N. C. SHARMA, J. - (1.) KALU Ram, respondent, has been acquitted by the Judicial Magistrate No. 1, Bundi by his judgment dated May 9, 1980, under sec. 409, IPC and the State of Rajasthan has, by leave, filed this appeal against his acquittal.
(2.) KALU Ram was employed as an LDC-cum-cashier in the office of the Chief Medical & Health Officer, Bundi during the relevant time. As on October 11,1974, there was a cash balance of Rs. 6,021. 06 with KALU Ram as per the entry Ex. P/9 in the cash book. KALU Ram had joined the' office of the Dy. CMHO (Health), Bundi in the fore-noon of January 14, 1974 and he remained on this duty upto November 5, 1974 He was placed under suspension by an order of the CMHO dated November 6, 1974. Dr. S. K. Soloman (PW/20) was Deputy CMHO, Bundi from February 13,1974 to April 4,1974. Dr. RS. Purohit held this post from April 1974 to September 6, 1974. Again, Dr. S. K. Soloman again occupied this post from September 7, 1974 to October 11, 1974. Dr. R. P. Bhatnaga,r (PVV/21) joined the post of Dy. CMHO, Bundi on October 11, 1974 and continued on the post till October 1975 when Dr. R. P. Bhatnagar had joined, the respondent had gone to Jaipur in connection with the budget. He returned from Jaipur on October 27, 1974. Dr R. P. Bhatnagar asked him to complete the charge papers Cash book was demanded from him, which was produced on October 30, 1974. But it contained entries only upto October 11 , 1974 showing cash balance of Rs. 6,021 06. Dr. R. P. Bhatnagar wanted to check the cash physically, whereupon the respondent left the Office. Dr. R. P. Bhatnagar made a report Ex. P/9a in this respect to the Chief Medical & Health Officer, Bundi, wherein he mentioned that he was surprised to note that there was not a single entry in the cash book on either side of it, after October 11, 1974. He requested the Chief Medical & Health Officer to arrange for the handing over the charge after showing him physically the cash balance or paid vouchers. Thereafter, on October 31, 1974, the Chief Medical & Health Officer sealed the almirah used by the. respondent and, on November 1, 1974, the almirah was opened in the presence of Dr. S. K. Soloman. Dr. K. Lal, Shri S. D. Deval, SDM, Bundi, & Shri P. C. Jain Accountant, CMHO, Bundi. No cash was found in the almirah. Thereafter the statment of the respondent was recorded on November 1, 1974 and that statement is Ex. P/7. In that statement, the respondent made a confession that he did not have any cash balance with him. He had given some amount on loan and the rest has been used by him in domestic purposes. He assured that he would deposit the amount within four-five days. It appears from the receipt dated February 17, 1975, that the respondent deposited the amount of Rs. 5,780. 58 on that date to make good the embezzled amount. It may be mentioned that in the meantime, Nand Lal Sharma (PW/19), who was Assistant Accounts Officer, Internal Check Party, made an inspection and he gave his report Ex P/3. In this inspection report, Shri Nand Lal Sharma found that a total amount of Rs. 5,786. 58 had been embezzled by the respondent. He also pointed out certain financial irregularities in the maintenance of cash book and custody of the cash. On November 5, 1974, the Chief Medical & Health Officer, Bundi made a First Information Report (Ex P/6) to the Station House Officer, Police Station, Bundi. On this report, a case under Sec. 409, IPC was registered against the respondent. After necessary investgation, the police filed a charge-sheet. The Judicial Magistrate charged the respondent under Sec. 409, IPC and after trial acquitted the respondent of the said charge. It would be useful to state that in findings which has been arrived at by the Judicial Magistrate, The Judicial Magistrate held that during the relevant time, the respondent was a public servant. He further found that the cash book entry Ex. P/9 showed a balance of Rs. 6,021. 06 as on October 11, 1974. It was also found that the respondent acted as an LDC-cum-cashier and, he was expected, therefore, to possess with him the aforesaid amount either in cash or in paid vouchers. On the question of guilt of the respondent, the Judicial Magistrate from the very start proceeded erroneously as if he was bent upon to acquit the respondent. He mentioned that according to the prosecution, there was embezzlement of Rs. 6,021. 06, but Nand Lal Sharma (PW/19) has found in his report Ex. P/3 that there was an embezzlement of only Rs. 5,786. 58. As to the extrajudicial confession, as contained in Ex. P/7, the Judicial Magistrate stated that Shri K. Lal and SDM Shri C. D. Deval were not examined by the prosecution and, this lent support to the version of the respondent that he signed Ex. P/7 under coersion and undue influence. He stated that the extra-judicial confession is a very weak type of evidence and it should not be made the sole basis of conviction unless corroboration was there. On appraisal of the evidence he came to the conclusion that there was no corroboration. He also came to the conclusion that the almirah was not opened in the presence of the respondent. On the basis of these findings he has acquitted the accused-respondent. Certain facts are not in dispute in the case. The undisputed facts that on October 11, 1974, entry Ex. P/9 in the cash book showed the cash balance of Rs. 6,021. 06 with the respondent. It is also a fact that when Dr. R. P. Bhatnagar joined the post of Dy. CMHO on October 11, 1974 and wanted to inspect the cash book, there was no entry in the cash book after October 11, 1974. Dr. R. P. Bhatnagar immediately made a report Ex. P/9a to the Chief Medical & Health Officer, wherein he mentioned that when on October 30, 1974, he asked the respondent to submit the cash-book and all other records, he only placed the cosh book before him and on his asking for the bill register, cash register, paid vouchers and other documents, the respondent went away from the office without any permission. Thus, Dr. R. P. Bhatnagar could not find the placement of the cash by the respondent before him. It was on November 1, 1974 that the respondent was called and he gave a statement written in his own hand completely and which is Ex. P/7 on the record. In this statement, the respondent admitted that he was working as cashier in the office of the Deputy Chief Medical & Health