R.K. Das, J.
1. This is an appeal against the order dated 29-4-63 passed by the Special Judge, Puri, convicting the appellant under Section 5(2), read with Section 5(1)(c) of the Prevention of Corruption Act, 1947, and sentencing him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 50/-, in default to undergo simple imprisonment for a further period of 15 days.
2. The accused was working as a temporary post-master in the extra-departmental branch post office at Pathara under the account jurisdiction of Khallikote Sub Post Office in the district of Ganjam. On various dates he received moneys aggregating to Rs. 974.70 nP. from Pws. 1, 2, 3 and 4 for remitting money orders, but made delay of several days in accounting the same in the relevant postal registers, and thus committed a temporary misappropriation of the amount. On 34-7-61 P. W. 5, the Inspector of Post Offices while making inspection of the Pathara post-office detected some corrections in the inner foils of money-order receipts. He felt suspicious and contacted the remitters and compared the dates on the inner foils with the dates given on the original receipts granted to the remitters and noticed some discrepancies.
After enquiry, he submitted a report to the Superintendent of Post Offices, Berhampur, and terminated the services of the accused on- the 27th July, 1961, under Ext. 14. P. W. 6, the Inspector of Special Police Establishment, Puri on his own information registered a case and after having, obtained permission from the Special Magistrate, Puri, took up investigation and submitted charge-sheet against the accused and the accused was ultimately tried by the Special Judge, Puri, who convicted and sentenced him as stated above.
3. The accused admitted to have received the money orders from P. Ws. 1 to 4 and claimed to have duly credited the same in the accounts of the post office. He denied to have committed any offence.
4. The prosecution case rests mainly on documentary evidence as also on the oral evidence of P. Ws 1 to 4. It appears from the evidence of P. W. 1 that he remitted a sum of Rs. 15/- at Pathara post office on 21-6-1961 and obtained a money order receipt (Ext. 2) from the accused. Similarly P. W. 2 sent a money order for a sum of Rs. 70/- on 1-6-1961 and obtained a receipt, Ext. 4 from the accused. P. W. 3 sent four money-orders through this post office, that is Rs. 73/-on 30-5-61, Rs. I28/- on 12-6-61, Rs. 200/ on19-6-61 and Rs. 80/- on 20-6-61 and obtained receipts Ext. 9, 9/1, 9/2 and 9/3 respectively for the aforesaid money orders from the accused. It is the case of P. W. 4 that he sent a sum of Rs. 394/- on 7-6-1961 and obtained a receipt, Ext. 11 from the accused. It is the case of all these witnesses that they obtained receipts on the very day they remitted the money orders.
It is in evidence of P. W. 5 that all account-matters were to be dealt with by the branch post master and the postal seals and the records arekept in his exclusive charge. According to rules, the remitter of a money order has to handover themoney order form duly filled in along with theamount of money order and commission to the postmaster who prepares the inner and outer foils of the receipts and signs and seals the same and makes over the outer foil to the remitter retainingthe inner foil in the office. At the close of theday's transaction, all the money orders received are to be entered in two registers, that is. Branch PostOffice Journal and Branch Office Account. The post-master has then to enter all transactions of receipts and payments in the branch office daily account form and has to forward it to his accountoffice with the document like the M. O. forms.
After receipt of the daily accounts and themoney order forms in the account office, they arechecked there and then the money-orders are reissued from the account office and one of the money order receipts thus issued has to be sent to the'branch post office to be pasted to the money order receipt at the Branch Office. In the money order forms also the relevant receipt number of thebranch post office is noted. The corresponding inner foils 61 Exts. 2, 4, g, 9/1, 9/2, 9/3 and 11are Exts. 2/1, 4/1, 9/4, 9/5, 9/6. 9/7 and 11/1 respectively.
It has been proved by P. W. 5 that both theinner and the outer foils of the money-orders receipts as aforesaid are all in the hand-writing of the accused and bear his signature. The accuseddid not deny that they were in his hand-writing and under his signature. From the inner foils that are retained in the post office, it appears that the dates found therein do not agree with the dates in the original receipts that were granted to the remitters. As against the dates, 21-6-1961, 1-6-1961, 30-5-1961, 12-6-1961, 19-6-1961, 21-6-1961 and 7-6-1961 appearing in the original receipts Exts. 2, 4, 9, 9/1, 9/2, 9/3 and 11, the corresponding dates appearing on the inner foils of theaforesaid receipts are 27-6-1961, 7-6-1961, 27-6-1961and 12-6-1961.
