S.M. SIKRI, J.
1. These two appeals by special leave are directed against the judgment of the High Court of Gujarat in Criminal Appeals Nos. 16 and 17 of 1965. Criminal Appeal No. 16 arose out of Sessions Case No. 27 of 1964, wherein the appellant was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs 1000, or, in default, undergo further rigorous imprisonment for six months, for breach of trust committed in respect of a sum of Rs 8000. In Criminal Appeal No. 17 which arose out of Sessions Case No. 32 of 1964 the appellant was convicted and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs 1000, or, in default, to suffer further rigorous imprisonment for six months, under Section 406 of the IPC. The main judgment of the High Court is in Criminal Appeal No. 17 of 1965 and the reasons for dismissing both the appeals are in that judgment. We also propose to dispose of both the appeals by this judgment.
2. The relevant facts for the determination of the points raised by the learned Counsel for the appellant, Mr Chari, are as follows: On July 2, 1954, the Zund Cooperative Agriculture Multi-purpose Society Unlimited, hereinafter referred to as the Society was registered under the Cooperative Societies Act in Halvad Taluka, District Surendranagar of the then State of Saurashtra. At the relevant time Accused 1, Mistry Kanji Keshavji was part-time Secretary of the Society on a salary of Rs 35 per mensem, and one Koli Tapu Chaggan was its Chairman. The appellant Accused 2 was a social worker and was a member of the Legislative Assembly during the relevant time. He was also the President of the Halvad Taluka Congress Committee. Accused 3, K.P. Dave and Accused 4, G.P. Dave, are brothers. They were not accused in Sessions Case No. 27 of 1964. While Accused 4 was a partner in one firm, Kumar and Co., which was carrying on the work of building construction, Accused 3 was looking after the work of that firm on behalf of his brother, Accused 4. The Society had no office premises of its own and the records of the Society were kept in the house of its President, Koli Tapu Chaggan, who died in 1961.
3. The State of Saurashtra had set up a Backward Classes Board at Rajkot and the Board undertook various schemes for the rehabilitation of various backward classes. We are concerned with two schemes of rehabilitation, one of the Kolis and the other of Vedva Vaghris. It appears that the Board decided to implement the schemes through the Society.
4. On March 29, 1956, the appellant wrote to the Board in connection with giving relief to those persons who were willing to settle in village Zund. He asked for the necessary forms to be sent. On March 30, 1956, he submitted to the Board the names of Vedva Vaghris who were alleged to be residing around the three villages of this Taluk and stated that they were willing to settle under the above scheme. There is a post-script in the letter which stated:
“All correspondence in the above matter may be done with the Halvad Municipality because all these families are at present living in the jungle.”
Two of the 16 applications which were received by the Board had been attested by the appellant and 14 by an employee of the Social Welfare Centre at Halvad, Ramakant, PW 19. It is the case of the prosecution that all these applications were bogus applications. On March 31, 1956, the Board passed an office order sanctioning for the rehabilitation of the above 16 Vedva Vaghris Rs 500 as aid for the house, Rs 500 as aid for agricultural implements and Rs 200 for maintenance, each. The total amount of Rs 19,200 thus sanctioned was placed at the disposal of the Society. In the order it was stated as follows:
“It is requested to get the houses constructed for the applicants and to furnish the agricultural implements from this amount and the bills of the same should be submitted to this office.”
On April 18, 1956, receipt of cheque for Rs 19,200 was acknowledged and this cheque was deposited in the Saurashtra State Cooperative Bank Ltd., Halvad Branch. Formal receipt, dated April 24, 1956, was sent to the Board. This receipt was signed by the Chairman, Koli Tapu Chaggan and the Secretary, Mistri Kanji Keshavji. In the covering letter it was inter alia stated that the “amount will be paid to each family as per instructions issued by you”.
5. On April 24, 1956, the first step towards the commission of breach of trust was taken. An amount of Rs 28,800 was withdrawn from the Bank, in cash by the Secretary. This sum consisted of Rs 19,800 received for the rehabilitation of Vedva Vaghris and Rs 9600 which had been received by the Zund Cooperative Society for the relief of 8 families of Zund Vasahat.
6. On May 1, 1956, a remarkable resolution was passed by the Managing Committee of the Society for giving aid to 16 families, the resolution proceeded:
“The said amount was lying with the Society. But as the Vedva Vaghris are not willing to settle down in Zund, it is hereby resolved to hand over the said amount to Shriyut Labhshankar, M. Shukla, the President of the Taluka Samiti, Halvad and to see Backward Class Board and to request it to do the needful.”
The original in Gujarati was again translated for us by the counsel and it seems clear to us that the intention was that the appellant should contact the Backward Classes Board.
On May 3, 1956, the appellant passed the following receipt:
Zund Multipurpose Cooperative Society, Zund.
Received from you, the amount of Rs 19,200 ninteen thousand two hundred cash for the rehabilitation of Vedva Vaghris.
10 np. Stamp. (Sd/-) Labhshanker M. Shukla.”
The appellant has denied having actually received any amount against this receipt.
