BERI, J. - (1.) APPELLANT S. N. Puri, a Traffic Assistant in the Indian Air Lines Corporation of India (hereinafter called 'i. A. C.)' at Jaipur, collected certain monies from intending passengers for trunk call telephone charges and deposited only a part thereof, and has been convicted by the learned Special Judge, Rajas-than, Jaipur City on 31-8-1966 under sec. 409 of the Indian Penal Code and sec. 5 (2) read with sec. 5 (2) read with sec. 5 (l) (c) and 5 (l) (d) of the Prevention of Corruption Act, 1947 and a fine of Rs. 250/ -. The sentences have been ordered to run concurrently. , The total fine of Rs. 500/- if not paid the appellant has been ordered to suffer another 6 months' rigorous imprisonment. He has come up in appeal.
(2.) IN the year 1962 appellant was employed as a Traffic Assistant in the I. A. C. Jaipur Whenever all seats allotted to Jaipur in the I. A. C. air service were already booked but there were more passengers who desired to travel from Jaipur the practice was that the Jaipur Office by means of telephone trunk calls tried to get seats from other Airports released with a view to accommodate these intending passengers and collected from them estimated cost of telephone charges in advance. The appellant when on duty collected these charges and made efforts to provide seats to the waiting passengers. He used to issue receipts for the trunk telephone calls in the proper printed receipt forms of the I. A. C. IN between the 16th February 1962 and the 30th August, 1962 both inclusive the appellant collected a sum of Rs. 184-90 consisting of nine items from various persons, but deposited with the I. A. C. only Rs. 44. 91 P. and himself retained the difference of Rs. 139. 99 P. The appellant issued correct receipts to the intending passengers but with a view to cover up the misappropriation falsified the office copies submitted to the I. A. C. as also the account books by entering therein the actual trunk call charges instead of the estimated amounts actually received from the intending passengers. On 31-8-1962 M. D. Singh of the Mercury Travel Agency, Jaipur complained to B. S. Gupta, the Station INcharge of the Office of the I. A. C. that the appellant had collected Rs. 23 40 P. for proposed trunk call charge from the Agency but made no call and no seat was J allotted to the passenger of Mercury Travel Agency even though one was available and that seat was given by B. B. Gupta to some one else. B. S. Gupta questioned the appellant and he made a confession of his having collected the amount and) his guilt of not making any call and at once resigned his job. The Area Manager of the I. A. C. conducted a preliminary inquiry and lodged a first information report. After investigation a charge sheet was submitted against the appellant. It was later amended. The accused pleaded not guilty to the charge and led defence evidence but was eventually convicted and sentenced as indicated above. He has now come up in appeal. Mr. M. M. Singhvi appearing for the appellant has raised a number of points in support of his appeal. His first contention was that Shri D. G. Sharma, Special Judge, Rajasthan on 22-8-1963 framed charge against the appellant on three counts, namely, (1) sec. 5 (2) read with sec. 5 (1) (c) of the Prevention of Corruption Act, (ii) sec. 409, I. P. C. , and (iii) sec. 477a of the Indian Penal Code. Mr. B. C. Ojha, Special Judge No. 2, Jaipur City, however, amended the charge and only framed charges under two heads, namely (l) under sec. 5 (1) (c) read with sec. 5 (2) and (2) under sec. 5 (1) (d) read with sec. 5 (2) of the Prevention of Corruption Act. The charges under section 409 and 477a of the Indian Penal Code having been dropped it was not open to the learned Special Judge to convict the appellant under sec. 409 of the Indian Penal Code. It is a conviction without a charge. He placed reliance on Suraj Pal vs. State of U. P. (1 ). Mr. B. C. Chatterjee, learned Additional Government Advocate, submitted that the contents of the charge as framed on 15-1-1964 disclosed the entire circumstances concerning the case and whatever offences came to emerge from those contents the appellant could have been convicted thereunder. Under sec. 237, Cr. P. C. the learned Additional Government Advocate argued it was perfectly permissible and he placed reliance on G. D. Sharma vs. State of U. P. (2 ). His further submission was that the facts having been fully disclosed, conviction of the appellant under sec. 409 I. P. C. has not in any manner prejudiced the accused. The charges framed on the 15th of January, 1964 clearly bring out dishonest and fraudulent misappropriation of the total sum of Rs. 139. 99 P. pertaining to trunk call charges collected by the appellant for which he had issued receipts. The receipt numbers have been given and the amount of total realisation Rs. 184. 