K.S. Hegde, J.
1. This is an appeal against the conviction and sentence of the appellant in Bangalore Sessions Case No. 4 of 1957 on the file of the learned Assistant Sessions Judge, Bangalore, wherein the appellant was tried and convicted for offences under Sections 409 and 477A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years under each count, but the two sentences, were ordered to run concurrently.
2. Briefly stated, the prosecution case is that the accused who was the Treasurer in the State Huzur Treasury at Bangalore, while being in custody of the State funds, embezzled a sum of Rs. 1,10,161/- in the month of June 1953. It is said that he embezzled a sum of Rs. 75,000/- on 1.6.1953, Rs. 5,000/- on 22.6.1953 Rs. 10,000/- on 24.6.1953, Rs. 5,000/- on 26.6.1953 Rs. 10,000/-on 27.6.1953 and Rs. 5,000/- on 30.6.1953. The further case for the prosecution is that to cover up those embezzlements, he falsified the relevant account books, namely, the Double Lock Register (Ex. P-79), Single Lock Register (Ex. P-83) and the Treasurer's Balance Sheet Register (Ex. P-73), by making false entries therein.
3. The plea of the accused is that if there was any defalcation he was not responsible for the same; he was not in custody of the cash and currency in the treasury; the treasury was under the charge of the Treasury Officer (P.W. 13 - N.D. Venkatasubbiah) who was in custody of the money therein; it was the Treasury Officer who was handling the amount in the Treasury and therefore if there was any defalcation or defalcations during the charge period. P.W. 13 must be responsible for the same. He admits having written up Exhibits P-73, P-83 and P-79. But he says that Exhibit P-79 which under the rules had to be maintained by the Treasury Officer was written by him to the dictation of the Treasury Officer, He says that he is not aware whether the entries made therein, are correct or not. According to him, the entries in Ex. P-83 and Ex. P-73 were mostly copied from Ex. P-79; hence he is not responsible if there are any incorrect entries in those books. He denies having made those entries with the intention of defrauding the State. Coming to the first charge framed against him he denies that there was any misappropriation during the charge period. He also raised some legal pleas which will be set out and considered hereinafter.
4. The case against the accused rests entirely on circumstantial evidence. Hence, we must analyse the circumstances appearing against him, find out how far each one of those circumstances is established and see whether the proved circumstances conclusively bring home the guilt to the accused.
5. Considerable evidence was adduced by the prosecution to show that false entries similar to those made during the charge period were made by the accused during the period from 12.6.1952 till 30.5.1953. On the basis of these entries, the prosecution seeks to build up their case that the accused was temporarily misappropriating certain sums of money in the Treasury from 12.6.1952 onwards but he was reimbursing the misappropriated sums at the end of every month before the monthly inspection of the Treasury by the Deputy Commissioner or his representative, took place. It is said on behalf of the prosecution that the shortage ultimately found was entirely the result of the accused's embezzlements in die month of June 1953. The justification put forward by the prosecution for adducing evidence of similar transactions is that the same is necessary to establish that the false entries in Exhibits P-73, P-79 and P-83, which are the subject-matter of the second charge, were made by the accused with the required knowledge or intention. The defence has objected to this evidence on the ground that the same is inadmissible in law.
6. Yet another plea taken by the accused is that as he is a public servant who is not removable from his office save by or with the sanction of the State Government and as the alleged offences for which he is prosecuted, even assuming the prosecution case to be true, were committed by him while acting or purporting to act in the discharge of his official duties could not have been taken cognizance of without the sanction of the State Government as required by Section 197(1) Cr.P.C.
7. It was urged on behalf of the accused that the trial is vitiated, because of the contraventions of the provisions contained in Chapter XIX Cri.P.C. resulting in failure of justice.
8. As mentioned earlier, the evidence adduced against the accused is circumstantial in nature. The circumstances gatherable from the evidence or record are (1) there was shortage of Rs. 1,10,161/- in the State Huzur Treasury on 30.6.1953; (2) the accused and the Treasury Officer were jointly entrusted with the amount in the Treasury; (3) the accused alone was handling the amount in the strong room and hence, he had every opportunity to commit the embezzlements in question; (4) he made false entries in Exhibits P-73, P-79 and P-83; (5) in Ex. P-3 payees receipt written up by him on 29.6.1953 it is mentioned that the amount that would be transferred from the Treasury to the-Bank was Rs. 7,77,619-7-7, whereas in the statement given by him at the Bank (Ex. P-5) he had shown that the amount sent was Rs. 6,67,619-7-7; (6) he was absconding from 4.7.1953 till about the middle of August 1953; (7) he was a punter in the horse races.
9. The contention that the evidence relating? to false entries said to have been made by the accused in Exhibits P-73, P-79, and P-83 on or before 30.5.1953 is inadmissible in evidence overlooks the provisions contained in Sections 14 and 15 of the Indian Evidence Act. The evidence relating to those entries are admissible to show that the false entries or falsification of the accounts said to have been made by the accused during the charge period were made wilfully with an intentions to defraud the State. Evidence of that character is clearly admissible; under Section 15 when the acts in questions form part of series of similar occurrences evidence of similar acts, is admissible to prove the intention or knowledge of the person and to rebut the defence of accident, mistake, or the same having been done without the required knowledge or intention. The law on the point was laid down in Amritalal Hazra v. Emperor ILR 42 Cal 957 : AIR 1915 Cal 188 thus:
Facts similar to, but not part of the same-transaction as the main fact, are not, in general, admissible to prove either the occurrence of the main fact or the identity of its author. But evidence of similar facts although in general inadmissible to prove the main fact or the connection of the parties therewith, is receivable, after evidence aliunde on these points has been given to show the state of mind of the parties with regard to such fact; in other words evidence of similar facts may he received to prove a party's knowledge ok the nature of the main fact or transaction, or his intent with respect thereto. In general whenever it is necessary to rebut, even by anticipation the defence of accident, mistake, or other innocent condition of mind, evidence that the defendant has been concerned in a systematic course of conduct of the same specific kind as that in question may be given. To admit evidence under this head, however, the other acts tendered must be of the same specific kind as that in question and not of a different character, and acts tendered must also have been proximate in point of time to that in question.
The principle on which evidence of similar acts is admissible is, not to show because the accused has committed already some crimes, he would therefore be likely to commit another but to establish the animus of the act, for which he is charged and rebut by anticipation, the defence of ignorance accident, mistake, or innocent state of mind. In this case, it is not sufficient for the prosecution to prove that the entries which are the subject matter of the second charge are wrong entries and that they were made by the accused, the prosecution must go further and prove that those entries are false entries and the accused made those entries wilfully and with intent to defraud the State. Therefore the prosecution can prove similar instances to prove that the accused made the entries in question wilfully and with intent to defraud the State. Those instances can also be proved to rebut the accused's plea that he innocently made those entries at the behest of his superiors. But that evidence cannot be used to show that the accused was guilty of temporary misappropriations in past or to probabilise the charge levelled against him by proving his past bad conduct, if any. To the extent the trial Court has relied on that evidence in support of its finding that the accused was now and then temporarily misappropriating certain sums of money in the Treasury the finding in question is vitiated.
