R.N. Aggarwal, J.
(1) Prabhu Dayal Sharma, Appellant herein, a postman in the Milkaganj Post Office, was tried in the court of Shri M.K. Chawla, Addl. Session Judge, on the charges under section 409 of the Indian Penal Code and section 52 of the Indian Post Office Act. The trial Judge found the accused guilty of the offences charged with and sentenced him to rigorous imprisonment for 4 years and a fine of Rs. 1000.00and in default of payment ' of fine to under go rigorous imprisonment for 6 months. The Judge further ordered that out of the fine, if realised, a sum of Rs. 968. 35P be paid to the Posts and Telegraphs Department. Against his conviction and sentence the accused has came in appeal.
(2) On various dates in the month of April 1968, the appellant was entrusted with the following money order forms for disbursement :-
(1)Value payable money order No. 1678 dated 13th April, 1968 payable to M/s. Manik Electronics Company ; (2) Foreign Money order No. 6157 dated 16th April, 1968 payable to Atar Singh Bhatia; (3) Value payable money order No. 911 dated 26th March, 1968 payable to M/s. Sandhu Radio Service ; and (4) Value payable money order No. 37 dated 6th April 1968 payable to M/s. Charanjit.
(3) The money order forms were returned with the endorsements that the amounts had been paid to the payees.
(4) In the month of March 1969, Gyan Chand (Public Witness 1) Inspector of Post Offices, West Sub-Division, Malka Ganj, received a complaint through the Senior Superintendent, Post Offices, from Manik Electronics that they had not received the amount of the value payable money order for Rs. 45. 35P dated 13th April. 68 payable to Manik Electronics. PW1 mad? an enquiry into the complaint and discovered that the said money order was entrusted to Prabhu Dayal (accused) for payment to the payee but the amount was not paid to the payee. Public Witness PW1 lodged a written report (Ex. Public Witness PW1/A) at the Police Station. Similarly, PW1 received complaints in regard to the other money orders detailed above and on enquiry found that they had been entrusted to the accused for disbursement but the amounts had not been paid to the payees. The money order paid vouchers were shown to the payees who denied the receipt of the amounts. Reports were also lodged in regard to the other money orders.
On coming to know that the misappropriations had been detected the accused absented himself from duty. He was declared a proclaimed offender and was later arrested. The accused in his statement at the trial admitted that at the relevant time he was posted as a Postman in the Malka Ganj Post office The accused stated that on the relevant dates he was on leave. The accused in his defense examined F. A. Sultani (DW 1), Town Inspector, Malka Ganj. Post Office. After hearing Shri Maheswari on behalf of the appellant and on a careful perusal of the record I am of the view that the prosecution has succeeded in establishing the charge of misappropriation against the appellant beyond any doubt. Exhibits Public Witness PW1/B, Public Witness PW1/F Public Witness PW1/G and Public Witness PW1/H are the money orders in question. The value payable money order Ex. Public Witness PW1/B is in the amount of Rs. 45.35 and the endorsement on the money order paid voucher shows that the amount was paid to the payee on 18th April. 1968. Ex. Public Witness PW1/F is a foreign money order and bears the date 16th April, 1968. It is for a sum of Rs. 534.00 The endorsement on the money order paid voucher shows that it was disbursed on 22nd April. 1968 Ex. Public Witness .1/G is the value payable money order in the Amount of Rs. 228.00. It bears the date 26th March, 1968. The endorsement on the money order paid voucher shows that it was delivered to the payee on 3rd April, 1968. The last value payable money order Ex. Public Witness PW1/ H is in the amount of Rs. 161.00 and the endorsement on it shows that it was delivered to the payee on 13th April, 1963. Bachan Singh (Public Witness 2) was at the relevant time posted as Postal Clerk in Malkaganj Post Office and it was his duty to distribute the money orders, value payable money orders and foreign money orders to the postmen Public Witness PW2 deposed that the money orders and value payable money orders pertaining to beat No. 18 were disbursed by the accused, that he had after making entries in M. O. Register No. 3 delivered the money orders Ex. Public Witness PW1/ B. Public Witness PW1/G and Public Witness PWI/H to the accused for disbursement that the accused had returned the money order paid vouchers to him which showed that the accused had paid the money order amounts to the payees. The witness testified that ihe endorsements Ex. Q3 to Q6 on the money orders in question in regard to the payments of the amounts are signed by the accused. Kishen Lal Manchanda (Public Witness 3), who was at the relevant time Cashier in Malkaganj Post Office, deposed that he had paid the amounts of the money orders inquestion to the accused on the dales mentioned in the money orders and the accused had acknowledged the receipt of the amounts in M. 0. Register No. 3, that the entries Ex. PW3/A to Public Witness PW3/D in M.O.3gwere signed by the accused in his presence. There appears to be no reason to doubt the veracity of the of Public Witness PWs 2 and 3. It stands established from their testimony that the money orders EX. Public Witness PW1/B, Public Witness PW1/F, Public Witness PW1/G and Public Witness PW1/H were banded over to the accused for disbursement on the dates mentioned in the money order forms and the accused had received the amounts of the said money orders vide acknowledgements Ex Public Witness PW3/ A to Public Witness PW3/D. The accused had certified to have made the payments to the payees vide endorsements Ex. Q3 to Q6 which bear the signatures of the accused. Shri M.K. Jain (Public