- (1.) THIS is an appeal by the State against an order of the acquittal of the respondent in a case under sec. 409 of the Indian Penal Code.
(2.) A preliminary objection has been taken on behalf of the respondent regarding the maintainability of the appeal on the ground that it was presented by the Deputy Government Advocate who is not a Public Prosecutor. It is urged that as provided in sec. 417 (1) of the Code of Criminal Procedure, State Government can direct the Public Prosecutor to present an appeal to the High Court form an order of acquittal passed by any court other than a High Court. In my view there is no substance in this objection. Sec. 4 (1) (t) of the Criminal Procedure Code, defines a Public Prosecutor thus : 'public Prosecutor' means, "any person appointed under sec. 492, and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of Government in any High Court in the exercise of its original criminal jurisdiction. " Certain rules were framed by His Highness the Rajpramukh under the proviso to Art. 309 of the Constitution of India regulating the appointment and conditions of service of persons appointed as Advocate General, Government Advocates, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocates vide Notification dated 18th December, 1951. Rule 5 (1) lays down that: "the Advocate General is appointed under Sec. 492 of the Code of Criminal Procedure to be Public Prosecutor for all cases in the High Court. " Rule 1 describes the Law Officers of the Government: (1) Advocate General; (2) One or more Government Advocates (the Government Advocate will be Assistant to the Advocate General and will act under his direction and control.) The above rule clearly lays down that all the Government Advocates are to act under the directions and control of the Advocate General. It will therefore, have to be normally presumed that all acts done by the Government Advocate including the presentation of appeals on behalf of the State in the High Court are done according to the directions of the Advocate General. That being so, according to the definition of Public Prosecutor mentioned above all Government Advocates acting under the directions of the Advocate General (Public Prosecutor) will be also included within the definition and shall be Public Prosecutors. I am therefore, of the view that the appeal was validly presented in this case by the Deputy Government Advocate who is also Public Prosecutor acting under the directions of the Advocate General. This point has also been recently decided in State of Rajasthan vs. Pukhraj (1) where a similar view was taken by the learned Judge of this Court. In that case it was stated at the Bar by the learned Deputy Government Advocate that he and his colleagues act under the directions of the Advocate General though attention of the Court was not invited to Rule 1 quoted above. The learned Judge held that: "the rule does not require that such direction must be in writing and the presumption being that official acts are performed properly, I am of the view that the Deputy Government Advocate under the direction of the Public Prosecutor, namely, the Advocate General was entitled to submit the present appeal. " The preliminary objection is therefore, overruled. The case of the prosecution against the respondent was that in the year 1956, he was Patwari of Markhi and Hanoti villages in Tehsil Berath, District Jaipur. It is said that he collected land revenue from various cultivators and issued receipts to them but failed to enter the said amounts in the cash book and to deposit the same in the Tehsil Treasury. In all, it is said that he embezzled a sum of Rs. 249/5/9. The matter came to the notice of Shri Zorawarmal Patni, Tehsildar Berath (P. W. 12) when a demand notice was issued to Goma and Khanga for the recovery of Taqavi loan advanced to them. In response to that notice, the above named cultivators produced Ex. P-3 a receipt showing the payment of that amount on 29th November, 1956. An enquiry was therefore, instituted against the respondent. Shri Kharaitiram, Naib Tehsildar (P. W. 10) made an enquiry and submitted report Ex. P-2. He also submitted a statement of the amounts embezzled by the respondent (Ex. P-4 ). Thereafter, the Tehsildar submitted a report Ex. P-15 to the Sub-Divisional Officer, Kotputli An enquiry was held by Shri Ajit Kumar (P. W. 13) on the orders of the Commissioner Ajmer Division and his report is Ex. P-16. The Tehsildar then sent a report to the police (Ex, P-14) on which a case was registered against the respondent and after