- (1.) These two are appeals by special leave against a common judgment of the High Court of Punjab in its revisional jurisdiction. The appellant who is the same in both was convicted by the Magistrate, First Class, Hoshiarpur at two separate trials, one in respect of a charge under section 420 and the other in respect of a charge under section 409 of the Indian Penal Code. The convictions were confirmed by the Session Judge on appeal and by the High Court in revisions. The charges relate to connected matters and the evidence, though separately recorded, was substantially the same. It is, therefore, convenient to deal with the two appeals by a common judgment as the High Court did.
(2.) The appellant, Bhagat Ram, was the Civil Nazir in the office of the Senior Subordinate Judge, Hoshiarpur. The main charge against him was that in his capacity as a public servant, he committed criminal breach of trust in respect of a sum of Rs.3,496/5/- of Government money between the 1st December, and the 18h December, 1948. The other charge was that in order to find the money to cover up the embezzlement, he tried to raise a sum of Rs. 3,350/- by way of loan from one Seth Brij Lal, misrepresenting to him that it was required by the then Subordinate Judge and that by such representation he dishonestly induced the said Seth Brij Lal to issue a cheque for the sum of Rs. 3,350/-. At the material period of time Shri K. S. Gambhir was the Senior Subordinate Judge of Hoshiarpur in the place of the regular Senior Subordinate Judge, Shri Bhandari, who was officiating as the District and Sessions Judge, from the 13th November to the 16th December, 1948. Under arrangement made by the High Court, the Senior Subordinate Judge of the place was vested with certain administrative duties, one of such being that he was to draw and disburse month by month the salaries of the Civil Courts establishments at Hoshiarpur and of three other outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) Garhshankar. The normal procedure for the disbursement of the salaries was to prepare the salary bill of all the four Tahsils and present it to the Treasury on or about the first of the month, the salary for the Sadar Tahsil of Hoshiarpur being drawn in cash and the salaries for the three other Tahsils being draw by means of cash orders authorising payment locally. The embezzlement in question relates to the salary bill for the month of November, 1948. Departing from the pre-existing practice, the said salary bill was drawn entirely in cash for all the four Tahsils. This was done under the authorisation of the Subordinate Judge, Shri Gambhir, but the actual cash amounting to Rs. 5,576/6/- was received from the Treasury by the appellant on the 4th December, 1948. Out of this amount a sum of Rs. 811/1/- for Hoshiarpur Sadar and a sum of Rs. 1,420 for Garhshankar Tahsil were in fact disbursed within a few days. The salaries of Una and Dasuya, totaling an amount of Rs. 3,347/5- were not disbursed. On the 14th December, a telegram was received by the District Judge, Hoshiarpur, from the Subordinate Judge, Una, complaining that the civil establishment pay of his Tahsil was not so far received and requesting him to arrange for the same. It is the prosecution case that the appellant had misappropriated the amount and that on receipt of the above telegram by the District Judge, he realised the urgency of finding the money somehow and that he accordingly made attempts to raise the money by way of a loan. It is in evidence that on the 16th December, he approached two persons, by name Hakim Rai and Lala Shiv Dayal for loans, representing to them that they were required for the subordinate Judge. Failing in these attempts he approached one Seth Brij Lal for the amount of Rs. 3,350/- also making the same representation. He showed them a 'Ruqqa' from the Subordinate Judge purporting to authorise him to raise the money. On the morning of the 17th Seth Brijlal gave the appellant a bearer cheque on the local Imperial Bank drawn in favour of Shri K. S. Gambhir, Subordinate Judge, by name. The cheque was presented by the appellant on the Bank that very day at 10 a. m. But before the cash was paid to the appellant by the Bank, Seth Brij Lal happened to have gone towards the Court premises and to have met the Subordinate Judge. He informed him that he had issued the cheque to accommodate him. The Subordinate Judge appeared surprised at it and repudiated the same. Consequently Seth Brij Lal rushed up to the Bank and stopped payment, got back the cheque from the bank authorities, and informed the Subordinate Judge. The Subordinate Judge thereafter took a statement from him. This statement and the returned cheque were duly sent up to the Police for investigation. Suspicion having been thereby aroused against the appellant as regards the handling of the moneys drawn by him, the relevant accounts were immediately checked and it was discovered that the salaries of Una and Dasuya establishment were not disbursed. Accordingly, two complaints, one in respect of a charge under section 420 and the other in respect of a charge under section 409 of the Indian Penal Code were filed against the appellant, the first on the 17th December at 8-30 p.m. and the second on the 18th December. It would appear also that the appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for leave for a month. He was not found for some days and was actually arrested on the 3rd January, 1949. Mean-while the entire amount was deposited by the brother of the appellant on the 21st of December, 1948. It may also be mentioned that the Subordinate Judge, Shri Gambhir, contacted the two persons, Shiv Dayal and Hakim Rai, whom the appellant had approached for raising the loan, and took their statements on the 19th December. These statements also were forwarded to the Police.
(3.) The appellant substantially admits all the material facts above stated. His defence is that it was the Subordinate Judge, Shri Gambhir, that misappropriated the amount and that it was at his request and under his specific authority that he made the attempts to raise the sum of Rs. 3,350 on the 16th and the 17th of December, from the three persons above mentioned. In support of this defence he has examined a witness and produced a 'Ruqqa'. Ex. D. A dated the 4th December, 1948, purporting to bear the signature in English of Shri K. S. Ghambir acknowledging receipt of "a sum of Rs. 3,500/- out of the pay account of the processing-serving establishment from the Civil Nazir for a day". The said 'Ruqqa' bears an endorsement of repayment of Rs. 150/- on the 8th December, so that, it is, if true, a receipt for the sum of Rs. 3,350 said to have been misappropriated. The appellant relies on this in respect of the charge under section 409 of the Indian Penal Code. So far as the charge under section 420 of the Indian Penal Code is concerned, it is his defence that the subordinate Judge gave him on the 16th December another 'Ruqqa', signed by him and specifically authorising him to raise an amount of Rs. 3,350/- by way of loan on his behalf locally and that he made use of it in his attempts to raise the loan for him. The 'Ruqqa; has not been produced. But it is his case that it was returned to the Subordinate Judge after being shown to Brij Lal. He relies on the evidence of the very witnesses whom he is said to have approached for the loan in support of this defence. The trial court as well as the appellate Court have disbelieved the defence and convicted him of both the charges and sentenced him to imprisonment as well as fine. The High court on revision confirmed the conviction but considered the fines uncalled for and confined the sentences to the imprisonment awarded. It may be mentioned that after we heard the arguments fully on these appeals, we have been informed that the appellant has served out the sentences of imprisonment. But we have been pressed to express our view on the merits of the case inasmuch as the conviction has affected to official employment of the appellant and has caused him serious loss and dislocation in his life.;