- (1.) THIS is a criminal revision against the judgment of the learned Sessions Judge, Bharatpur confirming the conviction and sentence passed by the learned Munsiff-Magistrate, Bayana convicting the accused-petitioner under Sections 409, 406 and 471, IPC and sentencing him for one year's rigorous imprisonment and a fine of Rs. 400/- in each court and in default of payment of fine to undergo rigorous imprisonment for three years for each offence.
(2.) THE prosecution case, briefly stated, is that a complaint was filed by one Ram Swaroop, SDI, Panchayat Samiti, Roopwas in the Court of Judicial Magistrate, Bayana, on 18/4/1972, alleging that the petitioner while officiating as Headmaster of Primary School of Roopwas failed to send the amount of fees of annual examination received by him on 20/4/1973. THE Block Develop-ment Officer, Shri Radhey Mohan, was reported about this fact by complain-ant Ram Swaroop on that very day and the complainant also wrote a letter to the petitioner that the fee so realised was sent to Shri Prabhati Lal who is incharge of the receipt of the fees. This letter was received by the petitioner on 21/4/1970, on which the petitioner replied to the complainant that a sum of Rs 393. 07 received by him, as examination fees has already been paid to the complainantal and, therefore there was no question of depositing the same with Shri Prabhati Lal THE receipt of the amount of Rs. 393. 07 has been produced in the case as Ex. D/l and the photostat copy of the same is Ex. D/6. A departmental inquiry was initiated against the petitioner on the complaint of Ram Swaroop and, it was found, as a result of the inquiry, that the amount has been paid by the petitioner to the complainant, Ram Swaroop and it was ordered that the amount may be recovered from the complainant, Ram Swaroop. In these circumstances, Ram Swaroop, complainant has filed this criminal complaint against the petitioner on 11/4/1972 along with one Radha Mohan, Block Development Officer has verified the receipt Ex. D/4. THE complainant has not preferred any appeal, revision or even representation to the superior authorities against the order passed in the departmental inquiry. THE learned Munsiff Magistrate discharged the other accused Radha Mohan and framed charges under Sections 409, 467 and 471, I. P. C. and after trail convicted and sentenced the accused petitioner as aforesaid. THE appeal filed by the petitioner was also dismissed by the learned Sessions Judge, Bharatpur. Hence, this revision. Shri Rastogi, learned counsel for the petitioner, has vehemently urged that the judgments of the two Courts below are perverse and against the facts of the case and evidence on record. He has further submitted that since the accused-petitioner has admitted having received the money alleged to have been misappropriate by him to defend himself by saying that he had made it over to the proper person. The onus does not lie upon the accused to prove the payment, but it lies heavily on the prosecution to prove non-payment and it is only when the latter is proved, that the guilt can be held to have been brought home to the petitioner. He has placed reliance on Mangi Lal vs. The State (1), in which it has been held that there is a presumption of innocence and the burden lies on the accused-petitioner to prove his innocence, but the onus always lies on the prosecution to prove its case beyond doubt. I have carefully gone through the judgment of the two courts below and considered the arguments advanced by the learned counsel for the accused-petitioner and the learned Public Prosecutor. The prosecution has examined P. W 1 Ram Swaroop. who was Deputy Inspector of Schools posted in Panchayat Samiti, Roopwas at the relevant time. He has deposed that when he demanded a sum of Rs. 393. 07 from the accused-petitioner he replied that he will not give without asking the BDO and, when he reported the matter to the BDO, he told that the fee should be deposited in the Education Branch. Thereafter the petitioner was ordered to deposit the amount in the Educational Branch and the witness received a letter on 12/4/1970, by the Block Development Officer that the amount has been deposited by the petitioner. He has admitted in the cross-examination that on 20/4/1970, the petitioner went to the office of the Block Development Officer in the evening at about 4 p. m. and showed the receipt to the Block Development Officer. Pw/2 Purushottam Sharma was posted as Officiating Headmaster at Middle School, Khan Surja. He said that the Headmasters were expected to collect the examination fees, and, when he met Mahaveer he told that he will send the fees as ordered by the Block Development Officer.
(3.) PW/3 Radhey Shyam was also posted as a teacher in Roopwas at the relevant time, when the petitioner was also posted there. He deposed that the petitioner had collected the examination fees, but he told that he will deposit the fees only on the orders of the Block Development Officer. The accused-petitioner has examined Shri Radha Mohan in his defence as D. W. 1 who was Block Development Officer in Roopwas Panchayat Samiti at the relevant time. He stated on oath that he had verified the receipt Ex. D 1 and the amount had been paid by the petitioner to the complainant. He was cross-examined at great length. The prosecution has not been able to shatter the evidence,and therefore,there is no reason to disbelieve his statements. The defence has also examined Mahendra Singh, DW2, who was a teacher in Nayagaon School. He has deposed that on 20-4-1970, he had gone to Roop was School and in his presence the accused petitioner had paid the examination fee amounting to Rs. 393. 07 to Ram Swaroop and in token thereof Ram Swaroop had executed a receipt Ex. D. 1, in his presence. He has also been cross-examined at length, but his evidence has not been shaken. ;