Witness 10), Sr. Scientific Officer, Central Forensic Laboratory, compared the disputed signatures Q3, to Q6 with the signatures Ex. A1 to A7 of the accused and gave the opinion that the disputed signatures are in the hand of the same person who had signed Ex. at to A7. The testimony of the expert puts it beyond doubt that the money orders in question were disbursed by the accused. Harbhajan Singh (P.W. 5) deposed that he had sent one transistor to Ashok Radio Service, Hazaribagh Road, Ranchi by Value Payable Parcel post in the amount of Rs. 161.00 and that the amount of the V. P. P. was not received by him although the parcel had been delivered to the person concerned. The witness further stated that he had made enquiries from the Malkaganj Post Office about the Value Payable Parcel and he was informed that the money order had been paid to him on 13th April, 1968, that the money order paid voucher Ex. P. W. 1/H did not bear his signatures and he had not received the amount of the said V. P. P. Public Witness . 13 Ashok Kumar deposed that the Value Payable Parcel in the amount of Rs. 161.00 was received by him and he had paid the amount of the said parcel. Kaleshwar Nag (P. W. 14), Cierk, Head P. O. Ranchi, testified that V.P.P. No. 178 was received and delivered to Ashok Radio Service against payment of Rs. 161.00. Manik Chand Jain (P. W. 6) deposed that the money order paid voucher Ex. P. W. 1/B did not bear his signatures and he had not received the amount of Rs. 45.35. It stands established from the testimony of Public Witness s.5and 6 that the amounts of the money orders Ex. Public Witness . 1/H and Public Witness . 1/B were not paid to them and the money order paid vouchers did not bear their signatures.
(5) The defense of the accused is that he was on leave on the relevant dates. This defense of the accused has no truth in it. D. W. 1 F. A. Sultani, Town Inspector, deposed that he had brought with him the leave record of the accused for the months of March and April 1968 and that in the month of March the accused was on leave on 8th and 9th March 1968. There is no evidence on the record that the accused was. on leave on the relevant dates.
(6) The above discussion of the evidence puts it beyond doubt that the money orders Ex. Public Witness . 1/B, Public Witness .1/G, Public Witness . 1/F and Public Witness . 1/H were given to the accused for disbursement to the payees but the accused had misappropriated their amounts.
(7) Shri Maheshwari, learned counsel for the appellant, contended that the money entrusted to a postman by the postmaster for payment of the money order cannot bs said to constitute a 'postal article' in course of transmission by post or anything contained therein as contemplated in section 52 of the Post Office Act and, thereforee, the . conviction of the accused under section 52 is not legal. The counsel in support of his contention relied upon Neelacanta Iyer Vaidyanatha , Sarma v. The State. I am unable to agree in the above contention of the counsel. Section 43 of the Indian Post Office Act (hereinafter called the Act) gives power to the Central Government to maintain money order system and to make rules as to remittances. The Central Government has made rules for remittances of small sums of money through the Post Office by means of money orders. Section 2(i) of the Act defines the expression 'postal article' and it reads as :-
(I)'the expression 'postal article' includes a letter, postcard, newspaper, book, pattern or sample packet, parcel and every article or thing transmissible by post .....'.
From a reading of the definition of the expression 'postal article' it appears that every article or thing transmissible by post would be a postal article. Section 43 and the Rules framed there under provide for the transmission of small sums of money through post office by means of money order. There appears to be little doubt that a money order would be a postal article within the meaning of the expression 'postal article' as contained in the Act. Section 3 of the Act provides that a postal article shall be deemed to be in course of transmission by post from the time of its b 'ing delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise being disposed of under Chapter VII. A remittance of money through post office by means of a money order will be deemed to be in course of transmission till the money order amount is paid to the payee. The payment of the money order amount to the post-peon by the postmaster is, to my mind, not relevant. I have carefully gone through the authority relied upon by Shri Maheshwari and, in my view, it is distinguishable. In the said case the complaint against the accused therein was that he had dishonestly misappropriated the money that had been entrusted to him by the postmaster for payment of the money order sent by Public Witness .'s 2 husband. It was on the facts of that case that their Lordships had found that the money entrusted to the post-peon by the postmaster for payment of the money order cannot be said to be postal article in course of transmission by post as contemplated by section 52 Indian Post Office Act. On the facts found in the case in hand, there can be no doubt that the accused had not made the payments of the money orders to the payees and had secretly misappropriated the amounts. The appellant would be clearly guilty of the offences charged with. However, the Additional Sessions Judge had not awarded any separate sentence for the conviction under section 52 of the Indian Post Office Act. Shri Maheshwari contended that the sentence awarded to the accused is rather excessive. There appears to be some force in this contention of the counsel. I maintain the conviction but reduce the sentence of imprisonment from 4 years to 2 years. The sentence of fine is maintained. With this modification the appeal is dismissed.