JAS RAJ CHOPRA, J. - (1.) THIS appeal is directed against the judgment of the learned Munsif and Judicial Magistrate, Nathdwara dated October 3, 1977 whereby the learned lower court has acquitted the accused Mohanlal of the offence under Section 409 IPC.
(2.) THE facts of this case briefly stated are that accused -respondent Mohanlal was working as a Patwari in Patwar Circle, Nathdwara from August 7, 1972 to January 18, 1973. During this period, he collected a sum ofRs. 688/ - on August 21, 1972 vide receipt No. 8, Book No.25300 from one Hiralal Soni. He also collected a sum of Rs. 344/ - on October 23, 1972 vide receipt No. 9, Book No. 25300 from one Bhanwarlal Soni. This amount related to Sawankar loan advanced to these persons. Actually, this was the amount of the third instalment which was due from these two persons. Accused Respondent Mohanlal after collecting the aforesaid sums did not make any entry in the Cash Receipt Register. As per Rule 110(2) of the Rajasthan Land Revenue Rules, 1957, he was required to deposit this amount within a week in the Sub -Treasury as the amount collected was less than Rs. 2,000/ -. Had it been a case of Rs. 2,000/ - or more the amouut should have been deposited on the next day in the Sub -Treasury. However, the accused -respondent Mohanlal retained this amount with him upto August 18,1975 i.e. for about a period of three years and then deposited it in the Bank vide Treasury Challans Ex. P. 3 to Ex. P6. When this amount was collected, he issued receipts to the depositors and those receipts have been marked Ex. Ps. 1 and 2. It was expected of him that he should have sent one copy of these receipts to the Tehsildar but he did not send any copy of the receipt to the Tehsil for its record. On checking, it was found that actually this amount has been deposited by the depositors and the accused respondent Mohanlal who was Patwari at the relevant time has retained it and, therefore, a notice was issued to him on August 25, 1975. However, the accused -respondent Mohanlal before issuing the notice deposited the aforesaid sums in original without any interest on August 10, 1975. In reply to the notice issued to the accused -respondent, he admitted that due to error, he has not deposited the amount. It may be stated here that when he was relieved from the charge of this Patwar circle he did not hand over this amount even to the Patwari who took over the charge from him. A complaint of the incident was lodged by the Tehsildar at the Police Station, Nathdwara, which has been marked Ex. P. 8 and no the basis of this, a formal FIR Ex. P. 8A was drawn. Receipts Ex. P. 1 an 2 were taken in possession from the concerned depositors. The copies of the challans were also obtained from the Sub -Treasury. After usual investigation, the case against the accused was challaned under section 409 IPC. The accused -respondent Mohanlal did not plead guilty to the charge and claimed trial, whereupon, the prosecution examined 6 witnesses in support of its case. The statement of the accused was recorded under Section 313, Criminal Procedure Code. He admitted that he was working as Patwari at the relevant time. He has also stated that he issued receipts Ex. Ps. 1 and 2 to the concerned depositors and has deposited the amount in the Bank vide challans Ex. P. 3 to Ex. P. 6. He has admitted that Ex. Ps. 1 to Ex. P. 6 are in his hand. In the end, he has stated that he retained the amount for quite some time because the Sub -Treasury People refused to receive the amount as it was retained by him beyond the prescribed period and after that he was transferred but before he was transferred, he has deposited this amount with interest. He refused to examine any body in defence.
(3.) AFTER hearing the parties, the learned lower court came to the conclusion that although it is proved that the accused has recovered from Hiralal and Bhanwarlal a sum Rs. 688/ - and 344/ - respectively on August 21, 1972 and October 23, 1972 but there is no proof that he has utilised this amount for his own use and he has misappropriated it. Relying on State of Rajasthan v. Satya Narain 1968 RLW 601 it was held that mere delay in depositing the amount does not amount to criminal misappropriation of the money and, therefore, the accused was acquitted by giving him the benefit of doubt. Aggrieved against this judgment the State has preferred this appeal.;