A.S. Bains, J.
1. This petition is directed against the judgment dated July 19, 1976, rendered by the learned Additional Sessions Judge, Sangrur, upholding the trial Magistrate's judgment dated Aug. 5, 1975, vide which the petitioner was convicted under Section 409, I.P.C and sentenced to three years' rigorous imprisonment and a fine of Rs. 5,000 or in default of payment of fine, to undergo further six months' rigorous imprisonment.
2. The prosecution case as set up at the trial was as under:
The petitioner was working as a Sarpanch of village Dirba in the year 1973. On July 3, 1973, Shri Ajaib Singh, Block Development Officer, Sunam (P.W. 1) checked the records of the Gram Panchayat and found Rs. 13,398.68 P. as cash in hand with the petitioner. Similarly, on Jan. 23, 1974, Shri Jatinder Pal, Sub-Divisional Magistrate (P.W. 3) conducted the inquiry and he found Rs. 21,359.21 P. as cash in hand with the petitioner. The petitioner, it is alleged, on both these occasions was asked to deposit the said amounts, which he promised to do so by his written undertakings, which are Exhibits PA and PD. On his failure to do so, the case under Section 409, I.P.C. was got registered by the Sub-Divisional Magistrate, Sunam in Police Station Dirba vide First Information Report, Exhibit PW1. After completion of the investigation, the petitioner was tried, convicted and sentenced as aforesaid.
3-4. Mainly the conviction of the petitioner is based on the evidence of P.W. 1 Shri Ajaib Singh, Block Development Officer and P.W. 3 Shri Jatinder Paul, Sub-Divisional Magistrate, Sunam. Both these witnesses found the cash in hand with the petitioner as described in the earlier part of this judgment and in spite of the promise the petitioner failed to deposit the same. According to the rules, the petitioner was competent to keep with him not more than Rs. 250 as cash in hand.
5. After the close of the prosecution evidence, the petitioner was examined under Section 313, Cr. P. C. He denied the prosecution allegations and stated that his signatures on documents Ex- PA and PD promising to pay the said amount were obtained by the Police under threat of imprisonment; that the witnesses were inimical towards him and that the amount in question had been spent in litigation over the Jumla Malkan Property and detailed resolution, Exhibit PG, dated Jan. 26, 1974, relates to that expenditure. He also produced in defence 10 witnesses and he himself appeared as his own witness as D.W. 11. He also produced documents, Exhibits D-22 to D-29, pertaining to the civil litigation going on between the Gram Panchayat and the private persons who had illegally occupied the Panchayat land and documents, Exhibits D-2 to D-21, receipts showing the expenditure incurred.
6. I have perused the record. There is not much dispute on the facts. The petitioner admitted the amount of Rupees 21359.21 P. as the cash in hand with him, but he gave the explanation that the amount in question was not embezzled by him but was spent in litigation over the Jumla Malkan property and that he was authorised to do so by a resolution, Exhibit PG, dated Jan. 26, 1974, which was passed with regard to expenditure in connection with that litigation. He also produced in defence 10 witnesses and he himself appeared' as his own witness as D.W. 11. Most of the defence witnesses are the Members of the Gram Panchayat and are the respectables of the village. Teja Singh, Member Panchayat (D.W. 1) and Chhota Singh (D.W. 2) had deposed that there was a civil litigation for the Panchayat land in between the Panchayat and the private parties and that Jagrup Singh Sarpanch (the petitioner) was pursuing civil litigation and as such he had incurred the expenses and that a resolution Exhibit D-l, dated Jan. 26, 1974, was passed for those expenses. Amar Nath (D.W. 3), Rajinder Singh (D.W. 4) and Baldev Kumar (D.W. 5) had produced the records of file No. 238, dated 16-10-1972, file No. 504/SDM, dated 14-12-1974 and appellant file No. 111/CA of 1974, respectively. Rajinder Singh (D.W. 4) stated that about 28 hearings were conducted in case No. 504/ SDM and Baldev Kumar (D.W. 5) stated that 27 adjournments were granted in Case No. 111/CA of 1974. Similarly, Barjinder Sharma (D.W. 7) who brought file No. 110 of 10-9-1974, stated that about nine adjournments were granted in that case. Rameshwar Dass (D.W. 6) had stated that he was a Member, Panchayat, Dirba and that Resolution, Exhibit DW6/ A, dated Aug. 13, 1972, was passed by the entire Panchayat. Gurdial Kaur (D.W. 8) stated that there was a land of Jumla Malkan of village Dirba and Jagrup Singh Sarpanch (the petitioner) was cashier of the entire village and it was resolved to get back this land. She also stated that she was the Member of Panchayat and there were numerous adjournments in that case and that 20 to 25 persons used to attend on every date of hearing. Tek Singh (D.W. 9), a member Panchayat, stated that the entire village had resolved that on the litigations pending in the Courts regarding the land of Panchayat about Rs. 20,000 to Rs. 25,000 were spent by Jagrup Singh, petitioner, after getting the concurrence of the entire village. Bhupinder Singh (D.W. 10) stated