B.L. Hansaria, J.
1. The Deputy Commissioner, Kohima, received a cheque for Rs. 39,680/- dated 22-3-1968. It was issued by the Border Road Task Force and was meant for disbursement among ex-soldiers. The appellant was working as Secretary of District Soldiers' Sailors' & Airmen's Board, Kohima District, at the relevant time. The cheque was therefore handed over to him. The prosecution case is that the appellant obtained the money on 30-3-68, but instead of disbursing the money to the persons for whom it was meant, he misappropriated the same. The matter came to light on receipt of some complaints from ex-soldiers to the Deputy Commissioner, who got the matter enquired by a Board of Enquiry headed by the Additional Deputy Commissioner. The Board was of the view that the present was a clear case of breach of trust and so proper action may be taken against the appellant. The police was informed about the matter on 23rd July, 1969 and the charge-sheet was submitted on 30th May, 1970. In the trial that ensued, the prosecution examined nine witnesses and the defence four. One of the PWs had been examined as a Court witness also. The learned trial court being satisfied about the guilt of the appellant has convicted him Under Section 409, IPC and has awarded a sentence of R. I. for three years and a fine of Rs. 15,000/-, in default, to R. I. for further the years.
2. Shri Sarma has advanced these submissions before me :1) The prosecution was bad in the eye of law as the same had been launched without sanction contemplated by Section 197(1) of the old Cr.PC (2) There is no evidence of entrustment of the money to the appellant; and (3) evidence of misappropriation is totally lacking. As some reliance has been placed by the learned trial court on the confessional statement of the appellant, a submission has also been made that the statement recorded on 30-9-1969 by PW 1 was not really confessional in nature and as such should not have been admitted against the appellant.
3. The point relating to sanction has no force because under the aforesaid section sanction is required inter alia if an offence had been committed by a public servant while acting or purporting to act in the discharge of his official duty. It cannot be said, as already observed by me in the order passed on 3-4-1981, that the appellant was discharging his official duty in misappropriating the amount, if it was so.
4. The submission relating to entrustment cannot also be accepted as this is amply borne out by the evidence on record. PW 2, who was the Cashier of the State Bank of India and was reexamined as CW 1, has clearly stated that the amount in question was paid to the appellant. This had been done on the strength of an authority letter issued by the Deputy Commissioner which was marked as Ext. P-8 in the case. This document bears the endorsement 'Received Payment' in the hand of the appellant and is dated 30-3-1968. In his examination Under Section 364 of the old Cr.P.C. the appellant had admitted receipt of the cheque in question by him, though he had denied that he had obtained the amount. But on the face of the aforesaid contemporary document and the evidence on record, no doubt can be entertained on this score.
5. The main contention of Shri Sarma relates to the question that there is no evidence of misappropriation, According to the learned Counsel, to bring home guilt Under Section 409, I. P. C, proof of entrustment is not enough as the factum of misappropriation of the entrusted property has also to be proved. I am referred in this connection to a recent decision of the Supreme Court in Janeswar v. State of U. P. : AIR1981SC1646 . It has been recognised in this case that there may be even circumstantial evidence to show that a person had misappropriated the property entrusted to him. The view taken by the High Court that as the appellant had not given any explanation for the shortage of articles in the godowns, he must be presumed to have misappropriated the articles, was not accepted by the Supreme Court as the godowns were open and accessible to all and sundry because of which the possibility of the goods having been pilfered or stolen away by others could not be excluded. The learned Public Prosecutor, Nagaland, contends that this decision has no application to the facts of the case as apparently nobody else than the present appellant had access or domain over the money which had been received by him. This being the position, it was for the appellant, according to the learned Public Prosecutor to explain or account as to how he had dealt with the money which he had received, but which he failed. As such, a legal inference could and should be drawn, submits the learned public prosecutor, that the appellant had misappropriated the money. In this connection he has referred to J. M. Desai v. State of Bombay : 3SCR319 , wherein it was stated that (para 4 :..to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or eonversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved may in the light of other circumstances, justifiable lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made.
6. In view of these pronouncements by the Supreme Court, I do not propose to dwell upon the two single bench decisions referred by Shri Sarma, the same being Ghulam Haider v. Emperor AIR 1938 Lah 634:1938 39 Cri LJ 851, and State of H. P. v. Mirza Hussain , in which the broad view taken was that failure to account is not sufficient in this regard, though it may go a long way towards the proof of misappropriation, but not the whole way.
7. Let it be seen what is the explanation of the appellant and what are the attending circumstances of the case. In the confession which was recorded by P- W. I. it was stated that the amount was withheld from payment as the payees were not readily known and so the amount was kept by the appellant. After sometime, one house adjacent to the office was gutted by fire and the office articles had to be removed. In doing so, the entire amount was found missing, but the matter was not brought to the notice of the police as some of the relatives came to be suspected. There is no evidence of any fire in a building near the office. What the appellant rather stated in his examination Under Section 364, Cr, P. C. (old, was that a fire had taken place in the house adjacent to their house in May or June, 1969. This is a departure from the earlier statement. There is no evidence about this as well. The four DWs who were examined in the case have deposed about the case of the appellant that a sum of Rs. 9,500/- was paid to the police following the arrest of the appellant on 3-7-1969, as it was told that the appellant would be released on his paying this sum of money. This has nothing to do with the explanation about the use or disbursement of the money which the appellant received. Thus, there is nothing before this Court to accept the explanation put forward by the appellant.
8. As to the attending circumstances, the one which would be mentioned is that the appellant while he was acting as the Secretary of the Board in question had not maintained proper account books. The Cash Book which was seized and which was one of the documents examined by the Board of Enquiry and which was subsequently exhibited as Ext. R (I) after the case sent back to the Additional Deputy Commissioner to record additional evidence as per order dated 22-4-1981, shows that the first entry in the Cash Book is of 2-4-1969, whereas the amount in question was received by the appellant on 30-3-1968. From the report of the Board of Enquiry, Ext. E also this is borne out. There is thus nothing to show that the appellant had even entered the amount received by him in the Cash Book required to be maintained by him. From the materials on record, there is nothing even to suggest that anybody else than the appellant had at any point of time any dominion or control over the money after the same had been received by the appellant from the State Bank of India.
9. Thus, the present is a case where the appellant has failed to account for the money received by him. The explanation which he has purportedly given is also one to believe which there is nothing on record. An inference of misappropriation with dishonest intention has therefore to be drawn. Accordingly, I would uphold the conviction of the appellant Under Section 409, IPC
10. Coming to the question of sentence, it is found from records that the appellant has been inside the iron bars and stone walls for about seven months in all at three different points of time. Shri Sarma submits that keeping in view of fact that the occurrence is of 1969 and a sum of Rs. 9,500/- was in any case paid by the appellant, he may not be sent back to prison. I have given my due consideration to this submission and I am inclined to agree with it partly only in the sense that the long gap has thinned out the deterrent edge of the punishment to some extent. In such cases, too heavy a term of imprisonment may perhaps be avoided if it be seen that the money misappropriated comes back to the coffer of the Government. I would accordingly modify the sentence of incarceration as awarded to the period of imprisonment already undergone, but would enhance the fine to a sum of Rs. 30,000/- (Rupees thirty thousand)(keeping in view the fact that a sum of Rs. 9,500/- had already been paid, in default to R. I. for two and a half years.
11. Subject to this modification in sentence, the appeal stands dismissed.