10. It was contended before the trial court and that contention was repeated before this Court that the prosecution of the accused is incompetent as no sanction to prosecute him had been obtained :as required by Section 197(1) Cr.P.C. which provision prescribes that 'when any public servant who 5s not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government concerned. Admittedly, no sanction to prosecute the accused has been obtained from the State Government which is the Government concerned in this case. It was urged on behalf of the prosecution, that the present case does not fall within the ambit of Section 197(1) as the accused is not a 'public servant who is not removable from his office save by or with the sanction of the State Government' and further, the offences for which he is prosecuted cannot be said to have been committed by him 'while acting or purporting to act in the discharge of his official duty'.
11. The accused was first appointed as a Clerk on 4.8.1941. That position he held till he was appointed as the Treasurer of the State Huzur Treasury by the Government on the recommendation of the Comptroller on probation for a period of one year on a salary of Rs. 80/- per month as per the Government Order dated 11.9.1946 see Ex. P-252. He was confirmed by the Government with effect from 1.9.1947 see Ex. P-251.
12. It was urged on behalf of the accused that as he was appointed by the Government he could be removed only by the Government in view of Section 16 of the Mysore General Clauses Act, which says:
Where by any enactment a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.
This section merely lays down to the extent it is relevant for our present purpose that a power to appoint a person generally speaking includes power to remove him also. The true question for decision is whether on the date the case against the accused was taken cognizance of, the accused was not removable from his office 'save by or with the sanction of the State Government.' As per the Order of the Government dated 8.7.1942, power to make appointments and promotions whether permanent, temporary or officiating, to non gazette posts, the maximum pay of which did not exceed Rs. 150/- was delegated to the heads of departments. As per the Government Order dated 1.6.1948 the maximum pay stipulated in the Order dated 8.7.1042 was raised from Rs. 150/- to Rs. 180/-. Further, under Article 71 of the Mysore Service Regulations which came into force on 1.7.1953 and which was issued under the proviso to Article 309 read with Article 313 of the Constitution, Heads of major departments specified in Appendix J thereto were 'empowered to make all appointments, and promotions including powers of dismissal of all non gazette staff.' The Comptroller of State Accounts Department is one of the heads of the departments mentioned in Appendix J (see item 18). In view of this regulation, it cannot be disputed that on or after 1.7.1953 the comptroller had power to appoint as well as to dismiss a Treasurer. For our present purpose, the relevant date is 21.1.1954, the date on which the case against the accused was taken cognizance of by the City Magistrate. On that date, as seen earlier, the accused could have been removed from service by the Comptroller. So on that date the accused was not a public servant 'who is not removable from his office save by or with the sanction of the State Government'. Hence no sanction of the State Government to prosecute him was necessary. Protection of Section 197 Cr.P.C. is not available to a public servant, whom lower authority has by law or order been empowered to remove. See Pichai Pillai v. Balasundara Mudaly AIR 1935 Mad 442. This view receives support from the decision of the Federal Court in Afzalur Rahman v. Emperor .
13. In view of my above conclusion, it is not necessary to consider the question whether the offences alleged to have been committed by the accused were committed 'while acting or purporting to act in the discharge of his official duty' though in view of the decision of the Federal Court in Hori Ram Singh v. Emperor there can be hardly any doubt that the alleged offence of falsification of accounts, for which the accused is charged and convicted under Section 477-A, I.P.C. on the very face of the accusation is an Offence committed by him 'while acting or purporting to act in the discharge of his official duty'. But, when we go to the first charge, the charge relating to criminal breach of trust, we get into a more controversial field. In view of the earlier finding that in this case no sanction of the State Government to prosecute is necessary, it will be a mere mental exercise to go into the question whether the present case falls within the rule laid down by the Federal Court in Hori Ram Singh's case and approved by the Judicial Committee of the Privy Council in H.H.B. Gill v. The King and in Phanindra Chandra v. The King or the rule laid down by the Supreme Court in Amrik Singh v. State of Pepsu (S) : 1955CriLJ865 . The decision of the Supreme Court in Matajog Dobey v. H.C. Bhari (S) : 28ITR941(SC) does not in any way run counter to the decision of the same Court in Amrik Singh's case (S) : 1955CriLJ865 . I do not think that the Supreme Court dissented from that view in Om Prakash v. State of U.P. (S) : 1957CriLJ575 .
14. It follows from what has been said above that the contention of the accused that the prosecution must fail for want of sanction cannot be sustained.
15. It was next urged that there are serious errors, omissions and irregularities in the charges framed; further there is misjoinder of charges and all these have occasioned a failure of justice.
16. We shall now examine how far this contention is correct.
17. The Committal Court framed the following two charges against the accused.
That you between 1.6.1953 and 30.6.1953 at Bangalore being a public servant namely treasurer, State Huzur Treasury, Bangalore, and in that capacity being entrusted with property to wit a sum of Rupees one lakh, ten thousand and one sixty-one (Rs. 1,10,161/-) committed criminal breach of trust with respect to that property, and that you thereby committed an offence punishable under Section 409 I.P.C. within the cognizance of the Court of Session:
That you between the said dates namely 1.6.53 and 30.6.1953 in particular on the following dates lively, 1.6.53, 22.6.53, 24.6.53, 26.6.53 and 27.6.53; you being treasurer at State Huzur Treasury, Bangalore wilfully and with intent to defraud Government and in order to cover the offence of criminal breach of trust committed by you, made false entries in the registers of accounts which were received by you on behalf of Government, namely, the Double Lock Register (Ex. P-15), Single Lock Register (Ex. P-17) and the Treasurer's Balance Sheet Register (Ex. P-14) and that you thereby committed an offence punishable under Section 477A of the Indian Penal Code within the cognizance of the Court of Session.
The second charge was altered by the learned Trial Judge and the altered charge reads:
That you between the said dates namely, 1.6.53 and 30.6.53 and at the same place being the Treasurer at State Huzur Treasury, Bangalore wilfully and with intent to defraud Government and in order to conceal the offence of criminal breach of trust committed by you falsified the account books of the Government, to wit the Double Lock Register (Ex. P-15) Single Lock Register (Ex. P-17) and the Treasurer's Balance Sheet Register (Ex. P-14) by making in them false entries and that you thereby committed an offence punishable under Section 477-A of the Indian Penal Code, within the cognizance of the Court of Session.