The four daily account books Exts. 13 to 13/3 were maintained in the hand of the accused and bear his signature and the aforesaid sevenitems of money orders were also incorporated in these daily account books and were not shown on the dates of actual receipt of the same, but wereshown at some later dates varying from five to eight days. They were shown on the very dates which find mention in the inner foils. In other words, the dates on the inner foils and the ac-count book completely tally although they do notagree with the dates given in the original receipts granted to the remitters.
Under the rules, the accused was to make every day the entry of every receipt of money for money-orders including the commission in the daily account book and immediately send the money order forms to the head office. The prosecution case is that the accused deliberately delayed in making the entry in the daily account book with a view to make a temporary misappropriation by retaining the money to himself even though for a very short period. On a comparison of the date-seals on the original receipts with those given on the inner foils, it appears that some tampering have been made with a view to give an impression that the dates given on the inner foils were the actual dates on which the money orders were received.
The accused though admitted to have received the moneys from Pws. 1 to 4 and to have issued the relevant receipts, his case was that the date seals on the money order receipts were given by the delivery agent and not by him. This, however, is difficult to accept. P. W. 5 the Inspector of Offices has categorically denied this position, and has stated that it is not the practice that the delivery agent has to affix the seals on the money order receipts. According to him, it is the postmaster who has to put the seal both on the inner and outer foils.
The accused admitted in his statement that the dates on the inner foils and outer foils do not agree, but he contended that he used to make necessary entries in the account-book the very day on which he received the money orders from the remitters. This obviously is incorrect as already seen there was clear delay of five to eight days when the outer foils are compared with the date given in the account books, Ext. 13 series. In view of the belated entries in the daily account-book, Ext. 13 series, there cannot be any doubt that the accused deliberately withheld the money for several days.
5. Mr. Ray, learned counsel for the appellant, contended that mere delay in effecting the entry will not amount to temporary misappropriation and the prosecution has to establish by clear evidence that the accused actually committed misappropriation of the amount in question. He relied on the evidence of P. W. 5 who admitted that P. W. 5 during his inspection checked the cash and found the same* to be correct. But it may be noted here that P. W. 5 made the inspection on 24-7-61, that is, about a month after the alleged misappropriation of the money. There is nothing in the evidence in support of the contention of the accused to show that there was no cash shortage during the period in question. No doubt, it is the duty of the prosecution to make out a clear case of misappropriation, but here it has been clearly found that the accused delayed in effecting necessary entries in the cash-book for a period of about a week for which he could not offer any satisfactory explanation. The defence witnesses only said that sometimes the post peon affixes the date seal on the money-order receipts.
On the other hand the accused contended that he effected the necessary entries in the account-book on the very day he received the money orders. Rule 139 of the Rules for Branch Postoffices insists upon regular preparation of the Branch Office Daily Account Book and Sub-rule (4) thereof provides that the Branch Office Daily Account is a due document and the Branch Post Master will be held responsible that it is correctly prepared and submitted every day to the accounts office. Thus, as above shown, the daily account book, Ext. 13, omitted to mention the aforesaid sum and was not prepared in accordance with the rules.
6. It is well settled that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or misappropriated the goods of his master. The question is one of intention and not a matter of direct proof. In a case reported in Krishna Kumar v. The Union of India, AIR 1959 SC 1390, their Lordship's held that the offence under Section 5(1) (c) is constituted when the property has been received by the accused for, or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Wrongful gain includes wrongful retention and wrongful loss includes being kept out of the property as well as being wrongfully deprived of the property. Therefore when a particular thing has gone into the hands of a servant, he will be guilty of misappropriating the thing in all circumstances which show malicious intent to deprive the master.
Their Lordships held that in the case of a servant charged with misappropriating the goods of his master, elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under duty to account to his master and had not done so. If the failure was due to accidental loss, then the facts being within the servant's special knowledge it is for him to explain the loss.
It is not the law of this country that the prosecution has to eliminate all possible defence or circumstances which may exonerate him. All the prosecution has to do is to establish a prima facie case in the first instance. It is enough to establish facts which gives rise to suspicion and then by reason of Section 106 of the Evidence Act throw the onus on him to prove his innocence. In the present case, the prosecution has fully established that the accused did not make the relevant entries in the daily account books and made delay of about seven days, though in the meantime other entries found place in the account book. That clearly shows the intention of the accused and the only inference that can be drawn from his conduct is that he committed temporary misappropriation of the aforesaid amounts which were entrusted to him for remittance.
