Decided on April 23,1953



Somasundaram, J. - (1.) This petition is by the accused who has been convicted (or an offence under Section 408, I. P. C., and sentenced to rigorous imprisonment for one year and a fine Rs. 200.
(2.) The petitioner was a bill collector in the Tiruchirapalli Municipality and as such he was charged with having collected taxes to the tune of Rs. 1935-4-10 and having misappropriated the same. He was charged under Section 408, I. P. C. and convicted of that offence. There can be no doubt that the bill collector is a public servant within the meaning of Section 21, I. P. C. as is clear from Section 358 of the District Municipalities Act. The Additional First Class Magistrate should undoubtedly have framed a charge under Section 409, I. P. C. and convicted him. However the fact that he framed charge for a lesser offence cannot be said to have caused prejudice to the accused as he only had the benefit of defending on a minor offence. But the point that is taken before me by Mr. Sitarama Aiyar is that the petitioner being a public servant must have been charged only for an offence under Section 5(l)(c) of Act II of 1947. This is an offence which is created by Act II of 1947, the object of it being to make more effective provision for prevention of bribery and corruption.
(3.) No doubt Section 5 of Act II of 1947 defined what misconduct by a public servant is and in that misconduct, in addition to the receipt of bribes, it is provided by clause (c) that any dishonest or fraudulent misappropriation or otherwise conversion by a public servant for his own use of any property entrusted to him, he will be guilty of misconduct. The learned counsel contends that this provision repeals 'pro tanto' Section 409, I. P. C. He relies on a decision of the High Court of East Punjab reported in --the State v. Gurcharan Singh', (A). At p. 93 the learned Judges state as follows : "I would therefore adhere to my previous decision and hold again that as long as Section 5 of Act II of 1947 remains in force the provisions of Section 409, I. P. C. so far as they concern offences by public servant are 'pro tanto' repealed by Section 5(l)(c) of Act II of 1947." 'This judgment has been referred to and dissented from by Ramaswami J. in -' Satyanarayana-murthi; In re', (B). With great respect to the learned Judges of the Punjab High Court I do not agree with the reasons-given by them. I agree with Ramaswami J. on this point;

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