The second charge was substantially altered by the Trial Court. In the first place, the charge framed by the committal Court refers to false entries in Exhibits P-14, P-15 and P-17 (Same as Ex. P-73, P-79, and P-83) whereas the charge framed by the Trial Court refers to falsification of the account books, namely, Exhibits. P-73, P-79 and P-83. Secondly, the charge framed by the Committal Court specifically mentioned that the false entries in question had been made on the dates mentioned therein. Those particulars do not find a place in the charge framed by the Trial Court. But the evidence adduced shows that the falsification of Exhibits P-73, P-83 and P-79 was carried out by making false entries in those books on 1.6.1953, 22.6.1953, 24.6.1953, 26.6.1953 and 27.6.1953.
18. So far as the first charge is concerned, it was said that the prosecution has failed to establish that there was any misappropriation during the charge period namely, between 1.6.1953 and 30.6.1953. This contention is not relevant at this stage. We shall examine the correctness of that contention at a later stage.
19. As regards the second charge, it was said that there are several errors, omissions and irregularities in the same. As seen earlier, the second charge speaks of falsification of the account books between the dates 1.6.1953 and 30.6.1953. The question is whether such a charge is in accordance with Section 233 Cr.P.C. which requires that 'for every distinct offence of which any person is accused, there shall be a separate charge'. The prosecution version is that on 1.6.1953, 22.6.1953, 24.6.1953, 26.6.1953, and 27.6.1953 the accused misappropriated certain amounts and to cover those misappropriations, he made false entries in the Double Lock Register (Ex. P-79) Single Lock Register (Ex. P-83) and Treasurer's Balance Sheet Register (Ex. P-73). Falsification of accounts effected on a particular date, unless it is a part of another transaction, is undoubtedly a distinct offence and therefore a separate charge should have been framed in respect of the same. Distinct offences could not have been clubbed together. The trial Court failed to realise that the benefit of Section 222(2) Cr.P.C. is only available 'when the accused is charged with criminal breach of trust or dishonest misappropriation of money' and that provision cannot be availed of in framing a charge under Section 477-A of the Indian Penal Code. Therefore, it is obvious that the charge relating to the falsification of accounts does not conform to the requirements of the first part of Section 233 Cr.P.C. Further that charge does not mention the particulars as to the time and place of the alleged offences. It is highly vague charge.
20. Each group of false entries made in the account books to cover up any distinct offence of criminal breach of trust or dishonest misappropriation by themselves constitute a distinct offence of falsification of accounts. Every one of them should have been charged separately. Hence a series of charges under Section 477-A, I.P.C. even though committed in the course of one year or less are not permitted to be lumped together as Section 222(2) Cr.P.C. refers only to the offence of criminal breach of trust or dishonest misappropriation of money and not falsification of accounts. Where a person goes on defalcating such sums as he could conveniently do so without attracting the attention of the authorities concerned, as occasion arises and opportunity offers, each of the defalcations committed by him constitutes a separate offence. See Emperor v. Ram Autar Lal AIR 1942 Pat 401. But for Section 222(2), Cr.P.C. each one of those defalcations should have been separately charged, as they are distinct offences. Because of Section 222(2) several offences of breach of trust or dishonest misappropriation can be clubbed together under one charge, if they had taken place in the course of one year or less and the charge so framed is deemed to be a charge of one offence within the meaning of Section 234 Cr.P.C. But, this deeming provision is not applicable to offences falling under Section 477-A I.P.C. See Rex v. Daya Shankar Jaitly : AIR1950All167 . See also Nagendra Nath v. Emperor : AIR1932Cal486 .
21. From the foregoing discussion, it is abundantly clear that the second charge framed against the accused does not conform to the requirements of Section 233 Cr.P.C.
22. We shall now consider the question whether there is a mis-joinder of charges. It was urged on behalf of the accused that the joinder of a charge of breach of trust with one or more charges of falsification of accounts amount to mis-joinder of charges, as Section 233 Cr.P.C. lays down that every charge for a distinct offence should be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239 Cr.P.C. It is quite plain that the charges framed in this case do not conform to the requirements of Section 233 Cr.P.C. We have now to see whether they come within any of the exceptions provided in that section. Sections 239 and 236 Cr.P.C. are irrelevant for our present purpose, as the former deals with joint trial of more persons than one and the latter deals with cases where it is doubtful what offence can be said to have been committed on the facts placed before the Court, Therefore, all that we have to see is whether the present trial falls within the scope of either Section 234 or Section 235 Cr.P.C. or both.
23 There is considerable controversy as to whether the several sections mentioned in Section 233 Cr.P.C. are mutually exclusive or whether they supplement one another. Some decisions have taken the view that they are mutually exclusive. A Full Bench of the Allahabad High Court in Sri Ram Varma v. The State (S) : AIR1956All466 has taken the view that each of the four Sections viz., 234, 235, 236 and 239 mentioned in Section 233 can be individually relied upon as justifying a joinder of charges in respect of any trial, but use cannot be made of two or more of these four sections together to justify a joinder. In other words it was held therein that it is not open to the prosecution to take help partly of one section and partly of another in order to justify the joinder of charges. The Saurashtra High Court has taken the same view in Himatlal Amulkh v. The State (S) AIR 1955 Sau 77 (FB). Similar is the opinion of the Bombay High Court, See D.K. Chandra v. The State : AIR1952Bom177 . For the contrary view, we may refer to the decisions in Dinkarray Raghnath v. The State : AIR1963Guj15 and Mangal Chandra Dan v. The State : AIR1954Ori251 . This latter view finds some support, not directly but by analogy, from the decision of the Supreme Court in State of Andhra Pradesh v. Ganeswara Rao : 3SCR297 . As we shall presently see, it is unnecessary for our present purpose to examine which one of the two views is the correct view.
24 Criminal breach of trust and falsification of accounts are not offences of the same kind: See Kasi Viswanathan v. Emperor ILR 30 Mad 328; Mangal Chandra's case : AIR1954Ori251 ; Yarlagadda Tirupathirayadu v. Y. Venkateswaralu AIR 1956 Andh Pra 79 & Nagendra Nath's case : AIR1932Cal486 . Hence the prosecution has not and in fact cannot justify the joinder of charges under Section 234 Cr.P.C. Therefore the question is whether the joinder of charges can be justified under Section 235(1) Cr.P.C.
25. Section 235(1) says:
If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
In order to come within the ambit of Section 235 the offences with which the accused is charged should have been committed in the course of the same transaction. In the language of the section the series of acts alleged against him must be so connected together as to form the same transaction.
26. In testing the validity of the joinder of charges, what is relevant is the accusation made by the prosecution and not the ultimate finding of the Court. See Kunhahammad v. State of Madras : 1960CriLJ1013 . Therefore, we have to see whether on the accusation made by the prosecution it can be reasonably said that the series of acts alleged against the accused can be said to be so connected together as to form the same transaction.