Officer, Bundi. He also stated that the cash amount used to remain with him in single lock and he had utilised that amount in his domestic expenses. He further admitted that he did not have a single paise of the cash balance with him at that time. He had lost some money and had used that for his domestic expenses. He further said that he will deposit the amount in four or five days. This state-ment Ex. P/7 was made by the respondent in writing in the presence of Dr. R. P. Bhatnagar and Dr. S. K. Soloman, apart from K. Lal and the SDM. It is true that K. Lal and SDM Shri Dewal have not been examined, but there is no reason whatsoever to doubt the testimony of Dr. S. K. Soloman and Dr. Bhatnagar that the respondent gave this statement in writing and no undue influence had been exercised on him. There was no reason not to believe this statement Ex. P/7 made by the respondent. As to corroboration, if any, needed, it was amply furnished by the fact that after more than three and a half months, the respondent deposited from his pocket the amount of Rs. 5,787. 58 vide cash receipt. This shows that the respondent retained the amount which was in balance as per the cash book, from Oct. 11, 1974, till February 17, 1975. This evidence was sufficient to bring home the guilt for the offence under Sec. 409, IPC against the respondent. The Judical Magistrate unnecess?rily laid emphasis on the fact that while according to the prosecution there was embezzlement of Rs. 5,787. 58 was found The Judical Magistrate did not care to read the inspection report Ex. P/3 of Nand Lal Sharma, in which the witness has clearly explained that certain payment had been made by the respondent to Ahmed Noor, Harbans Singh, Shombu Singh Radha Mohan Parasar & Ramesh Kumar Khemchandani amout-ing in all to Rs. 301. 28 from 18th May, '74 to 3rd Oct. '74. The total amount of these payments came to Rs 301. 28 Moreover, there was a clerical error in the cash book entered on September 2, 1974 inasmuch as Salary Bill No. 87 dated 26th August, 1974 was prepared for 1,065. 85 and the same amount was drawn from the Treasury; but on account of clerical error insteald of Rs. 1,065. 85 an amount of Rs. 1,605. 85 was entered in the cash book. Thus, the amount of Rs. 540/- was entered in excess. There was also discrepency of Rs. 0. 30 in totalling. After giving credit to these amount the balance amount was found to have been embezzled by the, respondent and the accused could have been convicted for criminal misappropriation without specifying the particular amount of cash. An argument was advanced by the learned counsel for the respondent that as no previous sanction of the State Government had been obtained under Sec. 197, Cr. P. C. the Judicial Magistrate could not take cognizance of the offence under Sec 409, IPC against the appellant. This contention has no force in it. It is clear from Sec. 197, Cr. P. C. that sanction of the Government is necessary for the prosecution of a public servant, if he is a Public servant, not removable from his office without the sanction of the Government. It is clear from Ex. P/10 that the appellant had been appointed as LDC by the Director, Medical & Health Services. Rajasthan Jaipur. It cannot, therefore, be said that he was a public servant not removable from his office without the sanction of the State Government. Sec. 197, Cr. P C. does riot apply to public servant to him some lower authority by law or rule or order empowering to remove It clearly intends to draw a line between public servant and to provide that only in case of higher ranks, should the sanction of the State Government to their prosecution be necessary. The respondent is not entitled to any protection from prosecution under Sec. 197 (1), Cr. P. C. Moreover, it has been laid down by their Lord-ships of the Supreme Court in Om Prakash Vs. State of U. P (1) and in Pukh Raj Vs. State of Rajasthan (2) that what is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to an act done purely in a private capacity by a public servant. It has also been laid down that a public servant committing criminal, breach of turst does not normally act in his capacity as public servant. Reference may also be made to deposion reported P. Arulswami Vs. State of Madras (3) which was a case under Sec. 106 of the Madras Village Panchayat Act, 1950 and which section was similar to Sec. 197 (1) of the Code of Criminal Procedure. It was held that the sanction under Sac. 106 of the Madras Act was not necessary to prosecute the president of the Panchayt Board for the offence under Sec. 409, IPC. ft is a settled law that Sec. 197 of the Code is neither to be too narrowly construed nor too widely. Too narrow construction may render it otiose for it is no part of an official duty and can be to commit an offence. It is not the duty when require examination so much by the act because the official act can be performed in the discharge of the official duty as well as in dereliction of it.
(3.) BEFORE part with this judgment, I may refer to the decision in Madan Lal Vs. State of Punjab (4 ). In that case, there was a charge against the accused under Secs. 120b, 409 and 477-A of the Penal Code. It has been found that certain money had admittedly been received by the appellant. The High Court had held that the burden of proving was upon the appellant to show that what he had done with them. Their Lordships of the Supreme Court said that their was no question of the appellant raising any reasonable doubt in view of his admission that he received the said money; the evidence of the District Inspector of schools and the appellant's confession that he had in fact misappropriated Rs. 2,500/- and was prepared to deposit that amount. The conviction of the appellant in that case under Sec. 409, IPC was upheld. As a result of the foregoing discussion, the appeal of the State is allowed. I allow this appeal, set aside the judgment of acquittal passed by the Judicial Magistrate No. 1, Bundi, on May 9, 1980 and convict the respondent, Kalu Ram, for the offence under Sec. 409, IPC and sentence him to rigarous im-prison merit for one year. Judicial Magistrate No. 1, Bundi will take immediate steps to take the respondent in custody and will commit him to jail to undergo the sentence awarded by this judgment and will report to this Court about having complied with this judgment. .;