7. It appears that the Board wrote a letter, dated September 11, 1956, because there is a reference to it in Ex.101 a letter addressed to the Secretary, Backward Classes Board, Rajkot, which was found in the possession of the Secretary, Mistri Kanji Keshavji. In this letter it was stated:
“Jay Hind: Recd. you letter No PVB/6716, dt. 11-9-56.
Stamped vouchers, as per the scheme of Vedva Vaghris, are sent herewith. It is decided to construct the buildings as per the map enclosed herewith. Construction work with stones has already been started, but due to rain, it being impossible to go in the village, construction work will be started from the next week. It will be completed in the end of October.”
We saw the original and it appears that it is not signed by anybody but it has been found to be in the handwriting of the appellant.
8. Nothing happened for nearly two years. On June 10, 1958, the Board seems to have woken up and addressed two letters to the appellant, one in respect of the Zund Vasahat and the other in respect of the aid given for rehabilitation of the village Zund. The second letter, Ex. 433, is a cyclostyled letter with certain portions written in hand and is in the following terms:
“Shri Labhubhai Shukla,
The following aid is given by the Backward Class Board, for rehabilitation of village Zund of Halvad Taluka of your District. This amount is placed at your disposal. The expenditure bills from this amount are not received yet from you. Therefore, you are requested to send such bills within eight days from the date of the receipt of this letter to this office. If the bills are not sent within the above given period, one officer from here will come there to get the details.
1955-56 Sanctioned 1956-57 Sanctioned
Famlies Rs Famlies Rs
68 61,000 43 46,000
Secretary and Backward Class
The other letter dated June 10, 1958, sent by the Board Ex. No 432 reads thus:
“Shri Labhubhai Shukla,
Jaybharati: You are requested to send the details of Zund Vasahat in the attached proforma within 8 days from the receipt of the date of this letter. The names with caste of each Vasahati are to be furnished. If
the number of names is more, you are requested to send these names and caste by separate proforma.”
9. On October 28, 1961, the Society was ordered to be liquidated and on November 16, 1961, PW 1, took over the Society as liquidator.
10. Accused 1 did not hand over the Rojmal and vouchers for the period May 26, 1954 to June 30, 1956. On investigation it was found that Accused 1 had withdrawn Rs 1,28,800 piecemeal by cheques by September 25, 1963.
11. A complaint was filed on September 25, 1963 and on May 4, 1964, Accused 1 produced a number of documents before the Police Inspector, C.I.D. Among those documents were Ex. 101, the draft written by Accused 2, Ex. 236, also a draft written by Accused 2, Ex. 4, the receipt of Kumar and Co. for Rs 6500, Ex. 139, the receipt of Rs 1800, Exs. 432 and 433, the cyclostyled letters addressed to Accused 2 by the Board and Ex. 87, the receipt given by Accused 2 for Rs 19,200. Ex. 236, admitted by Accused 2 to be in his handwriting, reads thus:
“Labhshankar M. Shukla, Halvad
Backward Class Board,
Jayhind. All vouchers and statements of the grant for rehabilitating the families of Zund Vasahat and Vedva Vaghris and of the maintenance charges are sent herewith as per your order.
It is specially mentioned here that in the name of Koli Deva Khima of Zund Vasahat twice the amount is received. First time Rs 1200and the second time Rs 700, and the second time the name is stated as Deva Khima Rava. So, amount of Rs 700 is lying with us which will be returned to you after hearing from you.”
This letter was not received by the Board.
12. The learned Sessions Judge held that it was proved that the amount of Rs 19,200 was entrusted to Accused 2 by the Zund Cooperative Society for the rehabilitation of 16 Vaghri families and that he committed criminal breach of trust with respect to the amount of Rs 8000 and also with respect to the amount of Rs 11,200. The High Court concurred with these findings.
13. The learned Counsel for the appellant contended that though the findings of fact were concurrent this Court should reverse the findings because the High Court did not consider all the possibilities which arise out of the documents admitted to have been signed, attested or drafted by the appellant. He said that three possibilities arise: (1) that the Secretary, Accused 1 and the appellant, Accused 2, worked together to commit breach of trust of Rs 19,200; (2) that the Secretary, Accused 1, in fact handed over the money to the appellant and it was the appellant who was responsible for misappropriation and (3) that Accused 1 in fact misappropriated large amounts received from the Board and under the guise of taking advice and guidance got the appellant to sign, attest or draft the admitted documents and kept these with himself for the purpose of his dishonest defence. He said that neither the Sessions Judge nor the High Court seriously considered which of these possibilities was more probable. He said that the facts proved in the case totally militate against the case which, according to both the Sessions Judge and the High Court, has been proved. He urged that the appellant had no official position in the Society but being M.L.A. of the area his advice and guidance was sought by Koli Tapu Chhagan and Accused 1. In this connection he pointed out the evidence of Deva, PW 46. Deva was a member of the Zund Cooperative Society and he said that Accused 2 had helped in floating the Society and he used to give guidance. He, however, stated that the amount of Rs 19,200 for the rehabilitation of Vaghris was got sanctioned by Accused 2.