27. If the prosecution wishes to justify a trial in which two or more charges are joined, it is for the prosecution to strictly establish that the joinder is permissible under any one or more of the sections mentioned in Section 233 Cr.P.C. It is a well known canon of construction that exceptions must be strictly construed, and unless the prosecution satisfies the Court that the exception has been strictly complied with, the joinder of charges in a trial should be held to be contrary to law. The general rule of procedure is to be found in Section 233 Cr.P.C. The provisions contained in Sections 234, 235, 236 and 239 form exceptions to the rule and should therefore be strictly construed.
The wholesome rule expressed in Section 233 Cr.P.C. was intended to prevent embarrassment and difficulty to the accused in defending himself in respect to the charge or charges brought against him. The Legislatures at the same time recognised that under certain circumstances which the Legislature thought would not cause any embarrassment to the accused, the accused could be tried in respect of more than one offence in the same trial and thus multiplicity of trials avoided. These circumstances are mentioned in Sections 234, 235, 236 and 239 Cr.P.C. See the Full Bench decision of the Bombay High Court in D.K. Chandra's case : AIR1952Bom177 .
28. The charges framed against the accused do not say that several acts of misappropriations and the falsification of accounts were committed in the course of the same transaction or the series of acts alleged against him are so connected together as to form the same transaction.
29. The learned Government Pleader did not bring to my notice any evidence or circumstance from which it is possible to gather that the acts alleged against the accused are so connected together as to form the same transaction. The expression 'the same transaction', very wisely, is not defined in the Criminal Procedure Code. In the very nature of things it is incapable of definition. As observed by Broomfield, J. in Shapurji Sorabji v. Emperor AIR 1936 Bom 154 the word 'transaction' is not intended to be interpreted in any artificial or technical sense; commensense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned, If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case, It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary. The prosecution case, if I understand it properly, is that the accused was a gambler; in order to meet his temporary demands, he used to temporarily misappropriate Government money and reimburse the same at the end of each month. This process went on till the end of May 1953; but this chain broke in June 1953 because the banking transactions of the Treasury were made over to the State Bank from 1.7.1953. At any rate, it is not the prosecution case, that the misappropriations in question were committed with any set purpose or design. The different acts of misappropriation alleged against the accused are not said to be interlinked in any manner. They are not connected together by proximity of time and place, or continuity of action, or community of purpose and design or relation of cause and effect or that of principal and subsidiary. In this view it is unnecessary to deal with cases where embezzlements and falsifications of accounts were said to have been committed with set purposes or designs, in which case the several offences committed can be said to have been committed in the course of the same transactions. See Kashiram Jhunjhunwalla v. Hurdul Rai Gopal Rai : AIR1950All167 and Dinkarray Raghunath's case : AIR1963Guj15 . Mere doing the same thing or similar things continuously or repeatedly does not amount to a same transaction. There is a clear distinction between a same transaction and similar transactions. On the facts of this case, I have no doubt that the series of acts alleged to have been committed by the accused do not come within the purview of Section 235 (1) Cr.P.C. Hence, the complaint of misjoinder of charges is well founded.
30. The question whether the errors, omissions and irregularities found in the second charge coupled with the misjoinder of charges have occasioned a failure of justice can be more appropriately answered after going into the question whether the prosecution has satisfactorily established that the accused had committed any criminal breach of trust during the charge period.
31. According to the prosecution, the accused began temporarily misappropriating government moneys as from 12.6.1952 (See Ex. P-92). It is said that on 12.6.1952 he embezzled from the Treasury a sum of Rs. 1,000/-; in the month of June 1952, the maximum amount embezzled was Rs. 2,000/-; July 1952, Rs. 4,000/- August 1952, Rs. 5,000/- September 1952, Rs. 8,000/- October 1952, Rs. 6,000/- November 1952, Rs. 10,000/- December 1952, Rs. 25,000/- January 1953, Rs. 37,000/- February 1953, Rs. 60,000/- March 1953, Rs. 87,000/- April 1953, Rs. 1,08,500/- May 1953, Rs. 1,10,000/- and again on 30.6.1953 Rs. 1,10,000/-. It was conceded on behalf of the prosecution that the actual defalcation at the end of June 1953 also was Rs. 1,10,000/- though the charge mentions it as Rs. 1,10,161/-. The additional sum of Rs. 161/- mentioned in the charge was said to be due to clerical error. The prosecution theory as mentioned earlier is that at the end of each month the accused used to reimburse the moneys misappropriated during the course of the month
32. The two reasons put forward in support of the above theory are (1) that the accounts maintained in Cash Section of the Treasury at the end of each month do not disclose any shortage; and (2) that at the monthly inspections by the Deputy Commissioner or his representative which were more thorough than the daily checking by the Treasury Officers no shortage was noticed. It is necessary to remember that even according to the prosecution, accounts maintained in the Cash Section are fabricated accounts and that they do not correctly represent the true state of facts. Therefore, no reliance can be placed on those accounts to show that at the end of each month the moneys misappropriated were being reimbursed. The prosecution is not right in its contention that as per the accounts there were no shortages at the end of each month from June 1952 till the end of May 1953. It is seen from statement 'A' annexed to Ex, P-92 that at least a shortage of Rs. 10,000/- was continuously kept concealed from 17.1.1953 till 28.5.1953 by bloating up the figures under 'nick-les'. Further the prosecution theory that whoever is responsible for the misappropriations in question was reimbursing the amounts misappropriated during the month at the end of the month is a highly improbable version, more so, if it was the accused who was responsible for those misappropriations. The accused was getting a meagre salary, which would have been hardly sufficient for maintaining himself. It is not the prosecution case that that he possesses any other property. It is also not proved that he had any other financial support. Therefore it is difficult to believe that he was in a position to reimburse huge sums of moneys at the end of every month. It must be remembered that at the end of May 1953, the shortage was about Rupees 1,10,000/-. It is reasonable to assume that if it was the accused that was responsible for misappropriating that amount, it would have been well nigh impossible for him to reimburse that sum. The more probable view is that the misappropriations in question were continuously going on and that they were not discovered due to lack of proper checking and scrutiny by the Treasury Officers and the Inspecting Officers. Very likely, there were better window dressings at the end of the month than on other days. To prove the alleged earlier temporary misappropriations, the prosecution solely relies on the discrepancies found in the account books. These discrepancies have been brought on record as false entries similar to those noticed during the charge period. The ostensible purpose of bringing those entries in record was to prove the intention or knowledge of the accused in making false entries during the charge period. I have already held that hose entries cannot be relied on to prove the alleged temporary misappropriations said to have been committed prior to the charge period.
33. I was asked by the learned Government Pleader to accept the evidence of the Officers who inspected the Treasury at the end of each month (only a few of them have been examined) to the effect that when they inspected the Treasury there was no shortage whatsoever. Apart from the improbabilities surrounding this version the said version is falsified by the proved facts in this case.
