

(1.) Krishna Dayal, the applicant, has come before me against an order of the learned Sessions Judge of Cawnpore, by which he affirmed the judgment of a Magistrate of the first class, who held him guilty under Section 409, Indian Penal Code, and sentenced, him to undergo rigorous imprisonment for a period of eighteen months and to pay a fine of Rs. 300 and in default, to a further period of six months rigorous imprisonment. There was a further order that out of the fine realized a sum of Rs. 250 should be paid to the Post Master General. The case is a complicated, one and covers a vast field. It is, besides, a case of a novel character. Its complexity and novelty have presented considerable difficulty. I have, however, had the advantage of hearing the learned Counsel for the accused and the learned Government Advocate, assisted by an official of the Department concerned, at great length. I have with their assistance gone into the whole record myself, inasmuch as the main contention of the learned Counsel for the applicant was that the learned Sessions Judge has relied upon inadmissible evidence, placed the burden of proof, in several material particulars, upon the accused and has drawn wrong inferences from the admitted and proved facts.

(2.) The learned Counsel for the applicant invited my attention to a number of authorities of this Court, as also of the other High Courts, in support of his contention. To those authorities I shall advert at the proper time and place. The accused worked as a clerk in the Head Post Office, Cawnpore, from February 1941 to January 1942 during which period he performed the duties of the Broadcasting Receiver Licence Clerk and issued and renewed licences. The charge against him was that, in this capacity he embezzled the amount of surcharge of Rs. 20 paid by each of the following licensees: (1) Jagdish Prasad Gupta, who made the payment on 80 May 1941, (2) Govind Ram on 28 June 1941, (3) Nand Lal Misra on 13th August 1941, (4) Syed Nawab Ali on 20 August 1941, (5) Ganpat Prasad Verma on 2 January, 1942. The case of the prosecution, so far as Govind Ram is concerned, has failed and it might be dismissed from consideration. According to Sub-rule (3) of Rule 38 of the Posts and Telegraph Manual, vol. VI, every first class head office is, at least should be, inspected twice a year by the Supervising Inspector. There are some other inspections provided by the Post Master. In order to appreciate the case in all its ramifications the procedure provided by the rules of the Department might be followed. A licence is secured on payment of Rs. 10. This licence is renewed every year on a further payment of the same amount. In default o? a proper application within time for the renewal, the Post Master General of Lucknow has several options open to him. He may either start a prosecution or impose a penalty of Rs. 20 or grant exemption. There is a further course open to Mm, which will play a very important part and that is that, even after the payment has been made, he can grant a remission or refund. According to the evidence of Raghubir Sahai, P.W. 3, and a clerk in the office of the Post Master General, Lucknow, which is to be found at page 10 of the paper book, the practice is like this. I shall allow him to mention it in his own words: A register for entering recovery of surcharge money from B.R. licensees is maintained in my office. A note is made in the register as soon as the Post Master General orders levy of surcharge. The order is sent to the Post Master concerned. After the surcharge has been realized by the Post Office intimation is sent to my office and relevant entries are made in the register accordingly. A report is sent by my office every month to the Director General, showing recoveries of surcharge money. If the surcharge is cancelled by the Post Master General, the entry is scored out and a reference to the Post Master General's order is entered against the entry in the register. Cancellation is duly intimated to the Post Master concerned.

(3.) This is what he has said in his examination-in-chief and this indicates the procedure and the various places where the registers and other necessary papers are kept. In his cross-examination he says that a separate file of each case of non- renewal in which surcharge is levied, is "compiled in the Post Master General's office..." He then gives the relevant numbers: The file numbers in the case in dispute are: and claims to have made this statement on the basis of the surcharge register maintained under the orders of the Post Master General. This witness and Qazi Hikmat Husain, the inspector, P.W. 1, make out the following: (a) The Cawnpore office sends intimation to Lucknow both as regards the realization of the surcharge and the remission or the refund, (b) On the basis of this, a surcharge list is maintained at Lucknow. (c) A note is made in the register as soon as the Post Master General orders the levy of surcharge, and an intimation is sent, (d) If the surcharge is cancelled, there is an entry to that effect.