7. Mr. Ray further contended that assuming it to be a case of misappropriation, each item was a distinct offence by itself, and in view of the prohibition under Section 234 (1) of the Criminal Procedure Code the accused should not have been put to trial at one time for more than three offences, and as such the whole trial was vitiated on that ground. On the other hand, it was contended by learned counsel for the State, on the basis of Section 222 (2) of the Criminal Procedure Code that in a case of criminal breach of trust ormisappropriation, it is sufficient if the charge specifies the gross sum in respect of which the offence is alleged to have been committed, and the charge shall be deemed to be a single charge for one offence within the meaning of Section 234, provided the time elapsed between the first and the last transaction did not exceed one year.
It was contended that the charge was perfectly legal, as the accused had been charged for misappropriation of a gross amount of Rs. 945.25, and the offences were committed within a space of 1 year. Alternatively his contention was that the offence under Section 5 (1) (c) was a comprehensive one so as to include any number of items of misappropriation and as such the charge was not hit by Section 234 Criminal Procedure Code. Here, we are dealing with a case of 'misconduct' under Section 5 (1) (c) of the Prevention of Corruption Act. Clause (c) runs as follows --
'5. (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duties;
(a) x x x
(b) x x x
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do .....'
This criminal misconduct is punishable under Section 5 (2). No doubt some common element in the offence of misappropriation as contemplated under Section 405, Indian Penal Code and 'criminal misconduct' under Section 5 (1) (c) stated above, but it cannot be disputed, that they are two distinct offences, see Om Prakash v. State of Uttar Pradesh, (S) AIR 1957 SC 458. In that case it was held by their Lordships that Section 5 (1) (c) of the Prevention of Corruption Act creates a new offence called 'misconduct' and the same is much wider in its amplitude than Section 405. It appears to me that the word 'misconduct' as appearing in Section 5 has in its context a wider import and application and is not confined to a single act of misappropriation, but may also embrace in its fold many similar acts committed by one accused. All such acts may collectively constitute an offence under Section 5 (1) (c) and can be tried in one trial and such a trial will not be hit by the limitation of Section 234 (1) of Criminal Procedure Code. A contention similar to that now raised here by the learned counsel for the appellant, was also advanced in the case reported in Biswabhusan Naik v. State of Orissa, AIR 1952 Orissa 289. In that case the accused was convicted under Section 5 (2) of the Prevention of Corruption Act for 6 items of bribery. It was contended on behalf of the accused that the trial was illegal being contrary to the provisions of Section 234 Criminal Procedure Code.
Their Lordships held that where the trial of the accused is only for the single new offence of criminal misconduct under Sub-section (2) of Section 5 of the Prevention of Corruption Act and not for specific offences under Section 161, Indian Penal Code, the limitation under Section 234, Criminal Procedure Code has no application. The policy underlying Section 234, Criminal Procedure Codeis not to cause undue harassment or confusion to the accused by giving evidence of a large number of items covering over a unduly long period. In proper cases to avoid any prejudice to the accused the Court may insist upon the prosecution to limit itself to a reasonable number of items of misappropriation or the period of time. Whether in a particular case, prejudice is likely to be caused to the accused or not is for the Court to decide. In the present case however, no question of prejudice can arise as the charges were confined only to a few items and that within a period of about a month or so.
8. Learned counsel for the appellant also contended that in the absence of sanction as required tinder Section 6 of the Prevention of Corruption Act, the trial is illegal. But here by the time the cognizance of the offence was taken, the services of the accused were already terminated (Ex. 14) and as such, he had ceased to be a public servant on the date when cognizance was taken. It is well settled that no sanction is necessary to such cases, vide Ram Dhyan Singh v. State, AIR 1953 All 470, State of Bombay v. Viswakant Srikant, AIR 1954 Bom 109. Moreover the accused was a temporary employee under the Postal Department. In a case reported in R. R. Chari v. State of U. P., AIR 1962 SC 1573, their Lordships held that the word 'employed' in Clauses (a) and (b) of Section 6 in the context must only mean those who were 'permanently employed'. Thus, none of the contentions raised on behalf of the appellants can be accepted.
9. A case under Section 5 (1) (c) of the Prevention of Corruption Act has been well made out against the accused and the conviction of the accused under Section 5 (1) (c) must accordingly be upheld. No doubt the minimum sentence has been provided under the Section, but the Court has also been given the power to pass a lesser sentence in appropriate case. In consideration of the facts, however, that the accused is a fairly young man, and the period of misappropriation was very short and he had credited the sums, though after a little delay, I think the ends of justice will be best served by giving him a lighter sentence. While, therefore, maintaining his conviction, I would reduce the sentence passed by the learned Special Judge to a period of two months. The sentence of fine with the default sentence, are maintained.
10. With this modification in the sentence the appeal is dismissed.