34 to 42. His Lordship then discussed the prosecution evidence with regard to the defalcations and concluded as follows:
43. From the foregoing discussion, it is clear that the entries in the relevant account books do not afford a safe guide to find out the dates on which the defalcations took place. Those entries merely show a continuous attempt to manipulate accounts. There can be no doubt that the checking by the Treasury Officers and the Inspection by the Deputy Commissioners or their nominees were very perfunctory if not nominal. If that be so about which I have no doubt, it is not possible to accept the prosecution theory, that the amount of Rs. 1,10,000/- was defalcated in the month of June 1953 - die charge period. It is more than likely that this amount was misappropriated by whomsoever it may be in the course of several months and the total amount misappropriated stood at Rs. 1,10,000/- at the end of May 1953. I am unable to accept the reimbursement theory for the reasons already mentioned. Therefore, I am constrained to hold that the prosecution has not established that there was any misappropriation during the charge period.
44. This takes us to the question, whether despite the absence of a charge, the accused could be convicted for committing breach of trust in respect of Rs. 1,10,000/- during the period from 12.6.1952 to 31.5.1953. A case of this nature does not come within the scope of Section 233 Cr.P.C. The exceptions mentioned therein are confined to the rule about joinder of charges and that no exception is made to that part of the rule that requires separate charge for each offence. But Section 535 (1) Cr.P.C. says:
No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless in the opinion of the Court of Appeal or Revision, a failure of justice has in fact been occasioned thereby.
In W. Slaney v. State of Madh. Pra. (S) : 1956CriLJ291 S.R. Das, A.C.J. and Bose J. laid down that the Criminal Procedure Code is a Code of procedure and like all procedural laws, is designed to further the ends of justice and not to frustrate them by endless technicalities; the object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. If he does if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice; that broadly speaking is the basic principle on which the code is based; as in all procedural laws, certain things are regarded as vital; disregard of provisions of that nature is fatal to the trial and at once invalidates the conviction; others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice; except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice; some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth; these go to the foundation of natural justice and would be struck down as illegal forthwith; it hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once; other violations, will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice; in another class of cases, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. Chandrasekhara Aiyar, Jagannadhadas and Imam, JJ. in that very case discussing the scope of Sections 535 and 537 Cr.P.C. observed that a case of complete absence of charge is covered by Section 535, whereas an error or omission in a charge is dealt with by Section 537; the consequences seem to be slightly different; where there is no charge, it is for the Court to determine whether there is any failure of justice; but in the latter, where there is mere error or omission in the charge, the Court is also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings; in generality of cases the omission to frame a charge is not per se fatal; the very broad proposition that where there is no charge the conviction would be illegal, prejudice or no prejudice, cannot be accepted as sound; there may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code; in such cases the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration their Lordships mentioned the following classes of cases:
(a) Where there is no charge at all as required by the Code from start to finish from the committing Magistrate's Court to the end of the Sessions trial:
(b) where the conviction is for a totally different offence from the one charged and not covered by Sections 236 and 237 of the Code.
In that case all the learned Judges were in agreement on the point that Sections 535 and 537 cover every case in which there is departure from the rules set out in Chapter XIX ranging from errors, omissions and irregularities in the charges that are framed, down to charges that might have been framed but were not and including a total omission to frame a charge at all at any stage of the trial. This view of the law was affirmed by the Supreme Court in Birichh Bhuian v. State of Bihar : AIR1963SC1120 and approved by that court in : 3SCR297 . Therefore, I have merely to address myself to the question whether on the material on record it can be reasonably concluded that failure of justice has in fact been occasioned by omission to frame a proper charge coupled with the misjoinder of charges and errors, omission and irregularities in the charges framed. At this stage, it may be mentioned that the objection to the form as well as to the joinder of charges was taken by the accused in the trial Court itself.
45. In assessing the prejudice that might have been caused to the accused we must bear in mind the facts (1) that in one of the charges framed, there were errors, omissions and irregularities, (2) that there was mispoinder of charges, and (3) that there was a total absence of charge as regards the breach, of trust said to have been committed during the period from 12.6.1952 to 30.5.1953. Undoubtedly, these are serious defects. It may be remembered that according to the prosecution during the period from 12.6.1952 to 30.5.1953 there were more than 200 instances of defalcations and several hundreds of false entries bewilderingly large number for an accused to properly defend himself even if proper charges had been framed. Many of the Treasury Officers during whose term of office these defalcations were said to have taken place were not examined as witnesses in this case. The defalcations in question are tried to be proved mainly by the discrepancies found in the accounts. The prosecution introduced the evidence as regards these discrepancies for the purpose of proving the intention or knowledge with which the accused must have made false entries in the relevant account books during the charge period. Hence it is not permissible for the prosecution to make use of that evidence for proving that the accused had committed breach of trust at a period different from that mentioned in the charge. The accused was not told that he would be tried for defalcations said to have been committed by him during the period in question. Section 271, Cr.P.C. requires that at the commencement of the trial, charge, under which the accused is proposed to be tried, should be read out and explained to him. The charges framed and read out to him did not contain the present accusation. The object of framing a charge is to enable the accused person to know the definite charge which he will have to meet. He is entitled to know with certainty and accuracy the exact nature of the charge brought against him; for, unless he has this knowledge he may be seriously prejudiced in his defence. In view of the charges framed, there was no need for the accused to cross-examine the prosecution witnesses in respect of defalcations said to have been committed by him during the period1 in question. It is not unlikely that in his defence, he concentrated on the accusations embodied in the charge framed against him. It is abhorrent to our sense of justice to convict an accused person without giving him adequate opportunity to defend himself. This is not a case where it can be said that the basis of the accusation remains unaltered the only question being the proper application of the law. This is a case where an accused person is charged with one offence but is asked to be convicted of another distinct offence, without a charge being framed in respect of it. In a situation like this, prejudice is inherent. If the request of the prosecution is accepted, it can be truly said that the accused was convicted in a trial which was conducted in a mode materially different from that prescribed by law. It is no doubt true that in his examination under Section 342 Cr.P.C. some questions had been put as regards the false entries said to have been made by him during the period in question. They were very casual questions. No particulars were given therein. Numerous alleged false entries were clubbed together and put to the accused. It is impossible for any one to properly answer those questions. The accused's attention was not called to each one of the alleged false entries and his explanation sought. The questioning of the accused was mainly directed towards the circumstances having material bearing on the charges-framed against him. That is as it ought to be. The rest of the questions merely touched the periphery and not the crux. The questioning of the accused appeared to have been a laborious process. As many as 125 questions were put to the accused. His statement under Section 342 Cr.P.C. covers 63 typed pages. The accused had no opportunity to lead defence evidence in respect of the new accusation put forward against him in this Court. He could not have expected that in the appellate Court he would be called upon to meet a totally different case than that put forward in the trial Court. Every accused is entitled to a fair trial. Denial of fair trial under our jurisprudence is denial of justice. Courts in this country do not subscribe to the view, that somehow, whatever the means may be, the guilty person must be punished. Under our laws want of fair trial is equivalent to failure of justice. The expression 'a failure of justice has in fact occasioned thereby' found in Section 535(1) Cr.P.C. does not connote that the Court should be of the opinion that an innocent person has been convicted or the case against the accused person is not made out beyond reasonable doubt. An accused person is entitled to be acquitted whether there was fair trial or not if no case is made out against him. For that purpose the Legislature need not have introduced the conception of 'failure of justice' in Sections 535 and 537 Cr.P.C. The 'failure of justice' mentioned therein is that occasioned by the contravention of the provisions in Chapter XIX Cr.P.C. In law the expressions 'justice' comprehends not merely a just decision but also a fair trial. Sections 535 and 537 Cr.P.C. have primarily in view a fair trial. For the purpose of those sections a denial of fair trial is denial of justice. One of the contents of natural justice, which we so much value, is the guarantee of a fair trial to an accused person. A fair trial is as important as a just decision. Neither the one nor the other can be sacrificed. Sacrifice of the one, in the generality of cases, is bound to lead to the sacrifice of the other. The two are closely interlinked. The way to justice, on occasions, may be long and laborious. But we have to go all that way. Because that is the only surest way. Short cuts to justice, though quite tempting, are full of dangerous possibilities. Recent history of several dictatorial countries bear testimony to that fact. Judges know by experience that the first impression may not always be the right impression and truth may lie hidden behind imposing facades. In Courts of law nothing can or should be taken for granted. Everything must be tested - tested by the laws of the land which are the quintessence of experience of life; if it is oral evidence it must be tested by cross-examination and if it is a question of probabilities, it must be tested by comparing the various versions put forward by concerned parties, which means that those parties should have had reasonable opportunity to put for ward their versions. In short a fair trial which is not the same thing as a trial strictly in accordance with the rules of procedure is a must. A denial of fair trial is denial of justice. For the reasons mentioned above, I hold that the accused before the 5 Court had had no fair trial. In other words, the mode and manner in which the accused was tried has occasioned a failure of justice.