14. The learned Counsel further submitted that it is established that the entire amount of Rs 1,28,800 admittedly withdrawn by Accused 1 was not accounted for. The sum of Rs 19,200 being part of the bigger sum, it showed that the real culprit was Accused 1 and Accused 2 was an innocent victim of Accused 1's machination. He said that this was clear because the resolution passed by the Society on May 1, 1956, which must have been passed at the instance of Accused 1, was false as in it, it was stated that the Vaghris were not willing to settle in Zund when in fact 16 applications had been sent to the Board on which the Board had sanctioned the amount and placed it at the disposal of the Society. His statement was also false because the amount was not lying with the Society but it had already been withdrawn by Accused 1 on April 24, 1956.
15. The learned Counsel further argued that the Society had no right to hand over the money to the appellant and should have obtained the sanction of the Board prior to the handing over the amount. The Society never wrote to the Board that they could not entertain the scheme of settling Vedva Vaghris and that the appellant would be willing to do their job, if he was given the funds. He further said that the receipt for Rs 19,200 admittedly given by the appellant, could not have remained with Accused 1 and if Accused 1 had in fact paid the amount to the appellant on May 1, 1956, as alleged, in that event Accused 1 would have forwarded the receipt to the Board, at least to show that the Society had washed its hands of the scheme.
16. The learned Counsel further contended that Ex.433, which is ostensible addressed to the appellant, mentions amount in addition to Rs 19,200 viz. Rs 61,000 for 68 families in 1955-56 and Rs 46,000 for 43 families in 1956-57. He urged that it is nobody's case that the appellant had anything to do with the other schemes and since the Board has denied that it had addressed this communication to the appellant the inference that should have been irresistibly drawn is that these documents were fabricated by Accused 1 to shift the blame entirely on the appellant. He said that this important piece of evidence which tilted the scales in favour of the appellant had been completely lost sight of by both the courts.
17. The learned Counsel next urged that the fact that these documents were not found along with the papers belonging to the Society at the house of Tappu Chhagan but were produced by Accused 1 on May 4, 1964, only at the time when his arrest was imminent suggested clearly that he had got these documents ready for the purpose of defence and for shifting his blame on the appellant.
18. He finally urged that the fact that the partners of Kumar and Co., the contractors, passed a receipt for Rs 6500 in favour of the Society and not in favour of the appellant clearly showed that it was Accused 1 who handled Rs 19,200 and made disbursements out of it. A-3 and A-4 having been acquitted, neither the Sessions Judge nor the High Court have considered the effect of their acquittal on the receipt passed by them which on their own admission was for cash received from the Society.
19. We are satisfied that the High Court and the learned Sessions Judge came to the correct conclusion and it was the appellant who received the amount of Rs 19,200 and committed a breach of trust in respect of that amount. It may be that without the assistance of the Secretary the appellant would not have been able to get hold of the money but the appellant was from the beginning party to the first step taken to get hold of the money from the Board and out of the 16 applications which were alleged to have been made by the Vaghris to the Board two were attested by the appellant. The Vaghris who are alleged to have thumb-marked or have been parties to the application have denied having ever made the application or received any amount.
20. The appellant was responsible for getting the sanction of the Board. He must have known at that time that it were not the Vaghris who were going to be rehabilitated but either he or the Secretary was going to get the benefit out of the money. The resolution of the Society authorising the handing over of the money to him must have been with his knowledge for in the receipt which he signed it is stated that the amount was being received for the rehabilitation of the Vaghris. Neither the Society nor he contacted the Board after the passing of the resolution. As we have already said, the resolution required him to get into contact with the Board. He has given no satisfactory explanation for having signed the receipt. It is not a receipt being issued in favour of the Government which, in certain cases, requires that there should be a pre-receipt. No such rule or practice has been pointed out regarding cooperative societies that they expect a pre-receipt. The words “in cash” in the receipt are also important and showed that the amount must have been received by him.
21. The draft of the letter in reply to the Board's letter, dated September 11, 1956, which was never sent, shows that he knew about the scheme of rehabilitation of Vaghris and he was purporting to send some stamped vouchers. His explanation that he was drafting such letters because the Secretary could not do so does not appeal to us. The Secretary was the Secretary of various societies and we are unable to appreciate that he would not be able to draft routine replies meant for the Board.
22. We are unable to agree with Mr Chari that Exs. 432 and 433, the cyclo-styled letters addressed to the appellant by the Board were forgeries. If they are not forgeries and they were addressed to the appellant he would have taken some step to approach the Board and to protest to it that he had nothing whatsoever to do with any of these amounts mentioned in Ex. 433. No such protest was made.
23. In view of these considerations we are unable to interfere in special leave with the concurrent findings of fact arrived at by the learned Sessions Judge and the High Court.
24. The learned Counsel finally urged that the appellant who is on bail should not be sent back to jail. We are unable to accede to this request. He has, if anything, been treated leniently, by the learned Sessions Judge.
25. In the result the appeals fail. The appellant should surrender to his bail.