investigation a charge sheet under sec. 409 of the Indian Penal Code was submitted against him. In support of its case the prosecution examined 16 witnesses and also produced documentary evidence to prove that various amounts were realised by the respondent from the cultivators which he failed to deposit in the treasury and committed criminal breach of trust in respect of them. The respondent denied the recovery of the said amounts by him as also issuing of receipts to the cultivators. He also denied that the entries in the Siaha i. e. , case book were made by him. He also examined three witnesses in defence to show that the receipts and entries in the cash book were not in his handwriting and were not signed by him. The learned Munsif Magistrate First Class, Shahpura on a consideration of the evidence came to the conclusion that excepting the sum of Rs. 4/-/6 the prosecution has failed to establish that the respondent had realised the other amounts. The learned Magistrate further found that the prosecution did not lead evidence to show that the amounts in dispute had not been deposited in the treasury. The learned Magistrate also came to the finding that according to the procedure obtaining in the year 1956 it was the duty of the Lambardars to recover the land revenue from the cultivators and the patwari was only to issue receipts to them. Thus no cash came to the hands of the patwari. In view of these findings the learned Magistrate acquitted the respondent. I now proceed to examine the prosecution evidence in regard to each item constituting the sum of Rs. 249/5/9. As already stated the total amount said to have been embezzled is Rs. 249/5/9 and it consists of the following items: (1) Rs. 102/5/6 out of the sum of Rs. 897/1/9 realised as land revenue on 25th June, 1956 by the respondent. It is said that all the amounts realised on that date have been correctly entered in the cash book (Ex. P-5) by the respondent, but in the total instead of mentioning Rs. 897/1/9 he has mentioned Rs. 794/12/3 only. Thus he had not deposited Rs. 102/5/6 and dishonestly misappropriated it. (2) Rs. 5/6/3 realised on 20th October, 1956 from Ghisa (P. W. 1 ). (3) Rs. 4/-/6 realised from Chitar on 2040-1956. (4) Rs. 9/2/- realised on 20. 10. 1956 from Suwa (PW-3 ). (5) Rs. 2/- realised on 20. 10. 1956 from Surja (PW-6), (6) Rs. 5/- realised on 20. 10. 1956 from one Chota. (7) Rs.-/7/6 realised from Mangla. (8) Rs. 121/- realised from Bhoma and Khanga in respect of Taqavi loan on 29. 11. 1956. For the first item of Rs. 102/5/6 the prosecution relies upon the evidence of Shri Khairatilal Naib Tehsildar (P. W. 10) who has stated that all the entries in Ex. P-5 are in the handwriting of the respondent. He also stated that the total of the amount realised on 25th June, 1956 comes to Rs. 897/1/9 while the respondent has shown a sum of Rs. 794/12/3 in the total and that he did not deposit Rs. 102/5/6 in the treasury. The prosecution further relies on the statement of the respondent recorded under sec. 251 A wherein in answer to question No. 5 the respondent admitted the realisation of Rs. 897/1/9 as land revenue by him. Contention of the learned Deputy Government Advocate is that the admission made by the respondent in his statement under sec. 251-A of the Code of Criminal Procedure can be taken into consideration by the court. In this connection he has referred to a decision of the Allahabad High Court in C. N. Peters vs. The State (2 ). Learned counsel for the respondent on the other hand has urged that the above statement of the respondent cannot be taken into consideration at the trial. He says that the said statement can only be taken into consideration for the purpose of discharging an accused or framing a charge against him as provided in sec. 251-A sub-sec. 2 and 3 of the Code. He relies on State vs. Sitaram Dayaram Kachhi (3 ). Further learned counsel contends that the cultivators who are said to have paid various amounts constituting the sum of Rs. 897/1/9 have not been examined by the prosecution to prove that the said amounts were paid to the respondent himself. He says that the evidence of the prosecution itself shows that in 1956 it was the duty of the Lambardars to realise the land revenue from the cultivators and the pat-wari was only required to issue receipts to them. According to him the patwari was not to handle the cash. In this connection he has referred to the evidence of Shri Khairati Ram Naib Tehsildar (P. W. 10 ). It has also been urged that the prosecution has failed to produce in evidence