46. It was urged on behalf of the prosecution that if for any reason the accused cannot be convicted under the first charge, namely, the charge under Section 409 I.P.C., there can be no objection for convicting him under the second charge. I have earlier noticed that there are many irregularities, errors and omissions in the charge under Section 477-A I.P.C. I have also noticed that the joinder of that charge with the first charge has resulted in misjoinder of charges. More than all these, in order to bring home the guilt under Section 477-A I.P.C. the prosecution has to prove that the accused had falsified the account books or made false entries therein wilfully with intent to defraud the State. The case for the prosecution, as seen earlier, is that the accused falsified the account books with a view to cover up his embezzlements. If the charge of breach of trust against him is not proved then the prosecution case that the accused intentionally and deliberately falsified the account books to cover up his embezzlements must also fail for want of proof. The prosecution has no alternative case. The plea of the accused is that he made those entries at the dictation of the Treasury Officer for the time being and he does not know whether those entries are correct or incorrect. This version is prima facie unacceptable. But the rejection of the plea of the accused does in no way establish the prosecution case that the accused wilfully falsified the account books with the intent to defraud the State. In the context of this case no question of falsification of account books can be proved without proving that the accused is guilty of breach of trust, alleged against him. It is not the prosecution case that the accused falsified the account books to cover up somebody else's defalcations. Further there is no legal evidence to show that there was any wrongful removal of money; from the Treasury. We have already discussed this aspect earlier. Therefore, the conviction of the accused under Section 477-A I.P.C. cannot be sustained.
47. This takes me to the question whether a retrial should be ordered in this case. The charge of defalcation of public funds by a public servant is a very serious charge. So also is the charge under Section 477-A I.P.C. But, in deciding the question whether a retrial should be ordered or not, the court should bear in mind the harassment the accused had already gone through, the time that has elapsed between the date of the commission of the offence and the date of the order of retrial, the expenditure that might have been incurred by the defence as well as by the prosecution and the nature of the evidence available against the accused with a view to find out whether in the circumstances of the case there are valid reasons to order a retrial.
48. According to the alternative case put forward in the appeal the embezzlements in question took place during the period from 12.6.1952 till 30.5.1953. The trial of this case commenced on 12.2.1957 and closed on 8.12.1958. The case suffered about 250 adjournments a performance which is rarely equaled but hardly justified by the facts of the case. This appeal was filed in 1958. But the hearing of the appeal could not be taken up till recently as both the prosecution as well as the defence insisted on the preparation of printed copies of the numerous account books produced in the case. At the hearing of the appeal, I found that there was no justification for that attitude. It is evident that the State had spent large sums of money in the investigation and prosecution of this case. The accused who is out of job from about the beginning of July, 1953 must also have spent large sums of money for his defence, Quite naturally may be with or without justification he must have gone through a great deal of mental agony ?during the last eleven years or more. In these circumstances the Court must be slow in ordering a retrial unless there are compelling grounds. Therefore, it is necessary to examine the nature of the evidence available to find out whether there are justifiable grounds to order a retrial. This examination, in the very nature of things cannot be a detailed examination as its purpose is not to find out whether the accused is guilty or not but whether in the circumstances of this case there is any justification for ordering a retrial.
49. I have earlier enumerated the circumstances appearing against the accused. Let me now briefly examine how far each one of those circumstances is established. It may be taken as proved that fa the State Huzur Treasury there was a shortage of Rs. 1,10,000 on 30.6.1953. The contention of the accused that on a true interpretation of the relevant rules in the Mysore Treasury Code, he cannot be said to have been entrusted with the amount in the Treasury and hence he cannot be held guilty of breach of trust cannot be accepted. The strong room of the Treasury was under double lock; the accused as Treasurer was in possession of the key of one of the locks; the moneys taken out of the Treasury every morning, according to the evidence adduced, were entrusted to him for carrying on the day's transaction; moneys received at the Treasury during the day were received either by the accused or by the shroffs; if received by shroffs, they were made over to him at the end of the day and it was the accused that had to account for the same to the Treasury Officer at the end of the day. The prosecution case is that the accused took out more amount than he entered in the account books or put into the Treasury less amount than be had to. In the circumstances mentioned above, it is not possible to accept the contention of the accused that he was not entrusted with the cash and currency that were in the Treasury. The fact that the Treasury Officer as the Officer on the spot was responsible for the same is not material for our present purpose.
