Ram Labhaya, J.
1. This appeal under Section 417, Cr. P.C. is directed against an order of acquittal of the respondent. The learned Additional Sessions Judge acquitted him on the ground that he was a public servant and sanction for his prosecution under Section 197, Criminal P.C. was necessary. This sanction was not proved to have been obtained and therefore the order of conviction could not stand. He did not enter into the merits of the case and did not record any finding as to whether the charges against the accused stood substantiated.
2. The accused was tried with a charge under two heads. He was found guilty under Sections 409 and 471 and convicted under both heads of the charge. He was sentenced to rigorous imprisonment for one year and to a fine of Rs. 500 in default to rigorous imprisonment for another six months under Section 409, He was also sentenced to rigorous imprisonment for one year under Section 471, Penal Code. The two sentences of imprisonment were ordered to run concurrently.
3. The prosecution case was that Sayadur Rahman, accused was an Assistant Agricultural Inspector at Gauhati. He received a sum of Rs. 1,050/- from the District Agricultural Officer out of the Government Fund for the purchase of paddy seeds. He bought paddy from Safayatulla, P. W. on two occasions. On the first occasion on 6th Falgoon he purchased 75 maunds at the rate of Rs. 4/12/- per maund for Rs. 356/4/-. On the second occasion on 15th Falgoon he purchased 40 maunds and a half at the rate of Rs. 4/11/- for Rs. 189/12/-.
He also purchased 25 maunds of paddy from Udai Deka, P. W. at the rate of Rs. 4/10/- per maund for Rs. 110/10/-. It is also said that these Kellers of paddy did not issue any receipts for the price paid to them. The accused submitted two false vouchers Exs. 1 and 3 for Rs. 370/- and Rs. 750/-. They purported to have been given to him by the two sellers of paddy in respect of the paddy purchased from them. In these two vouchers the rate at which paddy was said to have been purchased is shown as Rs. 6/- per maund. The allegation is that by showing higher rate of purchase in the two vouchers the accused misappropriated a sum of Rs. 388/6/- out of the sum entrusted to him for the purchase of paddy.
He also used forged receipts knowing them to be false documents in support of his false claim. The defence was that paddy was purchased from the two prosecution witnesses Safait and Udai on different dates at varying rates. 75 maunds were purchased from Safait at the rate of Rs. 4/10/- and 50 maunds at the rate of R.s. 4/11/- & 50 maunds were purchased from Udai at the rate of Rs. 4/10/-. The receipt of Rs. 1,050/- from the District Agricultural Officer was admitted.
It would be noticed that the rate at which the paddy was shown to have been purchased was Rs. 6/- per manud in the two vouchers. At the trial the rates on which paddy is shown to have been purchased varied from Rs. 4/10/- to Rs. 4/12/-ahead. The maximum rate was Rs- 4/12/-. The total amount would be accounted for if the quantities of paddy shown in the vouchers had been purchased at the rate of Rs. 6 per maund. The whole amount of Rs. 1,050/- would then be needed for payment of the price of paddy purchased. The accused has not been able to support the entries in the vouchers as regards rates.
At the trial he admitted that paddy was purchased at lower rates. The result is that at these rates there was a sum of Rs. 228 which he had to account for. In regard to this sum of Rs. 228 his case was that the sum represented transport charges and though the vouchers may be inaccurate, there was no dishonesty and in the absence of any dishonest intention there would be no offence either under Section 471 or under Section 409, Penal Code, it being a necessary ingredient of both the offences,
4. It may be noticed that apart from the rates there is some difference in regard to the quantities purchased from the two prosecution witnesses between the prosecution version on the one side and defence version on the other. The prosecution case is that the accused purchased from Safait about 115 maunds while the case of the accused is that 125 inaunds were purchased from the firm.
In the case of Udai also there is the conflict between the two versions. The prosecution case is that only 25 maunds were purchased from Udai while the statement of the accused is that 50 maunds were purchased from him.
5. The learned Magistrate found that so far as Udai is concerned the prosecution case that only 25 maunds were purchased from him and not 50 maunds, was not proved. He has given very good reasons for coming to this finding. He has observed that the three witnesses deposed some seven years after the transaction and their statements are not supported by any documentary evidence. They have no accounts. They admitted that at the time when the accused purchased paddy from them they had sold some few thousand maunds of paddy.
In these circumstances their statements from memory after the lapse of some seven years were not regarded as adequate testimony for a finding that only 25 maunds were purchased from Udai. The benefit of reasonable doubt was given to the accused so far as this part of the case is concerned. It was thus found that the accused shall be deemed to have purchased 50 maunds from Udai. There is no dispute as regards rates so far as this transaction is concerned.
