1. The accused was convicted under Sections 408, 467 and 477A of the Indian Penal Code, and has been sentenced for each offence to suffer six months' rigorous imprisonment, the sentences to run concurrently.
2. The facts alleged against him are that, he, being a supervisor of a society called the Shirpur Supervising Union, which, we understand, is connected with the co-operative movement, on April 11,1934, misappropriated and converted to his own use Rs. 2, which represented the pay of a woman, who swept and cleaned his office, and that he thereby committed an offence under Section 408, Indian Penal Code; and further that at the same time and date he forged or caused to be affixed to the receipt of the said sweeper woman a thumb impression, which is not of that person and thereby committed a forgery punishable under Section 467, Indian Penal Code, and finally that he defrauded the Union by making a false debit entry to the effect that Laxmibai had been paid Rs. 2 when no such payment had been made and thereby committed an offence under Section 477-A, Indian Penal Code.
3. On the evidence, we think that the case for the prosecution has been made out. Laxmibai has been called and has sworn that she had not received any payment for doing the work in question for about eighteen months. An expert from the Thumb Impression Bureau had also been called, and he proved, as found by the learned Sessions Judge, that; the thumb impression purporting to be that of Laxmibai against the debit entry of Rs. 2, on April 11, 1932, is not hers, but that of a young nephew of the accused, whose thumb impression has been taken and identified as similar in twelve different points to the one on the register in question. The accused's explanation of this thumb impression is that it was caused to be affixed by his nephew at the instance of a person called Shivram. Shivram is a witness in the case, and has been cross-examined, and he denied making the boy put this thumb impression on the register. There is thus no doubt that the entry of Rs. 2 purporting to have been paid to Laxmibai is a false one. It is in the appellant's hand-writing and the certificate that the thumb impression below it is that of Laxmibai is also admittedly in the accused's hand-writing. The appellant also made a statement when the auditor Mr. Bhir first came to examine his accounts. In this statement which amounts to confession the accused said:
Two rupees have been debited every month from the Union for the maid servant Laxmibai widow of Maharu for cleaning and applying cow-dung to the office. She has actually been paid at this rate for some days. Afterwards as she had more work she ceased to come for cleaning and applying cow-dung. While in employment we used to give her one Lugade at the time of Divali. She was not paid for her work from January 1932 to May. Her pay for two to four months even before January 1932 has not yet been paid. Therein Rs. 2 have been debited to Laxmibai's name on each of the four dates viz. 1.2.1932 and so on, the total being Rs. 8 and receipts have been obtained in their respect. In the column of receipts I myself have written the words 'Laxmibai bhratar Maharu's thumb mark'. These four thumb marks are not of that woman but of one of my brother's two sons. In order that there should be no audit objection regarding thumb impressions I took the thumb marks of the abovementioned boy.
4. It was suggested at the trial that this statement was inadmissible under Section 24 of the Indian Evidence Act on the ground that it had been obtained by a person in authority, that is, the auditor Mr. Bhir, by means of a threat or promise. But Mr. Bhir, who was closely examined on the point, has denied anything of the kind, and the learned Sessions Judge has believed him and has admitted the document in evidence. We think that he was right in so doing. The facts, therefore, are that the accused did not pay the amount of Rs. 2 to Laxmibai, that he nevertheless debited the society, which employed him, with the amount, and that the accused made what was clearly a false entry in that it did not bear the thumb impression of Laxmibai which it purported to do, and which is certified to be hers by the accused's own hand-writing, and so made a false document.
5. Mr. O'Gorman has argued on behalf of the appellant that, admitting all these facts, nevertheless, no offence has been committed. His argument is based on the fact that according to him there has been neither wrongful gain to the appellant, nor wrongful loss to any other person, and he relies on Sanjiv Ratanappa v. Emperor (1932) I.L.R. 56 Bom. 488 : S.C. 34 Bom. L.R. 1090 where the question of wrongful loss and wrongful gain in connection with forgery is discussed by Baker J. That case, however, was concerned with a forged police diary which did not involve any question of money, forgery having been committed by the Sub-Inspector of Police to conceal certain irregularities in his investigation. Another case referred to was Emperor v. Kashinath Ramchandra Davari (1931) Cri. A. No. 525 of 1930 which is not published, but to which I was a party. The matter involved there was an alteration in order to conceal a breach of a departmental rule, which prevented the village accountant from keeping more than Rs. 50 in his own charge for more than five days. He credited two or three small sums later than the date on which they had been received, and the intention there clearly was not to cause wrongful loss to Government since the amount was so small that in detaining the money the intention could only be to avoid a breach of the departmental rule. Mr. O'Gorman also relies on Sir James Stephen's definition of 'fraud' in his History of the Criminal Law of England, Vol. II, p. 122. The definition is as follows:
A practically conclusive test as to the fraudulent character of a deception for criminal purposes is this: Did the author of the deceit derive any advantage from it which he could not have had if the truth had been known? If so, it is hardly possible that that advantage should not have had an equivalent in loss, or risk of loss, to some one else; and if so, there was fraud.
6. The assessors have suggested that what the appellant really did was, after Laxmibai ceased to work for the society, to continue to debit the society with Rs. 2 and to get the work of cleaning his office room done by his own wife or other female relative, the reason for the deception being that he could not be expected to admit that his woman-kind had performed so menial a task, and that since the work for which the Union was debited was actually done in this way, the Union suffered no loss, though the appellant might have added Rs. 2 to his monthly family income. It seems to us that the appellant cannot evade his guilt by means of this argument. It was the accused's own case that Laxmibai had all along done the work and received payment, and there is nothing to show that appellant, or his wife, or his sister-in-law, actually did the work. The work might well not have been done, except occasionally, or somebody may have been paid much less than the Rs. 2 debited to the Union for doing it, say, twice a week instead of every day. Had the accused's case been as suggested by the assessors, it might have been possible to hold in that way, but in fact it was never his case, and it was only a surmise made by the assessors probable perhaps, but nevertheless only a guess. We think that there is no doubt that the accused did obtain a gain of Rs. 2 to his family income and that it was in fact wrongful, for it was done in a secret manner, and not in the way which the Union had authorised him to spend money, that is to employ an ordinary sweeper to do it. We think that the necessary element of fraud implying wrongful gain to himself and wrongful loss to the society was involved in this case. We hold that technically he has been properly convicted under the sections in question. The fraud, however, was of a very small sum, and probably, in the popular conception, as evidenced by the opinion of the assessors here, it was not considered a case of fraud, since although the accused misappropriated the money he actually got the work done in some way or other. We think that in the circumstances the sentence of six months' imprisonment passed on the accused was unnecessarily harsh because he has already been made to pay the amount alleged to have been misappropriated in respect of Laxmibai's wages over eighteen months, that is, Rs. 36, and has also been dismissed from the employment that he was in. In the circumstances, we think that we should reduce the period of imprisonment inflicted to that already suffered.
7. We confirm the convictions but reduce the sentence to the period already suffered and direct that accused be discharged. The bail bond should be cancelled.