50. It is not possible to accept the prosecution contention that the accused alone was taking out cash and currency notes from the strong room in the morning and he alone was putting them bark in the strong room in the evening. Under the rules, in the Mysore Treasury Code, they have to be taken out either by the Treasury Officer personally or under his immediate supervision. At the end of the day, the Treasurer had to account to the Treasury Officer for the day's transactions. He had to check the accounts of the Treasurer and find out the correctness of the accounts submitted to hint. He was required to tally the accounts of the cash department with that of the accounts department. The treasurer was only a subordinate of the Treasury Officer who was specially in charge of the Treasury. There were detailed and comprehensive rules regulating the duties of each one of the officers in the Treasury. But, I was asked to believe that these rules were not observed. The evidence adduced in this case shows that contrary to the rules one Treasury Officer after another allowed the accused to be in custody of the. Double Lock Register (Ex. P-79), before opening the doors of the strong room, the accused and not the Treasury Officer used to make the necessary entries in that Register and thereafter the accused used to send for the Treasury Officer, who used to merely read out the figures found in that Register and ask the accused to remove the required amount from the strong room. Similarly, at the end of the day, it is said that the Treasury Officer never entered the relevant entries in the Double Lock Register, he merely read out and initialled the entries made by the accused after asking him whether those entries were correct; and it was the accused who put into the Treasury the balance amount remaining in his hands. If the evidence given by the prosecution witnesses on this point is true, then there is no doubt that the concerned Treasury Officers were callous to the extreme. The rules require that the Treasury Officers should be in charge of the Double Lock Register; preferably they must make the entries in those registers; if made by others they should be made under their immediate supervision; they should carefully verify those entries; counter check them with reference to other account books of the cash department as well as of the accounts department and in token of so checking they should initial all those entries. Defalcations occur often times, because of the failure of the superior officers to act according to rules and regulations. There is a presumption that official acts have been regularly performed that they have been performed in accordance with the rules and regulations bearing on the subject. But this is a rebuttable presumption. In fact it is left to the Court to raise that presumption or not depending on the peculiar facts of each case. When officials who are required to perform their official acts regularly depose that they have failed to do so that evidence is bound to be looked with suspicion particularly when it is self serving or when it is given by their subordinates who are likely to be eager to have their grace or to avoid their displeasure.
51. The accused wants the Court to believe that the officers who are responsible for the misappropriations concerned in this case are trying to make him a scapegoat. He asserts that he made all the entries in Exs. P-79 as dictated by the Treasury Officer who was in charge of the Treasury on any particular day and those entries were copied in Exs. P-83 and P-73. This plea is a highly improbable plea. As between the entries in Exs. P-79, P-73 and P-83 there are several discrepancies. It is difficult to believe that the accused who was a Treasurer for several years went about his job with blinkers on. He could not have been ignorant of the affairs of the Treasury. It is too much to believe that a man of his experience could have blindly gone on making wrong entries at the behest of somebody else, Evidence discloses that the accused was more or less continuously making these wrong entries during a long period (from 12.6.1952 to 30.6.1953) when there were several Treasury Officers. There are four possibilities, viz., (i) the accused being responsible for the embezzlement or embezzlements in question had falsified the relevant account books or made false entries therein, this is the prosecution case, (ii) the concerned Treasury Officers, were responsible for the misappropriations in question and the accused made incorrect entries in the account books at their instance without knowing that those entries are false entries, this is the accused's version, (iii) the concerned Treasury Officers were responsible for the misappropriations in question but the accused aided them wilfully and with intent to defraud the State by making false entries in the account book and (iv) the Treasury Officers and the accused jointly misappropriated the amount in question and the accused falsified the account books to cover up the same. It is for the prosecution to make out its case against the accused beyond reasonable doubt.
52. I have earlier mentioned that the case against the accused rests on circumstantial evidence. In a case depending on the conclusions drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt. Suspicions, however, strong cannot take the place of proof.
53. The trial Court fully accepted the evidence of P.Ws. 12 and 13 as to the manner how the Treasury worked during the time they were Treasury Officers in the State Huzur Treasury though the version given by them does not accord with the rules on the subject. Evidently the trial Court thought that it ought to rely on the evidence of P.Ws. 12 and 13 as they were holding fairly high positions to Government service though they are interested witnesses, their evidence does not accord with the rules on the subject and the same is discrepant in several respects. The trial Court has adopted varying standards between the accused and P.W. 13 in weighing the circumstances against them. It may be that P.W. 13 was merely negligent and was not responsible for the defalcation or defalcations in question. But between a may and must there is a long way and the prosecution must cover all that way. That is what has not been done in this case.
As we shall presently see the prosecution case even as it stands raises grave suspicions against P.W. 13. The possibility of the accused being merely an abettor or having jointly committed the crime with one or more Treasury Officers cannot be ruled out. In this case the investigation appears to have had a one track mind. It looks as if the investigation was directed to find out evidence against the accused and not to find out the truth. It has too readily accepted the version of P.Ws. 12 and 13 without subjecting the same to scrutiny. The theory that the entire sum of Rs. 1,10,000 was embezzled in the month of June, 1953 is either based on a superficial view of the material on record or was deliberately evolved with a view to negative the liability of the several Treasury Officers. In view of die definite stand taken by the prosecution and the way the evidence has been let in. this case, the Court has no alternative but to either accept the prosecution case or reject it. No alternative case can be considered. The possibility of the accused having abetted others or he and one or more Treasury Officers having jointly committed breach of trust cannot be examined in view of the stand taken by the prosecution and consequent paucity of material on record. For properly examining those aspects, it may be, that a fresh investigation would be necessary. In this case an alteration of the accused's conviction under Section 409, I.P.C. into one of abetment thereof or to hold that he must have committed the offences with which he is charged jointly with one or more Treasury Officers would imply a definite finding of guilt against those officers who are not before the Court as accused persons. Such a decision may cause them serious harm. Therefore it would be unfair to make such an alteration. See Bhagat Ram v. State of Punjab : AIR1954SC621 .
54. It is no doubt true that Ex. P-3 (Payee's Receipt) is in the handwriting of the accused. That receipt shows that the amount intended to be transferred to the Bank of Mysore under it was Rs. 7,77,619-7-7 whereas in fact only a sum of Rs. 6,67,619-7-7 was transferred on 30.6.1953. The version of the accused is that he wrote Ex. P-5 on 29.6.1953 as required by P.W. 13 and that he does not know what became of it According to him, he did not know on 29.6.1953 the amount remaining in the Treasury after sending Rs. 5,00,00 ft on that day. P.W. 13 has not given any satisfactory explanation as to why he did not send to the Bank the balance amount remaining in the Treasury on 29.6.1953 even after getting Ex. P-3 prepared. There is no satisfactory evidence to show that he sent that document to the Bank at least on 30.6.1953. That circumstance naturally gives rise to suspicion as regards the conduct of P.W. 13, It is natural to ask the question why he kept back that document?