6. In regard to purchases from Safait the finding arrived at by the learned Magistrate is that only 115/1/2 maunds of paddy were purchased from him and not 125 maunds as alleged by the accused. He relied on the statement of Safait which was supported by his account books. He therefore found that the accused accounted for the sum which represented the price of 115/1/2 maunds at the rates stated by Safait the witness, which he could support from entries in his account books.
There would therefore be a difference of about Rs. 44/- so far as purchases from Safait are concerned and this has not been explained. In regard to the item of Rs. 228 which was alleged to have been spent on transport, the learned Magistrate came to the conclusion that there was no proof that this sum was spent on the carriage of paddy purchased. His finding therefore was that the charge under both heads had been fully substantiated by the prosecution evidence against the accused.
7. The learned Government Advocate has urged that the order of acquittal cannot stand as the learned Judge has taken an apparently erroneous view of the law in holding that, sanction for the prosecution of the accused was necessary. It is true that the accused is a public servant. But he points out that sanction for the prosecution of every public servant is not required.
Section 197 lays down that in cases where a public servant is not removable from his office except with the sanction of the State Government or the Central Government sanction for his prosecution, would be needed from the appropriate authority if the, offence for which he is sought to be prosecuted has been committed by him while acting or purporting to act in the discharge of his official duty.
No Court can take cognizance of such an offence against the public servant where his case is covered by Section 197. The learned Additional Sessions Judge when dealing with this point observed that 'nowhere the prosecution has made any attempt to show that it has obtained necessary sanction to prosecute the accused-appellant who is an employee under he Agricultural Department of the State Government and that the accused-appellant is a public servant is not denied. The learned Public Prosecutor has conceded to this view. Perhaps through oversight the prosecution failed to bring any evidence to establish the fact that a necessary sanction was obtained from the authority.'
It appears that the learned Judge was under a complete misapprehension as to the requirements of Section 197 and the learned Public Prosecutor also shared that misapprehension. It is possible that the Public Prosecutor was off the rails and the learned Judge followed him when he conceded that sanction was necessary and that there was no proof that it had been obtained. A reference to Section 197, Criminal P.C. would have sufficed for the discovery that the Court had to see whether the officer could not be removed from his office except with the sanction of the State Government.
It is only then that Section 197 would have applied. The second thing to be seen was whether it was a case of offences which were committed by the public servant acting or purporting to act in the discharge of his public duties. Both these aspects of the matter have completely escaped consideration. Mr. Goswami the learned Government Advocate has cited authorities in support of his contention that the mere fact that an accused is a public servant is not enough for the application of Section 197.
The contention is so obviously correct that it is not necessary to refer to any authorities on this point. Mr. Ahmed, the learned Counsel for the respondent has frankly stated that the order of acquittal could not be supported on the ground on which it is based. He is unable to contend that the accused was not removable from his office except with the sanction of the Government of State.
Mr. Goswami has referred us to the provisions in the Fundamental Rules showing that the appointing authority in his case was the Director of Agriculture. There is no specific provision in the Rules specifying any authority that could remove or dismiss an agricultural assistant like the accused. The presumption Under Section 18, Assam General Clauses Act therefore would be that the appointing authority is also the authority that could remove him. Since the accused was removable from his office by the Director of Agriculture, Section 197, Criminal P.C. could not apply. The order of acquittal therefore has to be set aside, being clearly erroneous.
8. As observed above the learned Additional Sessions Judge has not considered the case on its merits and he has given no findings on the question of guilt or innocence of the accused. Mr. Ahmed, however, has tried to support the order on merits. His contention is that the entire sum of Rs. l,050/-which the accused admitted to have received has been fully accounted for, considering that a sum of Rs. 228/- was spent on transport.
The rest of the money had been paid to the two persons Safait and Udai from whom paddy was purchased and therefore the case lacks the necessary element of fraud or dishonesty without which thene cculd be no conviction under any section of the Indian Penal Code.
9. We have heard Mr. Ahmed at great length, He has taken us through the evidence. In regard to the quantity said to have been purchased from Safait we have got only the testimony of Safait on the point. It appears from the prosecution evidence that when the paddy was being purchased by the accused, he was being assisted by one Ganesh, Safait's books clearly show that the quantity purchased on two occasions from him was 75 maunds plus 40/1/2 maunds.
It does not come to the quantity stated by the accused. He has got no evidence in support of his allegation. In the absence of any evidence from his side, the learned Magistrate had no option but to accept the testimony of Safait which received support from his books of account. Even now the learned Counsel for the accused has not been able to give any good reasons why Safait's testimony may be discarded. He had absolutely no motive for a false charge.
He had no reasons to be partial to the prosecution or hostile to the accused. He has no doubt given evidence some seven years after the occurrence but his statement receives full support from his account-books. Therefore in regard to this finding we find absolutely no reason to differ from the learned Magistrate. The result of the finding is that a sum of Rs. 44 remains unaccounted for in regard to purchases from Safait.