that the entire village passed resolution, Exhibit DW6/A and Jagrup Singh (petitioner) was appointed Treasurer vide that resolution and the amount was to be spent on the litigation pending regarding the Panchayat land. The petitioner while appearing as his own witness as D.W. 11 stated that he had spent the aforesaid amount in pursuance of the resolution, Exhibit D-l, on the case pending in the Court regarding the land of Jumla Malkan. As observed earlier, he produced in defence documents, Exhibits D-22 to D-29, pertaining to the civil litigation going on between the Gram Panchayat, Dirba and the private persons who had illegally occupied the Panchayat land. He also produced receipts, Exhibits D-2 to D-21, showing the expenditure incurred by him in connection with the aforesaid litigation. From the perusal of the evidence of the prosecution and the defence it is plain that the amount in dispute remained with the petitioner, which he spent on the litigation going on between the Gram Panchayat and the private parties in respect of the Jumla Malkan land-Under the rules, he could keep only Rs. 250 as the cash in hand, but in his zeal to recover the Panchayat land from the illegal possession of some of the private holders, he did not care for the rules and kept that amount with him. Before a person can be convicted under Section 409, I.P.C. dishonest or criminal intention is to be proved. It was stated at the Bar by the counsel for the petitioner that the petitioner is a graduate and was a young man and was unanimously elected by the Panchayat and that he did much for the development of the village and by his efforts the income of the Panchayat also increased as is clear from the resolution. Although he was negligent in not keeping the proper accounts, but not only the Panchayat but the whole village was satisfied with his honest functioning. It may be highlighted that not a single villager had complained against the petitioner. Rather the Members of the Panchayat and the other villagers had come in defence and supported the petitioner's version. The ingredients of misappropriation, to my mind, are not (satisfied in the present case. Firstly, the criminal intention to misappropriate the Panchayat's money dishonestly is not proved. Secondly the petitioner had not caused any wrongful loss to the Panchayat or has gained personally by keeping the amount in question with him for spending it for the welfare of the village and the Panchayat in accordance with the wishes of the villagers. Not a single person of the village stated that the petitioner had misappropriated the amount for his personal gain. Exhibits PA and PD, which are writings obtained from the petitioner, by the Block Development Officer Shri Ajaib Singh (P.W. 1) and the Sub-Divisional Magistrate Shri Jatinder Paul (P-W. 3), promising to deposit the amount in question were taken in the presence of the police and according to the petitioner these writings were got from him under duress. Shri Om Parkash, Secretary of the Panchayat (P.W. 4) made a positive statement that the petitioner had said that he had spent the money on litigation regarding the Jumla Malkan land which he shall account for, but he had asked the petitioner to show accounts. On the record, the petitioner produced documents, Exhibits D-22- to D-29 which show that a large number of revenue, civil suits and prosecutions under Section 107/151, Cr. P. C. were going on between the Gram Panchayat, Dirba and the private holders of that village regarding the Jumla Malkan Deh. It is also proved on the record vide Exhibits D-2 to D-21 that a large sum of money was spent on the litigation between the Gram Panchayat and the trespassers of Jumla Malkan Deh. It is a matter of common knowledge that the litigation is very expensive these days and the litigant does not go alone to the Courts; he is always accompanied by some of his supporters and witnesses and the resolution of the Panchayat has clearly exonerated the petitioner and it is also spelled out from the circumstances that the petitioner has not embezzled the amount in question. He had no dishonest intention to misappropriate the amount which he had kept in his possession against the rules. The number of persons arrayed in the litigation was very large. Practically all the proprietors of the village were on the one side and the trespassers on the other. The resolution, Exhibit D.W. 6/A was passed on Aug. 13, 1972, vide which the Panchayat had authorized the petitioner to spend the amount on the litigation and again vide resolution passed on Jan. 26, 1974, the expenditure so spent was confirmed. The resolution of 1972 is thumb-marked and signed by large number of persons and was passed in a gathering of about 400 proprietors. The irregularities committed by the petitioner do not come within the mischief of Section 409, I.P.C. It may, at the best, call for some departmental action. Moreover, it was the Panchayat money and the Panchayat is not a complainant in the present case.
7. For the reasons stated above, this petition is allowed and the conviction and sentence as recorded by the Courts below are set aside. The petitioner is on bail. His bail bonds shall stand discharged.