90 P has been given. Under the second count this charge sheet speaks of the abuse of the position by the appellant as a public servant by obtaining pecuniary advantage to the extent of Rs. 139,99 P. The function of a charge in my opinion is to notify to an accused person the material allegation which he is called upon the answer. In the circumstances of this case the material allegations both for the purposes of sec. 409 I. P. C. and sec. 5 (1) (c) of the Prevention of Corruption Act are that in between given dates the appellant as Traffic Assistant of the I. A. C. collected from intending passengers a sum of Rs. 184. 90 P. , issued receipts bearing certain numbers but accounted only for Rs. 44. 91 P. and dishonestly misappropriated the balance of Rs. 139. 99 P. So far as entrustment and dishonest mis-appropriation are concerned these are common elements both under sec. 409 I. P. C. and sec. 5 (1) (c) of the Prevention of Corruption Act. The facts relied upon by the prosecution at the commencement of the trial were fully notified to the appellant and in the circumstances of this case, he was, therefore, made aware of all the offences which emerged from those facts. Sec. 237 of the Code of Cr. P. would appear to apply to the facts of this case. No prejudice has been alleged and I am unable to imagine any either. The 1955 Supreme Court case (1) is clearly distinguishable. In that case while the charges were under sec. 307 read with sec. 149 and sec. 302 read with 149 I. P. C. the conviction was under sec. 307 and 302 I. P. C. without the aid of sec. 149 I. P. C. In any exent, the grievance is more academic than real because the punishment under sec. 5 (2) is adequate enough to meet the ends of justice, and in point of fact the sentences awarded under sec. 409 and 5 (1) (c) in the case are similar in their extent and they have been made to run concurrently. This point, therefore, has no merit and it fails. Mr. Singhvi, the learned counsel for the appellant then submitted that the charge relates to nine different receipts issued on different dates and the appellant could not be tried for more than those offences in one trial and the whole trial is, therefore, vitiated on account of the mis-joinder of charges. He placed reliance on D. K. Chandra vs. The State [3] and the State of A. P. vs. Cheemalapati Ganeswara Rao[4]. The learned Additional Government Advocate invited my attention to sec. 6-A of the Prevention of Corruption Act, 1947 which came into force on 18th December, 1964 effecting an amendment to the provisions of sec. 234 of the Code of Criminal Procedure. It lays down that notwithstanding anything contained in the Code of Cr. P. C. , 1898, when an accused is charged with an offence under cl. (c) of sub-sec. (1) of sec. 5, it shall be sufficient to describe in the charge the property in respect of which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of sec. 234 of the said Code ; Provided that the time included between the first and last of such dates shall not exceed one year. His further contention was that the appellant did not raise this plea in the course of the trial complaining any prejudice and even today he is unable to say how he has been prejudiced on this account. He placed reliance on W. Slaney vs. State of M. P. [5]. To this Mr. Singhvi answered that the charge against the appellant was framed on 15-1-1964 whereas the amendment came into force on 16-12-64. Sec. 222[2] when read with sec. 234 Cr. P. C. enacts a prohibition and such a charge, therefore, is clearly illegal. He placed his reliance on Subrahamnia Ayyar vs. King Emperor [6] and Anant Gopal Sheorey vs. State of Bombay [7]. His next submission was that sec. 5[l][d] is not covered by sec. 6-A of the Prevention of Corruption Act and, therefore, the trial is vitiated. Sec. 234 Cr. P. C. provides that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not he may be charged with, and tried at one trial for any number of them not exceeding three. Sec. 6-A as introduced by the Anti-corruption Laws [amendment] Act, 1964 [act No. 40 of 1964] which came into force on the 14-12-1964, reads as follows - "6-A - Particulars in a charge in relation to an offence under sec. 5[1] [c] - Notwithstanding anything contained in the Code of Criminal Procedure, 1898 [5 of 1898], when an accused is charged with an offence under cl. (c) of sub-sec. (1) of sec. 5, it shall be sufficient to describe in the charge of property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of sec. 234 of the said Code. Provided that the time included between the first and last of such dates shall not exceed one year. " The first question which arises is whether the amendment covers the instant case. It is correct that the charge was framed against the appellant on 15-1-1964 a little more than 11 months before the amendment. The provision of sec. 6-A