1. The applicant is convicted by the Sub-Divisional Magistrate, Goharganj, of an offence Under Section 409, 1. P. C, and is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 200/- or in default to suffer further rigorous imprisonment for 6 months. His appeal was dismissed.
2. The case for the prosecution was that the applicant was a Forest Guard at village Dungaria Tehsil Goharganj and in his such capacity recovered Rs. 15/8/- on 15-3-1950 from one Kashiram Contractor for 'Mahua and Achar' and passed a receipt therefor. He, however, never credited the amount either at the Range Office or with the Treasury and dishonestly appropriated it to himself. Tie was prosecuted for an offence Under Section 409, IPC In defence he denied having ever received the amount from Kashiram though he admitted his signature on the receipt. His explanation is that lie had signed the document in token of his check of the 'ravanna' on the reverse of the said document. On the evidence on record the learned Magistrate overruled the defence and convicted him as above.
3. Ir. this Court it is not urged that the explanation given by the applicant may he true as there is a 'ravanna' on the back of the receipt, that the receipt was in Hindi script which the applicant did not know and that: fact should be held enough to justify an inference that the applicant did not know the contents, that the omission to examine George Pedro another attesting witness on the reciept should lead to an inference adverse to the prosecution and lastly that the prosecution of the applicant Under Section 409 was bad in law in view of Section 5 (1) (c), Prevention of Corruption Act, 1947, and the applicant was prejudiced thereby.
4. In so far as the first two contentions are concerned it must appear that the 'ravanna' on the reverse of the receipt is in Urdu which the applicant knew and is serial No. 1127 of Book No. 18 for annas /&/- of the Budni Naka Range passed in favour of one Jagga Kotwar and bears the signature of 'ravanna nikasi' dated 27-1-1947. Apart from the absence of any evidence in support of any such suggestion it is difficult to accept that the Forest Guard checked the counter-foil of the above 'ravanna' after a period of more than three years since 1947 to 1950. The signature of the applicant is not on the face of the counter-foil but on the reverse of the document as, it should have been, if it was made only in token of a check as suggested. The first contention has therefore no substance,
5. As regards the second contention, though it is true that the receipt dated 15-3-1950 is in Hindi script still there is voluminous evidence on record of the actual payment of the amount by Kashiram to the applicant as found in the testimony of Kashiram (P.W. 1) and Inayat Khan (P.W. 3) against whom the applicant himself could not point to any reason. This Inayat Khan has attested the document by putting in his signature in Urdu. It also appears that one George Pedro was also present at the time when the payment was made. It is difficult to believe in the absence of any reason to doubt their veracity that these three persons conspired against the applicant to concoct a false story of the payment of the amount to him. This contention also, therefore, falls through.
6. Going over to the third contention it may be pointed out that it is not incumbent on the prosecution to examine every one of the persons who were present at the time of the payment and no inference adverse to the prosecution can be drawn on account of the omission of examining George Pedro on record, A suggestion was made that the evidence of Kashiram (P.W. 1) and Inayat Khan (P.W. 3) was at variance. this Court is bound by the concurrent finding on the fact of the payment as given by the two lower Courts and cannot allow itself to be drawn into the evidence. The third contention also has no force. -
7. Going over to the last contention, the question is whether Section 5 (1) (c), Prevention of Corruption Act, 1947, repeals Section 409, IPC in so far as public servants are concerned. The offence is said to have been committed on or about 15-3-1950 and the challan was filed on 25-6-1951, In this case, therefore it is only the Question of the provisions of the Prevention of Corruption Act, 1947, that arises and the provisions of the further amendment in 1952 of this Act need not be considered. In 'The State v. Gureharan Singh' AIR 1952 Punj 89 (A), it was held for the first time that
as long as Section 5 (1) (c) remains in force the provisions of Section 409, IPC so far as they concern offences of public servants are 'pro tanto' repealed by Section 5 (1) (c) of Act 2 of 1947.
The same was accepted in 'Puranmal v. The State' AIR 1953 Punj 249 (B), where it was further observed that 'S. 5 (4) was not retrospective in operation and did not apply to proceedings when the amendment came into force on 12-8-1952'.
This view was not accepted by the Allahabad High Court in 'Bhup Narain Saxena v. State : AIR1952All35 . In that case the accused was arrested on 6-1-1949 and three charge-sheets were lodged against him on 25-5-1949 under the various Sections of the Penal Code. It was observed that when the offence is one punishable under the Penal Code and is now made punishable under this Act (Prevention of Corruption Act, 1947) also it is open to the prosecution to proceed against h accused under the Penal Code. 'In re Satya-narayanamurthy' : AIR1953Mad137 , the decision in 'AIR 1952 Punj 89 (A) was disswnwed from and it was held that:
It is idle to contend that a special law repeals the provisions of the Indian Penal Code because both of them deal with offences arising under both the Acts.
Provisions of Section 26, General Clauses Act, were discussed.
In 'Madho Prasad v. State' AIR 1953 Madh-B. 139 (E), the above decision of the Madras High Court was relied upon and it was held in definite terms that:
Section 5 (1) (c), Prevention of Corruption Act, 1947 as it stood prior to the Prevention of Corruption (Second Amendment) Act, 1952, did not pro tanto repeal Section 409 of the Penal Code, so far as it relates to offences by public servants.
The decision in 'Gopal Das v. State' : AIR1954All80 , indicates that the accused could be prosecuted for an offence either Under Section 409 or tinder Section 5 (1) (c), Prevention of Corruption Act 1947.
In the case on hand the very same argument as is found in para 8 of the above Allahabad decision was advanced in this Court that the accused was prejudiced by the prosecution Under Section 5 (1) (c). This very matter has been dealt with in the above paragraph of the Allahabad decision and it was observed:
The differentiation in the punishment provided for the same conduct in either of the two provisions of law is immaterial in view of Section 71, Penal Code, which provides that where anything which is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
The decision in 'K. Jayarama Iyer v. State of Hyderabad' AIR 1954 Hyd 56 (G), dissents from AIR 1952 Punj 89 (A)', and follows the Madras and Madhya Bharat decisions 'ibid', and the decision 'In Re Govindaswami' : AIR1954Mad401 , follows suit, so also is the view taken in 'Gian Chand Madhok v. The State' AIR 1954 Him-P. 78 (I).
8. A Full Bench of the Bombay High Court in 'The State v. Sahebrao Govindrao Jadhav' : AIR1954Bom549 , held:
The provisions of Section 5, Prevention of Corruption Act, 1947, do not derogate from any other provision of law. They do not derogate from the provisions of Section 409, Penal Code, or the Criminal Procedure Code with regard to that section. The special procedure set up under the Prevention of Corruption Act does not entitle a public servant to insist that the only proceedings which could be instituted against him must be under the special Act and not under the Criminal Procedure Code.
In view of the voluminous decisions, the view taken by the Punjab High Court must be dissented from land I find that the prosecution of the applicant J Under Section 409, IPC was not bad in law and that the applicant cannot be held to have been prejudiced by such prosecution.
9. There is thus no substance in the revision petition and as the sentence does not appear to be too severe it is upheld. The revision petition is dismissed.