Takru, J. - (1.) THIS appeal by the State is directed against an order of acquittal passed by the learned 2nd Asstt. Sessions Judge of Aligarh and arises under the following circumstances: Bankey Behari, the Respondent, was employed as an Extra Departmental Stamp Vendor at the Head Post Office, Aligarh, at the material time on a salary of Rs. 40/ - per month. As a Stamp Vendor, his duty was to sell the postage stamps which were entrusted to him for that purpose. The stamps were sold during the usual office hours and at the close of the day the unsold stamps as well as the cash received on account of the stamps sold during the course of day were kept in two boxes supplied by the Post Office which bad to be locked and placed in the custody of the Treasurer of the Post Office. Under the rules the stamps as well as the cash in the hands of the Respondent were checked by the Post Master Aligarh from time to time and the case for the prosecution is that on 25 -6 -56, the Post Master Aligarh asked the Respondent to get the stamps in his possession the last issue of which worth Rs. 450/ - was made to him on 6 -7 -55 - -checked before leaving the Post Office. The Respondent did not get the checking done and instead left the Post Office without the knowledge of the Post Master. When the latter noticed this fact he asked one of the Treasurers to inform the Respondent to get the said stamps and cash checked on the following day. Next day at 8 a.m. the Respondent appeared before the Post Master and when asked to get the stamps and cash checked, replied that he had forgotten the key at home and on that pretext left that place. A few minutes later he returned and told the Post Master that he could not bring the key as it had been kept in a bush shirt which his brother had taken away. Thereafter he went away to look for his brother and did not return to the Post Office at noon, the time at which his duty was supposed to commence. The Post Master got suspicious and informed the superintendent of Post Offices on the telephone about the matter and also sent him a written report to that effect. The Superintendent of Post Offices sent instructions to the Post Master on the telephone and in compliance with them the latter sent for the two boxes of the Respondent referred to above from the Treasurer, opened them in the presence of the two respectable employees of the Post Office and noted down their contents in two lists which were duly attested by those witnesses. According to these lists the two boxes contained stamps and cash worth Rs. 16/2/6 only. There was thus a shortage of Rs. 433/3/6. Information of the shortage was sent to the Station Officer Incharge, Police Station Banna Devi and a case Under Section 409 IPC was registered against the Respondent. Surendra Singh, S.I. (PW 7) took up the investigation of the case and after completing it, submitted a charge sheet against the Respondent and the latter was in due course committed to the court of Sessions where he was tried with the result already stated in the opening paragraph of this judgment.
(2.) THE Respondent while admitting that he was an Extra Departmental Stamp Vendor during the relevant period denied that the Post Master had asked him to get the stamps in his custody checked or that he had gone to the Post Office on 26 -6 -56. According to him, he was on leave from 28 -6 -56 and it was only on his return from that leave that he came to learn about the case instituted against him whereupon he surrendered himself in Court. He pleaded ignorance as to whether he received the sum of Rs. 40/ - per month as salary or commission. He did not examine any witness in his defence. The prosecution led oral and documentary evidence in support of its case. The trial court after examining that evidence recorded the following findings: (1) That the Respondent was a public servant within the meaning of Section 21, IPC, (2) That the advance of the postal stamps was an entrustment to the Respondent and not a loan as contended for on his behalf. (3) that the Respondent misappropriated cash and postage stamps worth Rs. 433/3/6; but holding (a) that the Government was fully secured through the execution of the Security Bond and no permanent loss could be caused by defalcation and (b) that if any defalcation took place the Government could be compensated fully that court was of the opinion that 'the question of wrongful gain to the accused is not free from doubt'. It accordingly gave the benefit of that doubt to the Respondent and acquitted him.
(3.) MR . Bhatt learned Counsel for the State, contended that on the first three findings of the trial court, as reproduced above, the fact that the Respondent had sufficient deposit to his credit with the government whereby the loss could be imbursed was neither relevant nor conclusive of the absence of dishonest intention of the accused. Incur opinion the view taken by the court below on this part of the prosecution case, is, in view of the First Explanation to Section 403 IPC, so patently erroneous that it cannot be sustained. Indeed even Mr. P.C. Chaturvecli, the learned Counsel for the Respondent, had to concede with his usual frankness, that he could not support the order of acquittal on that ground. He however sought to support it by challenging the correctness of the finding of the court below on the question of entrustment. According to him, on a correct appreciation of the evidence on record and the law applicable thereto, the transaction in question did not amount to an entrustment but was in substance and effect a loan, with the result that the said transaction did not fall within the purview of Section 409 IPC and hence was not an offence under that section. This contention we shall proceed forthwith to examine.;