is a deeming provision which seeks to consolidate into one offence a number of items in respect of which an accused may be charged for an offence under sec. 5 (1) (c ). It is a procedural provision and no one has any vested right in the procedure as laid down in Anand Gopal Sheory vs. The State of Bombay (7 ). Under sec. 227 of the Code of Criminal Procedure the Court trying an offence could always amend a charge and the trial court could do after 18-12-64. If it was already there and it stood covered by the Amending Law no exception could be taken to it. The procedural hurdle in section 234 stood already eradicated on 18-12-1964. The trial stands further saved by sec. 235 of the Code of Criminal Procedure, because these series of acts are so connected together as to form same transaction. In Dinkarray Raghnath vs. The State (8) it has been held that where different defalcations in the course of one year have been committed they can be tried together. I am in respectful agreement with this view. No conviction has been recorded under sec. 5 (1) (d) of the prevention of Corruption Act and I am not told how its existence prejudiced the appellant. Mr. Singhvi next argued that the prosecution has failed to prove that the receipts marked Exs. P/5, P/4, P/3, P/12. P/53, P/38, P/54, P/41 and P/40 are in the handwriting of the appellant. He urged that the learned Special Judge was in error when the concluded on the mere evidence of the handwriting expert that these receipts were in the handwriting of the appellant. The expert's evidence, continued, the learned counsel, is an evidence of mere opinion and cannot be held to be conclusive. He placed reliance on Ishwari Prashad Misra vs. Mohammad Isa (9 ). He further argued that the evidence of B. S. Gupta, who proved the signatures of the appellant, is unreliable because the appellant remained in Jaipur only for 8 months and a few days, when Gupta had opportunity of seeing his hand writing and he was therefore not acquainted with the handwriting of the appellant. Gupta's evidence is further undefendable because he had made of J N. Mehra and M N. Kaul. He has further made a mistake in identifying the handwriting errors in regard to the identification of the handwriting of the appellant regarding portion C to D in Ex. D/1, the Airport Log Book of the 27th May, 1957. The difficulties of the witness and that of the Expert are heightened because the documents in which the handwriting of the appellant had been identified are written by a ballpen with the aid of carbon and the tell-tale marks of pen-pressure, pen-angle, etc. are not easy to ascertain. The signature, of the appellant have no outstanding characteristics either and thus the prosecution has failed to prove that the receipts are in the handwriting of the appellant. One more circumstance, contended the learned counsel, necessary to be kept in mind, is that while comparing the handwriting of the appellant with specimen signatures ink and paper of the same kind should have been employed to facilitate a careful comparison. He placed reliance on Abdul Gani vs. pevilal (10 ).
(3.) THE learned Additional Government Advocate supported the conclusions of the learned Special Judge, I have carefully examined the 9 receipts in dispute. In the first place, it is not correct to say that the learned Special Judge has based his conclusions on the mere opinion of the handwriting expert Mr. B. L. (PW/27 ). On the contrary the learned Special Judge has recognised the principle when he observed, - "so far as this is concerned, there can be no two opinions about it, that conviction cannot be based on the opinion of a handwriting expert only, if the same has not been corroborated by other evidence. " The learned Special Judge on the other hand has concluded that the aforesaid receipts are in the handwriting of the accused person on the basis of the evidence of B S. Gupta, K. K. Srivastav & D. D. Sharma, who were acquainted with the handwriting of the appellant and he has relied upon their testimony. He has rejected the failure on the part of B. S. Gupta to identify the handwriting of other persons as there was no reason for distrusting his testimony on that account. The acquaintance with a handwriting depends on a variety of circumstances including the frequency with which one comes to deal with it. As a matter of fact after believing these witnesses, and in my opinion rightly, learned Special Judge has dealt with the circumstantial evidence from which the handwriting of the accused on these receipts stands proved. One circumstance in my opinion is very weighty. It is the consistent mis-spelling of word 'tewenty'. The appellant has spelt 'twenty' as 'twenty' in Exs. P/4, P/5, P/3, P/12, P/40 and P/41, the receipts in dispute. The specimen writings of the appellant taken in the presence of V B. Saxena (PW/25) and