IN RE: BASAWARAJASWAMI Vs.

JUDGEMENT

(1.) THE accused Basavarajaswamy who has been tried in Sessions Case No. 70/8/1964 in the Court of the Sessions Judge, Gulbarga, is convicted for the offences under Sections 467 and 409 of the Indian Penal Code, and also under Section 52 of the Indian Post Offices Act. He was sentenced for the offences of forgery and criminal misappropriation under Sections 467 and 409 of the Indian Penal Code, to suffer rigorous imprisonment for a term of one year and to pay a fine of Rs 1,000 in default to undergo it further term of rigorous imprisonment for three months under each count The Sessions Judge did not award any sentence under Section 52 of the Indian Post Office Act. The substantive sentences awarded were ordered to run concurrently.

(2.) BRIEFLY stated, the prosecution case is that the Basavarajaswamy was the Branch post Master of the Chintapally Branch Post Office in October. 1959 Mallikarjunappa (P.W. 1) gent a money order of an amount of Rs. 98 from Harsur Branch Post Office october 16, 1958. to his cousin brother. Amrutha Rao. who has been examined in the case as P.W. 2, resident of Rayakodi village which is under the branch post office of Chintapally in which the accused was the Branch Post Master. It was the case of the prosecution that the money order was transmitted from Harsur Post Office to Mahagaon Branch Post Office and from Mahagaon Branch Post Office to Sedum Head Post Office front where it had been transmitted to Chintapally Branch Post Office. The accused who was the Branch Post Master at Chintapally received the same on October 21, 1959. It was further the case of the prosecution that the accused made entries in the Branch Post Office Journal. Exhibit P -8 to the effect that the amount of the money order has been paid by him to the payee and has forged the documents which have been marked as Exs P -7, P -5, P -6 and P -8 in the case The prosecution further stated that Malkajappa. P W 1 when went to Raikodi on his personal work, contacted Amrita -raya. P.W. 2. and enquired him about the receipt of the money order which he had sent to him from Harsur. P.W 2 told him that he did not receive it. On this both of them went |o Chintapalli Post Office. where the accused was working as Brunch Post Master. When enquired the accused told them that he did receive the money order but as it did not bear the postal number, he sent it back to the Head Post Office (Sedum) which he was expecting within 2 or 3 days and asked them to come after 2 or 3 days P.W. 1 stated that when they went to Chintapalli Post Office after 2 or 3 days, they found that the accused was not there in the Post Office and instead of him, one Gurupadappa who has been examined as P.W 3 in the rase was in the Post Office. He told him that the accused had proceeded on leave So P.W 1, Malkajappa went back to his village He found money order receipt, Ex. P -3, in his house, hearing the date on it 29 -10 -69 and the signature of the payee Amritappa, P.W 2 On seeing the receipt, he suspected that the signature on the same was not of Amritaraya He then made a complaint. Ex, P -4. to the Superintendent of Post Offices who sent the papers to the Postal Inspector P W 8, Shankaranna. for enquiry After due enquiry, the Postal Inspector lodged a complaint (Ex P -9) to the Police Sub -Inspector. Sulepet. who is examined as P.W 9 in the case After completion of the investigation the Police filed charge -sheet against the accused before the Magistrate at Chincholi on 11 -3 -1962 The Magistrate conducted the preliminary enquiry and after completion of the same committed the case to the Sessions Court, Gulbarga. The accused has been charged with having committed offences punishable under Sections 467, 409. I.P.C., and also under Section 52 of the Indian Post Office Act. The accused pleaded not guilty He also pleaded alibi He stated in his statement under Section 342 of the Code of Criminal Procedure that he went away from Chintapally on 27th October. 1959. handing over charge of the Branch Post Office at Chintapalli to Gurupadappa and he did not know what happened after 27th October. 1959, in his absence The Sessions Judge, on the material placed before him, came to the conclusion that the offences charged had been brought home to the accused and convicted the accused for the offences of forgery punishable under Section 467 and criminal breach of trust punishable under Section 409 of the Indian Penal Code and also under Section 52 of the Indian Post Office Act. He sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs 1,000 and In default to further undergo rigorous imprisonment for a period of 3 months for each of the 2 offences under Sections 467 and 409 of Indian Penal Code He did not pass any sentence under Section 52 of the Indian Post Office Act because according to him the offence under Section 52 was the same as that of the offence under Section 409 of the Indian Penal Code The substantive sentences awarded under both the counts were ordered to run concurrently It is against these convictions and sentences that the accused has preferred this appeal

(3.) THESE circumstances go in support of the prosecution case P.W. 6, Ahmed Buran, has stated that he was accustomed to see the handwriting and the signature of the accused and nothing has been brought out during the course of his cross -examination to impeach his veracity. He has stated in definite terms that he knew the handwriting of the accused very well further no question was put to the investigating officer for his explanation for not sending the documents to the expert. Hence, there can be no occasion for any adverse inference either Adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been, and therefore, no question of not presenting that evidence arises in the case, and no adverse inference can be drawn under Section 114, illustration (g) of the Evidence Act