the challan by which the amount realised on 25th June, 1956 was deposited in the treasury which could have shown that only Rs. 794/12/3 were deposited and not Rs. 897/1/9. The first point to be considered in this connection is whether the admission made by the respondent in his statement under sec. 251-A of the Code can be taken into consideration by the court. The Madhya Pradesh High Court has held in Sitaram's case (2) that: "the examination of the accused under sec. 251-A Cr. P. C. must necessarily be with regard to the material against him in the documents referred to in sec. 173, Cr. P. C. and the answers given by the accused during such examination explaining those documents can at the most be the material on which a Magistrate can discharge the accused or frame a charge against him. But the answers given by the accused do not constitute any evidence either for or against him. That being so sec. 342 (3) Cr. P. C. which applies to the answers given by the accused when he is asked to explain any circumstances appearing in the evidence against him, cannot be said to be applicable to answers given by the accused under sec. 251-A when he is examined before the framing of the charge. Hence, an accused person cannot be convicted on his statement made in his examination under sec. 251-A before the framing of the charge. " Mulla, J. has not agreed with the view taken in the above case and he has held that: "a statement recorded at the stage of sec. 251 possesses just as much evidentiary value as the statements recorded later on under sec. 342 after the evidence is recorded. They supplement each other and are parts of the same statement of the accused and therefore any facts accepted in the statement under sec. 251-A can be used as evidence by the trial court against the accused. " In my view the reasoning adopted by Mulla, J. in the above case is correct and with respect I agree with that view. Under sec. 342 (1) of the Code of Criminal Procedure the court is empowered to put any questions to the accused for the purpose of enabling him to explain any circumstances appearing in evidence against him. Even though the statement of the accused is recorded under sec. 251-A of the Code, yet that statement too, would be one under sec. 342 of the Code. The Statements recorded under secs. 251-A and 342 have the same evidentiary value. The difference lies only in regard to the stage at which the statements are recorded. It cannot be argued that when the accused is examined under sec. 251-A there are only documents referred to in sec. 173 which are to be considered and till then there is no evidence against him. The expression Tor the purpose of enabling the accused to explain any circumstances appearing against him' also occur in sec. 207-A and the Supreme Court in Ramnarayan Mor vs. The State of Maharashtra (4) by majority judgment held that: "in the context of the examination of the accused for the purpose of enabling him to explain any circumstances appearing against him, the Legislature has used the expression "in the evidence against him", which is not expressly qualified by reference to sub-sec. (4) nor does any implication arise from the context which would suggest that it has a limited content. " It was further held by the Supreme Court that: "by the Evidence Act which applies to the trial of all criminal cases, the expression 'evidence' is defined in sec. 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence, Normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under amended Code the Legislature has in sec. 207-A prescribed a special procedure in proceedings for commitment of the accused. The record consists of the oral evidence recorded under sub-sec. (4) of sec. 207-A and the documents referred to in sec. 173 (4) and it would be difficult to regard only these documents which are duly proved, or which an admissible without proof as 'evidence', within the meaning of cl. (6) of sec. 207-A and not the rest. " It is therefore, clear that every statement of the accused whether under sec. 251-A or under sec. 342 of the Code stands on the same footing and has the same evidentiary value. That being so it is clear from the statement of Khairatiram, Naib Tehsildar (P. W. 10) and the admission of the respondent himself that he had collected Rs. 897/1/9. It is also clear that in Ex. P. 5 he had shown a total of Rs. 794/12/3 instead of Rs. 897/1/9. Shri Khairatiram has deposed that Rs. 102/5/6 were not deposited in the treasury. The respondent has not given any account about the shortage of Rs. 102/5/6. It