Abdul Hakim Khan, J.
1. The accused who was a Tax-Collector in the Municipal Committee, Gwalior, was convicted by the Special Judge, Gwalior, under Section 409 of the Indian Penal Code, and sentenced to three years' rigorous imprisonment'. He has filed this appeal against his conviction and sentence.
2. The prosecution case shortly stated is that the accused was a Tax-Collector in the Municipal Committee, Gwalior. His business was to collect tax and deposit it in the Municipal Treasury. It is said that ho collected a sum of Rs. 4,750-2-0 but did not deposit it in the Municipal Treasury. It is also said that he collected a sum of Rs. 3,071-15-0 but did not at once deposit the amount as required by the rules. He kept the money with him for some time and that he deposited it later on.
3. The learned counsel for the accused-appellant has raised many contentions and I consider them below in the order in which they have been raised.
4. The first objection raised is that the charge was not properly framed. On turning to the record I find that the charge against the accused was framed as follows:--
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rqe vfHk;qDr oh'ks'oj jko vfXugksf= iq=jkepUnzjko vfXuhgksf= fuoklh NUuh cktkj y'dj uhps fy[ks vuqlkj vkjksij[krk gwwa fd%&
lu~ 1951 esa rqeus E;wfufLiy desVh y'dj dk VsDlDysDVj gksrs gq;s bl gSfl;r ls tks :i;k gkml VsDl dk bl lu~ 51 esa olwy fd;kvkSj og :i;k rqEgkjs ikl vekur gksus ls rqeusa mlesa ls 3071 :i;k 15 vkus nsj lstek fd;k vkSj 4750 :i;s 2 vkus drbZ tek u djds bl jde dh [;kur dh blds vfrfjDrrqeus E;wfufliy desVh ds dV~Vk Llhnkr ,- th- ih- 2] ih- 3] o ih- 4 esa QthZdksjs MqiyhdsV QkeZ Insertfd;s gS vkSj jlhnkr esa olwyh dh rkfj[k rCnhy dh ,slk rqeus tkucw> djE;wfuflifyVh dks nxk nsus ds fy;s fd;k gS vkSj rqEgkjh fu;r ,slk djus lsE;wfufikyVh dks Defranddjus dh FkhA
vkSj ,slk djus ls rqeus og vijk/k fd;k gS ftldhltk Hkk- na- fo- Hkkjk 49] 468] 477, ;k 5%2Prevention of Corruption Act, 1947&eas; nUM fy[kk gS o ftldh laiw.kZ tkap djus dk vf/kdkj Lis'ky tt Xokfy;j dks gSAblfy;s bl vkns'k ls rqedks le>k nh tkrh gS fd mDr izdj.k dk fujkdj.k blU;k;ky; ls gksxk] rk- 10&3&53-
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5. On a perusal of this, it would appear that the accused was not only charged for the offences under Section 409, I. P. C., but he was also charged under Section 468-D, Section 477A of the I. P. C., and under Section 5 (2) of the Prevention of Corruption Act as well. The accused has been acquitted of all the other offences, but convicted under Section 409, I. P. C., only. In the circumstances, I have only to see whether the charge framed for the criminal breach of trust under Section 409, I. P. C., was properly framed or not
6. On referring to Section 222 (2) of the Criminal Procedure Code, I find that in a charge for criminal breach of trust what is necessary is to specify the gross sum in respect of which the offence is alleged to have been committed, & there should also be the mention of dates. Viewed from this point of view, the charge is proper, because it gives a gross sum. in respect of which breach of trust is alleged to be committed in year 1951. These particulars are sufficient and the objection is of no avail.
7. The learned counsel for the appellant has urged that there are no details of the charges under Sections 468 and 477A of the Indian Penal Code. But it is unnecessary to consider this point, because the accused has been acquitted of these offences and there is no Government appeal against the acquittal.
8. The learned counsel for the appellant contends that the father's name of the accused was wrongly mentioned in the charge. In the first place, this objection does not appear to have been raised in the trial Court. Secondly, it is admitted that the accused was a Tax-Collector in the Municipal Committee, Gwalior. In these circumstances even if there is mistake in the name of his father, it does act affect the merits of the case.
9. In ground No. 9 of the Memo of Appeal, it has been said that a charge framed for more than 3 offences in any year was illegal, and that the joinder of charges for criminal breach of trust with the falsification of accounts under Section 477A and Section 468-D was bad. At this stage I think it unnecessary to consider the question of the misjoinder of charges, because as a matter of fact the accused has been acquitted of offences under Section 477A and Section 468-D, and the misjoinder does not affect the present appeal.
The learned counsel for the appellant has referred me to Ramsheshan, G. S. v. Emperor, AIR 1935 Nag 178 (A), but I am afraid that the Nagpur case does not help the accused at all, because in the Nag-pur case the accused was convicted by the trial Court of offences under Section 408 and Section 477A. On revision it was he]d that the offences should not have been joined together and the case was sent back for a separate trial of the two offences. In the instant case, there is conviction under Section 409, I. P. C., only. There does not arise any question of misjoinder of charges at this state.
10. Another objection raised in this appeal is that the trial Court did not inform the accused that he could, appear as a witness, and that as a result of this, he has been prejudiced in his trial. The learned counsel for the accused has referred me to Promod Chandra Shekhar v. Rex, AIR 1951 All 546(B). The Allahabad case seems to suggest that the duty is cast upon the Court to inform the accused that he can appear as a witness in his own case. But with great respect to the learned Judges of the Allahabad High Court, I must point out that there is no such direction in Section 7 of the Prevention of Corruption Act (Act No. II of 1947). In fact Section 7 (a) says that the accused shall not be called as a witness except on his own request.
In the circumstance I find it difficult to agree with the view of the Allahabad High Court that it is the duty of the Court to inform the accused that he is a competent witness. Since the request is to come from the accused it would not be proper for the Court to invite the request. It is not business of the Court to advise the accused as to his rights.
His failure to give evidence is not a matter to be commented upon and if the Court were to ask the accused whether he would like to tender evidence on his own behalf, his reply in the negative may prejudice the Court. In this case the accused was represented by a counsel. In the circumstance, there is no force in the contention.
11. It has been urged that no sanction of the appropriate authority was obtained in this case but Ex. P-94 is a complete answer to it. The learned counsel for the appellant has cited Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637 (C) and Gokulchand Dwarkadas v. King, AIR 1948 PC 82 (D). But both the cases are not to the point because from Ex, P-94, it appears that before according sanction, the sanctioning authority had examined the facts and that it was after considering the whole matter that sancton was given. The objection is futile.
12. After disposing of the legal question, I now come to consider the case on merits. There are three important witnesses in this case: One, Chet-ram P.W. 1, two, Shughar Singh P.W. 4; and three, Nasir Ahmed P.W. 5.
13. From the evidence it is clear that it was the duty of the Tax-Collector to deposit the collection forthwith into the Treasury. It has also been stated that if after the collection, the next day was a holiday then the collections were to be deposited into the Treasury soon after the holiday. It has also been stated that the accused did not deposit a total sum of Rs. 4,750-2-0. Chetram. P.W. 1, has stated on oath that this money was never put in the Treasury.
The accused, in his defence, has stated that he has deposited this amount In the Treasury, but he has led no evidence in support of it. The trial Court which had the benefit of examining the witnesses and observing their demeanour has come to the conclusion that the accused realised the money but never deposited it in the Treasury of the Municipality. This finding of fact cannot be lightly brushed aside, and I see no reason to take a different view.
14. For reasons stated above the appeal of theaccused is disallowed.