- (1.) THE appellant Anwarul Hasan has been convicted under Section 408, Penal Code under two out of three counts and has been sentenced to two years' rigorous imprisonment and a fine of Rs. 100/- under each count, the sentences of imprisonment to run concurrently. He has been acquitted on the third count. The case was tried with the aid of a jury and the jury returned a verdict of guilty on the two counts mentioned above. In this appeal learned counsel has raised the point that the jury was not properly charged and that the verdict was, therefore, vitiated by the irregularity in the charge.
(2.) THERE was a Consumers' Co-operative Stores started in Rifah-i-am, Lucknow, of which Mr. B. L. Kaul, Advocate was the President. The accused Anwarul Hasan was the Honorary Secretary. The shares of this Co-operative Stores were valued at Rs. 10/- each and the amount was payable in a lump sum or in instalments. The charge against the accused was that on 22nd October 1948, he realised the share money from Mr. T. N. Varma and deposited the amount which was short by rs. 4/ -.- On 13th October 1948, he realised another sum from Mr. Darbar Chand, but the deposit was Rs. 5/- short and on 20th November 1948, it was said that he had realised Rs. 50/- from Mr. Radhey Lal but had deposited Rs. 10/- and misappropriated Rs. 40/ -. As he has been acquitted on the third count, it will no longer be necessary to mention the same. The accused worked as Honorary Secretary up to 4th March 1949, when he resigned. After he had left the President Mr. Kaul sent certain allotment cards to the share-holders and Mr. T. N. Varma and Mr. Darbar Chand, when they received their cards, mentioned that the amounts entered in their credit was less than the amount paid by them. The President thereupon sent for the accused and threatened to hand him over to the police unless he made a clean breast of the whole thing. The accused thereupon wrote a letter (Ex. 10) on 12th September 1949, in which he admitted that due to inexperience he had made mistakes in totalling and a sum of Rs. 17/- was due from him, which amount he deposited. On a further enquiry, however, the President found other similar items and on 28th January 1950, he wrote a letter to one Mr. Furkan Ahmad,, an uncle of the accused, that unless he deposited a sum of Rs. 300/- to be adjusted against any short deposits, the case would be handed over to the police. Mr. Furkan Ahmad deposited the sum of rs. 300/-, a part of which has been adjusted and the balance kept in suspense account. On 14th december 1949, however the District Cooperative Officer wrote a letter (Ex. 14) to the District magistrate, who sent the case to the police and the accused was thereupon prosecuted.
(3.) THREE points have been prominently brought forward by the Counsel : firstly, that the charge was such that it was not likely to have been understood by the jujors who had been empanelled; secondly, that the charge with reference to the document (Ex. 23) was not proper and amounted to a misdirection to the Jury; and thirdly, that the document (Ex. 10) being a confession by the accused and obtained from him by threat, it was not admissible in evidence and the learned Sessions Judge should not have referred to it in the charge to the Jury.;