55. Admittedly Ex. P-5 was given by the accused to the Cashier of the Bank of Mysore on 30.6.1953. The accused's case is that on 30.6.1953 P.W. 13 did not give him any invoice, he merely asked him to take the balance amount, after leaving the amount in the imprest account, to the Bank of Mysore; when he took that amount to the Bank, the Cashier of the Bank wanted him to give a detailed statement showing the amount under different denominations and that is the reason why he gave Ex. P-5. His further case is that Ex. P-5 was prepared by him in the presence of several Treasury officials; and in that statement he has mentioned the facts as they were. According to the accused, if he had any guilty conscience he would not have given a true statement on that day, particularly when he knew that the Bank was bound to take several days to verify the contents of the consignments sent, There is some force in this contention. Ex. P-92 sets out the various omissions, commissions, of P.W. 13. Decision to close the banking department of the Treasury had been taken long before the end of June, 1953. Contrary to the general and specific instructions given to him P.W. 13 failed to send the amount in the Treasury to the Imperial Bank till the end of June, 1953. He woke up to the situation only en 29.6.1953. The Imperial Bank refused to receive the amount in question for want of time. Thereafter P.W. 13 more or less as a desperate measure approached the Bank of Mysore. Because of its past relationship with the Treasury that Bank agreed to receive the amount as an agent of the Imperial Bank. Yet on 29.6.1953 P.W. 13 sent only Rs. 5,00,000 to the Bank of Mysore. It is not known why he did not send the balance amount on that day. The consignments containing currency notes and coins were sent to the Bank late in the evening on 30.6.1953. Chapter XIV Section 3 Mysore Treasury Code prescribes the important precautions to be taken in despatching cash remittances. It lays down:
(a) The money to be remitted should be given out of double locks after proper verification;
(b) The coins should be packed for remittance in stout bags and sealed with a contents slip. 'The Treasury Officer must satisfy himself of the contents of the bags and must see that proper number of bags are placed in each box';
(c) For journeys by road, the bags may be packed in large chests placed in carts at the door of the treasury 'in the presence of the Treasury Officer';
(d) Invoices should be prepared separately in triplicate. 'One copy should be retained by the Remitting Officer, another should be despatched by post on the same day to the receiving officer and the third made over to the escort officer. The weights entered in the invoice should be those ascertained by weighment in the presence of the escort officer';
(e) Invoices relating to currency notes should set forth the number of bundles and the number of notes in each bundle under each denomination and 'should bear at foot a certificate from the Treasury Officer that the parcel has been made up and sealed in his presence and that he has personally ascertained that its contents corresponded with the invoices. The original invoice is required to be sent by post to the receiving officer' (Underlining (here into ' ') is mine).
According to the evidence given by P.W. 13 in the trial Court he did not count or check the amount taken out from the Double locks for remittance on 30.6.1953; the coin bags and the bundles of notes were not packed under his supervision; the boxes and bags were not loaded in the cart in his presence; and invoices in the prescribed forms were not prepared and sent by him to the receiving officer. P.W. 13 further wants the Court to believe that he did not care to get any provisional receipt from the Bank on that day or the next day as he was told by the accused that the Cashier of the Bank had told him (the accused) that he would send the provisional receipt in due course. This is really something ununderstandable. Could any officer, particularly an officer occupying the position that P.W. 13 did could be so callous as that. P.W. 13 did not on his own showing even care to telephone to the Bank to ascertain what had happened. Is this supreme indifference real or faked? The possibility of its being a mere pretence cannot be ruled out. Suffice it to say, the circumstances above enumerated are highly incriminating against P.W. 13. In the Committal Court P.W. 13 admitted (See Ex. D-92 (dd)) that he had counted the amount in the strong room (under double lock) before sending the same to the Bank on 30.6.1953. This is a very important admission. If that admission is true, and I do not see any reason why it should not be accepted as true, then P.W. 13 should have been fully aware of the shortage even on that day and if he kept quiet, as he did, even after knowing that there was a shortage of Rs. 1,10,000 the only reasonable inference is that he was a party or privy to the defalcations in question. For good reasons ha went back on that admission in the trial Court.
56. The prosecution has led evidence to show that the accused entered on four days casual leave on 4.7.1953, and thereafter he did not report himself for duty. The evidence of P.Ws. 28, 29, 30 and 33 goes to indicate that the accused was absconding from about 4.7.1953 till about the middle of August of that year. This evidence is not very satisfactory. But the fact remains that the accused did not report for duty after the expiry of the casual leave. His explanation that he was down with jaundice and therefore he could not report for duty is not supported by any circumstance. Though abscondence evidence is relevant it is not of much evidentiary value. Even innocent men when accused of serious offences are likely to run away from the arm of law.
57. P.Ws. 31 and 32 have been examined to show that the accused was a punter in horse races. The evidence of both these witnesses is very artificial. According to P.W. 31, (Abdul Subhan), in June, 1953 he had gone to the race course in Bangalore, there he met near the bookie stalls the accused who was known to him since about 8 or 9 years previously; the accused asked him whether he had any bets to offer and told him that he would give him half a point mere than others; accordingly he bet a sum of Rs. 3,000 on the horse 'Sheet Anchor' on the understanding that if that horse won the accused should pay him 3% times that amount; he also paid him the tax of Rs. 375. He further says that the horse in question won and the accused paid him a sum of Rs. 10,500. It is said that on being questioned by the Investigating Officer, he produced before him a sum of Rs. 10,500/-. This witness is not shown to be a substantial person. At about the time when he is said to have given the bet of Rs. 3,000 admittedly he had no property or means of his own. Accordingly to him his father was alive at that time and he owned a house. His story is that his father had left with him Rs. 3,000 for what purpose it is not known and he (the witness) gave that entire amount as a bet. This version does not carry conviction. The witness admits that under law he had to bet only with bookies who had exhibited their name-boards in the ring. But the strangest part of his story is that he paid as tax a sum of Rs. 375 to the accused, who is not shown to have been an official bookie at any time. If the witness knew the accused for over 8 years he would have certainly known that he was a Government servant and not an official bookie. The trial Court has placed reliance on the evidence of this witness probably because it is said that he had produced Rs. 10,500 before the police which was seized under a mahazar. Courts are not unfamiliar with such make-believe pieces of evidence. Even according to this witness, his gain was only Rs. 7,500. Why then did he produce Rs. 10,500 and allow that money to remain in Court's custody? On his own showing the financial position of the witness is not such as to go about throwing money. It is hard to believe, that this witness would have voluntarily handed over the sum of Rs. 10,500 to the police for the mere asking. The evidence of this witness appears to be a forged link in the prosecution case. The evidence of P.W. 32 (Syed Gaffar) is neither satisfactory nor conclusive.
58. The various wrong entries in Exs. P-79 and P-73 and P-83 pointed out by the prosecution are admittedly in the handwriting of the accused. The proved entries date from 12.6.1953. They were made during the term of office of several Treasury Officers. The explanations offered by the accused in respect of those entries are far from satisfactory. Hence there are strong grounds to suspect the complicity of the accused in the embezzlement or embezzlements that had taken place in the Treasury. But for the reasons set out earlier it will be a travesty of justice to order a retrial of this case at this stage. The prosecution has to thank itself for this sorry state of affairs.
59. For reasons mentioned above this appeal is allowed and the accused acquitted. His bail bonds will stand cancelled.
60 In view of the above conclusion, Criminal Revision Petition No. 64/59 fails and the same is dismissed.