proved by him are marked Exs/159,160 161 and 162. I have examined each one of them and "twenty" has been spelt as "twenty" in every specimen. This is no accident. It is a habit born of early-age imperfect learning which is keeping company with the appellant's mind. Mr. A. S. Kapur, the handwriting expert produced by the defence has recognised, and in my opinion rightly, that consistent mis-spelling is a part of writing habit. The circumstance that it was the duty of the accused to deal with cash-value documents and receipts being those documents, his presence on duty on the material dates coupled with the evidence of the witnesses, above mentioned, and the speaking mis-spelling of twenty conclusively establish that the receipts are in the handwriting of the accused. I agree that it would have been better, as observed by this Court in Abdul Gani's case (10) that for the purposes of comparison if the same kind of paper and pen were employed but there are other characteristics of handwriting which speak irrespective of the fact that one writes with a ball pen on a brown paper or on a slate with a chalk. These arguments, therefore, in my opinion have no substance and I am satisfied that the above mentioned 9 receipts are in the handwriting of the appellant. Mr. Singhvi further submitted that even if it is proved that the appellant had received the amount of money alleged by the prosecution there were no standing orders how the amount over and above the one which was actually expended was to be disposed of. If at all, any person had proprietory and beneficial interest in the balance it was the intending passengers who have not complained or demanded its return. It is not the I. A. C. , who had any right of property in the balance and therefore no offence either under sec. 409 I. P. C. or under sec. 5 (l) (c) of the Prevention of Corruption Act was committed. At the highest an offence under sec. 403 I. P. C. was made out. He placed reliance on Surendra Pal Singh vs. The State (11) & Chellor Mankkal Narayan Ittiravi Nambudiri vs. State of T. G. (12 ). The learned Additional Government Advocate urged that the Allahabad case (11) has not been properly decided and he placed reliance on Laskari vs. Emperor (13), State vs. Dahyalal Dalpatram (14), and Sanwant Singh vs. State of Rajasthan (15 ). He emphasised that the receipts were given for and on behalf of the I. A. C. and the unexpended balance should have gone to the I. A. C. refundable by it to the intending passengers on their demand. The appellant had no business to pocket the same. The intention of the appellant is apparent when in the copies he entered an amount different from the one which he entered in the original receipts given to the intending passengers. Sec. 405 of the I. P. C. defines criminal breach of trust as follows - "whoever, being in any manner entrusted with property, or with any dominion over property dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust. " Sec. 5 (1) (c) of the Prevention of Corruption Act reads - "5. Criminal misconduct in discharge of official duty - (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty. . . (c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do". . . The common ingredients, in my opinion, however of both these offences are the entrustment of property and dishonest misappropriation or conversion by the person who was entrusted with the property. The question which arises for consideration therefore, in the circumstances of the case before me is whether the various sums of money given to the appellant by or on behalf of the intending passengers amounted to entrustment or not. It may be remembered that the appellant was an employee of the I. A. C. The intending passengers were asking for an allotment of a seat for air travel and to obtain the same they were prepared to bear the extra expenses of getting seats released from other Airports by paying the trunk call charges for such communication and possible release. The money was physically given to the appellant but in essence that money was entrusted to the I. A. C. through its servant, the appellant. The receipts were issued for and on behalf of the I. A. C. The intending passengers normally looked and legally could look for the refund of the balance, if any, to the I. A. C. The appellant had no beneficial interest in it, whereas the L. A. C. was under a legal obligation to refund its balance which remained by way of trust with the I. A. C. and the entrustment was made through the appellant. The appellant could not have been entrusted with this money if he was not the servant of the I. A. C. In this background I am clearly of the opinion that the entrustment of the amount stands proved. Further the words 'in any manner' in S. 405 of the I. P. C. are significant. They lend, in my opinion, an elasticity to the method of entrustment. ;