can, therefore be inferred that he had committed criminal breach of trust in respect of this amount. The next item is of Rs. 5/6/3. Ghisa (P. W. 1) has stated that he had paid this amount to the respondent who was acting as a patwari in Smt. 2012. He has also stated that the Patels started realising land revenue only during the last three years. He also produced Ex. P-6 in respect of the amount recovered from him. But when the contents of the receipt were read over to him he stated that he did not remember whether he paid this amount to the respondent or not. Further the prosecution failed to prove that Ex. P-6 was in the handwriting of the respondent. That being so it cannot be held that Rs. 5/6/3 were recovered by the respondent from Ghisa on 20th October, 1956.
(3.) RS. 4/-/6.- Chitar (P. W. 2) has stated that he had paid this amount to the respondent for land revenue due from him. He also stated that the patels were not present when this amount was paid to the respondent. He has further stated that land revenue was not being realised by the patels in Smt. 2012. Receipt Ex. P-l written and signed by the respondent has also been produced on behalf of the prosecution in respect of the aforesaid amount. Shri Khairatiram (P. W. 10) has stated that Ex P-l is in the handwriting of the respondent. Thus from the above evidence it is satisfactorily proved that the respondent realised RS. 4/-/6 from Chitar on 20th October, 1956 and failed to deposit this amount in the treasury. The trial magistrate also that this was realised by the respondent. Since the respondent failed to give any account for this sum it can safely be inferred that he had committed criminal breach of trust in respect of this amount. Rs. 9/2/ -. Suwa (P. W. 3) has stated that he had paid land revenue to the respondent for both crops, though he did not remember the actual amount paid. He also stated that the patels did not realise the amount at that time. The prosecution also produced Ex. P-7 receipt issued to Suwa by the respondent. Shri Khairatiram (P. W. 10) proved that Ex. P-7 had been written and signed by the respondent and he stated that the amount was not deposited in the treasury. The respondent denied having recovered this sum and also that Ex. P-7 was written and signed by him. But in view of the above evidence it can safely be said that he recovered Rs. 9/2/- from Suwa and failed to account for it and thus committed criminal breach of trust in respect of this amount. Rs. 2/ -. Surja (P. W. 6) stated that he had paid land revenue to the respondent and had also obtained a receipt from him which was taken from him by the Tehsildar. Receipt Ex. P-8 was also produced in regard to this sum by the prosecution. Shri Khairatiram (P. W. 10) gave evidence that Ex. P-8 was written and signed by the respondent. Thus from the evidence of Surja and Shri Khairatiram it is proved that the respondent realised Rs. 2/- on 20th October, 1956 from Surja and issued Ex. P-8 to him. The respondent did not render any account in regard to this sum and so it can safely be inferred that he committed criminal breach of trust of this sum too. Rs. 5/ -. This amount is said to have been recovered by the respondent from one Chota but the prosecution failed to examine Chota. It cannot therefore, be said that this amount was realised by the respondent. The charge of criminal breach of trust in regard to this item therefore, fails. Rs.-/7/6. No satisfactory evidence has been given to prove that the respondent embezzled -/7/6. Mangla who is said to have paid the amount out of which -/7/6 are said to have been embezzled has not been examined. Reliance is placed on behalf of the prosecution on the discrepancies in Exs. P. 11 and P. 13. But it can be a case of omission only when instead of crediting Rs. 3/15/9 only Rs. 3/8/3 were credited in Ex. P. 11. It does not appear that the respondent did it dishonestly. Rs. 121/- The respondent also cannot be held guilty for committing criminal breach of trust in respect of this amount because it was the case of the prosecution itself that this amount which was realised from Goma and Khanga on 29th November, 1956 was deposited in the Tehsil Treasury in the month of June by Sugan Chand Lambardar. There is no evidence on record to show that the respondent had realised this amount from Goma and Khanga because Goma and Khanga have not been examined in this case. Further there is no evidence that the amount remained lying with the respondent till it was deposited by Suganchand in the treasury in the month of June, 1957. ;