NOGI REDDY Vs. EMPEROR

JUDGEMENT

(1.) This is a petition against the conviction of the petitioner for criminal misappropriation. It was charged and found against the petitioner that he in his capacity as Village Munsiff misappropriated for himself a sum of Rs. 10 collected by him from the complainant in the case. The conviction was confirmed on appeal and the petitioner asks me to interfere in revision.

(2.) It is necessary to go shortly into the facts alleged. The petitioner admits having passed to the complainant a receipt for Rs. 10, Ex. A-1, on 12 January 1928. That receipt is on a sheet of paper and appears between two other receipts, Ex. A, for Rs. 10 dated 3 January 1928, and Ex. A-2, for Rs. 20 on 5 February 1928. Exs. A-1 and A-2 are on a piece of paper which has been passed to the sheet on which A appears. The complainant's case was that he paid all three sums. It is admitted by the petitioner that no credit has been given in his accounts to the complainant for the payment on 12 January 1928. His explanation is that no payment was made on that date, but that he made the entry as the complainant said to him that he had lost the former sheet with the receipt given on 3 January 1928, and so he has given a duplicate. In explanation of the difference of date the petitioner's case was that as the complainant did not remember the date he himself only inserted the year and the month and that the figure 12 is not his. The complainant examined in the witness box stated that the payment of Rs. 10 on 12 January 1928, was entered on the same sheet as the receipt Ex. A, and that a new sheet was begun with the receipt Ex. 42 on 5 February 1928. That is quite obviously not correct. On the other hand, the petitioner has not explained how if the sheet containing A was not with him when he entered A-1, he entered the word "ditto" in Cols. 2 and 4, and why the entry A-1 is not stated therein to be a duplicate receipt. I do not further go into these points as I am of opinion that the appeal will have to be re-heard by the lower Court and I do not wish to hamper its decision.

(3.) I consider that the appeal must be reheard because the lower Court's judgment is vitiated by a confusion of ideas and by a too cursory dismissal of the defence evidence. The defence case was that the complaint which the complainant made to the Tahsildar really was not that he had paid Rs. 10 to the petitioner which has not been credited but that he had paid Rs. 5 in excess of what was due. The petitioner admitted that he had collected a few rupees in excess from the complainant but that excess collection was duly credited and therefore, was not misappropriated. Such small excess collections are very common and almost inevitable during the kist collection season, and so long as they are duly credited no real harm is done. But the lower appellate Court fixes on the admission of excess collection as an admission that the petitioner had dishonestly collected that amount and as a proof, therefore, of embezzlement. That is obviously a wrong view altogether, since the accounts show the excess collection and, therefore, there was nothing dishonest about it. In another part of its judgment the lower appellate Court seems to think that there was not, as a fact any excess collection. I do not follow its argument here. It admits that the actual amount due from the complainant was Rs. 56-3-10. The trial Court puts at Rs. 55, and that the complainant paid Rs. 30 to the petitioner, and then Rs. 29-11-9 on a distraint. So obviously there was excess collection. The Sessions Judge thinks D.W. No. 8 in setting out the story of this excess collection "gives away the appellant completely, and in another passage he speaks of the defence story as being that complainant suspected the petitioner of having misappropriated Rs. 5; but the defence story was that the complainant suspected the petitioner of having collected Rs. 5 in excess. As a matter of fact this excess collection has no real relevancy to the case of the embezzlement of Rs. 10 and the fact that a few rupees were collected in excess and credited in the petitioner's account is no evidence whatever that he collected and misappropriated Rs. 10.