10. The only other point to be considered is whether the sum of Rs. 228 has been accounted for which even on the showing of the accused was not spent in purchasing paddy. This item according to him was spent on transport. Now so far as this is concerned the circumstances which emerge from evidence are as follows:
(1) The allegation of the accused that a sum of Rs. 228 represented transport charges is contradicted by his own vouchers. In the vouchers he stated that he purchased paddy at the rate of Rs. 6/- and the quantities said to have been purchased at that rate would require Rs. 1,050/- as the price of the paddy, leaving nothing for transport.
In other words, his defence at this stage is inconsistent with vouchers which ho himself submitted to the Government when originally accounting for the sum of Rs. 1,050/- that he had received. He had to put in receipts or vouchers showing how it was spent. His disbursement as shown in these vouchers conflicts with his defence.
(2) He does state that Rs. 228 were spent on transport. Assuming that some amount was spent on transport it was for him to claim that amount. He did not prefer any claim for it till 1950 when this criminal proceeding against him was initiated.
(3) He has not made any effort at the trial to prove his statement that the entire sum of Rs. 228 or any part of it was paid to anyone as transport charges. From his statement it appears that the item consists of expenditure under three heads. Rs. 58/- are said to have been paid to coolies, Rs. 16/6/6 were ferry charges, and Rs. 153/3/6 represented the cost of transport. But there is no evidence on the record to show that any sura was spent in the manner alleged.
The accused was put to the necessity of explaining this amount. Ho admitted that the rate of Rs. 6/- shown in the vouchers was not collect. When the rate was reduced to figures ranging between Rs. 4/10/- to Rs. 4/12/- the difference of Rs. 228 arose. This had to be explained. An explanation is offered but there is absolutely no proof to support it. His vouchers left it open to him to claim from the Government transport charges if there were any. The amount of Rs. 1,050/- is accounted for fully by the vouchers without bringing in any transport charges.
In the absence of any proof it cannot be said that the entire sum represented transport charges & the mere statement of the accused on the point does not explain away this item. Even if there had been no prosecution, it would have been necessary for the accused to put in receipts or vouchers before his own department would have accepted payment of Rs. 228/- as charges for transport.
11. Assuming that the item of Rs. 228 stands explained on the statement of the accused, there is still the item of Rs. 44 or so, for which there is no explanation. If the quantity purchased from Safayat was not 125 maunds as alleged by the accused, there is still some money owing to the Government which remains unaccounted for. In these circumstances it is certain that a sum of money out of Rs. 1,050/- which was entrusted to him has been misappropriated and still remains unaccounted for. The vouchers are admittedly false. The rate shown therein is not correct. The voucher of Safayat also does not mention the correct quantity.
There are endorsements on these vouchers by the accused that the amounts had been paid by him. These entries in the vouchers are undeniably false. The prosecution witnesses deny having signed the receipts. The falsity and fabrication of the receipts therefore are obvious and those false receipts were needed to cover up some money which was not spent on Government account. Whatever that exact amount may be the whole of the sum cannot be regarded as proved to have been spent for Government purposes.
At least Rs. 44 were not so spent. The two vouchers were known to be false and even forged. They were used as genuine. The dishonest intention was there and at least the price of 9/1/2 maunds said to have been purchased from Safayat has been misappropriated. This has been proved beyond any reasonable doubt. The item of transport charges also cannot be regarded as proved. In these circumstances both the charges stand fully proved. The propriety or the correctness of the convictions under both the heads is not assailable on any valid basis. The convictions therefore must stand.
12. In awarding sentence there is one important circumstance which the learned Magistrate omitted to consider. The accused in this ease is a public servant. He is said to have put in about twenty years of service. The conviction for offences under Sections 409 and 471 involves moral turpitude. In consequent/ of the order of conviction he would be removed, from Government service. He could not remain in it. This circumstance has a very important bearing on the question of sentence. The occurrence took place in the year 1947.
The complaint was lodged in 1950. The trial of the case has been very protracted involving considerable embarrassment to the accused. In these circumstances we think that the sentences of six months rigorous imprisonment under each head of the charge would meet the requirements of the case and we order that it be reduced accordingly. The two sentences of imprisonment shall run concurrently. So far as sentence of fine is concerned, it is also reduced to a sum of Rs. 300/-. In default of payment of fine the accused shall undergo rigorous imprisonment for another period of three months. The appeal is allowed. The order of acquittal is set aside1. The order of the learned Magistrate convicting the accused under both heads of the charge is upheld with the aforesaid modifications in regard. to sentences.
Sarjoo Prosad, C.J.
13. I agree.