(1) The petitioner Bishamber Dayal was employed as a rent collector on behalf of the Delhi Development Authority (DDA) in respect of J.J. Colony, Najafgarh. It was alleged that out of the amount collected by him from the plot holders on various dates from 13.2.1970 onwards on receipt books Nos. 293 and 323 out of which book No. 323 was a stolen one, he did not deposit in the office of the Dda an amount of Rs. 1982.80 relating to receipt book No. 293 and Rs. 1396.50 relating to receipt book No. 323. He was tried for offences under sees. 409 and 381 IPC.
(2) The learned Metropolitan Magistrate acquitted him of the charge under section 381 Ipc, but convicted him under section 409 by his order dated 3.11.1976. He sentenced him to rigorous imprisonment for nine months and to a fine of Rs. 500.00 in default whereof to rigorous imprisonment for three months. His appeal was dismissed by the Addl. Sessions Judge on 19.4.1977. Hence, this revision.
(3) The stand taken by the accused was that he was a raw hand and was falsely implicated. The receipt book No. 293 was not issued to him, nor was the other receipt book No. 323 stolen by him. He denied to have issued any receipts out of the receipt books Nos. 293 and 323. He denied by various signatures on the carbon copies of the receipts. Since the matter largely turned upon the proof of the signatures he was produced before the Judicial Magistrate I Class, Shri Chakravarty (Public Witness 11) on 10.6.1971 for giving his specimen signatures. He had declined to give his specimen signatures, so that no expert examination of the signatures could take place. But the evidence of the officers of the Dda is sufficient to prove the identity of his signatures. B.C. Choudhary (Public Witness 17) Superintendent Accounts, disposed that when they were closing the account in May/June, 1970, they discovered that the challans of the receipts Nos. 29241 to 29300 of receipt book No. 293 and of receipts Nos. 32234 to 32288 of receipt book No. 323 were not received from the cashier. Book No. 293 was available in the office and the book No. 323 was called from the accused. These were later on seized on 12.5.1970 by the S.I. Roshanlal (Public Witness 13) from K.N. Bhagat(PW6)videEx.PW13/E. The accused had made an application on 22.12.1969 for issue of a receipt book, vide Ex. Public Witness 12/A. R.L. Gaur (Public Witness 12) deposed that receipt book No. 293 was then issued to the accused. Receipt book No. 323 was issued to Randhir Singh. K.N. Bhagat (Public Witness 6) lodged a report on 5.3.1970 that the accused had stolen one receipt book from the Rent Collection Office of Jj Colony. He further deposed that the carbon copies of receipts 32201 to 32288 of the book No. 323 were in the hand and under signatures of the accused. So were the receipts 29241 to 29300 of book No. 293. Since he had been seeing the accused writing and signing he was able to identify the hand writing and signatures of the accused on the receipt books. R.L. Chopra (Public Witness 11A) who was the cashier from 1967 to 1970 in the Dda deposed that receipt book No. 293 was issued to the petitioner and he was able to identify the signatures of the petitioner because he used to receive papers written and signed by the petitioner during the course of his duties. He identified the signatures of the petitioner on the receipts in dispute. He also brought the records of the challans, cash books and the receipt in court and after looking into the said records he stated that the accused deposited by various challans the amount collected by him on receipts 29201 to 29240. This amount has been entered in the cash book. In the record no challan of entry in the cash book is found with regard to the amount collected on the remaining 60 receipts. He also deposed that it was the accused who deposited the amount of the receipts 32201 to 32233 of the receipt book No. 323, but did not do so in respect of the receipt Nos. 32234 to 32288. The evidence of this witness was not shaken in any manner and I see _ no reason, as the courts below did not, that the disputed receipts were issued by the petitioner, but the amount thereof were not deposited by him with the DDA. The prosecution has produced a number of depositors who have deposed that they have deposited the money and also got the receipts but the person who received the money was not the accused. One thing is certain beyond doubt in this case that receipt book No. 293 was issued to the accused. Rent was collected and receipts were issued out of that book. But he denies that he did so. It was, thereforee, incumbent upon him to explain how the receipt book went out of his hands and how some one else and not he collected the rent. In these circumstances it shall be held that it was he who collected the rent, issued receipts thereforee and did not deposit the amount with the DDA. That clinches the issue against him. As regards the book No. 323 too, I see no reason to disbelieve the prosecution. The learned counsel for the petitioner submitted that the money was neither received by the petitioner nor were any of the disputed receipts signed by him. No inference could be drawn against the accused on account of his refusal to give the specimen signatures because the accused could not be asked to give specimen signatures at the investigation stage. He relies upon State of U.P. v. Ram Babu Misra, : 2SCR1067 . It was held in that decision that the language of section 73 of the Evidence Act does not enable the Magistrate to give a direction to an accused person when the case is still under investigation to give his specimen hand writing. That section contemplates pendency of some proceedings before a court. It does not permit a court to give the direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in a court. It is true that the accused cannot be compelled to give his specimen signatures and hand writing. But it is one thing to compel a person to give his specimen signatures and hand writing and it is another to take such hand writing and signatures when the accused has no objection to the giving there of. Here was a case which solely depended upon the signatures of the petitioner on the disputed receipt books. If he had not really signed, then he would have volunteered to give his signatures so that he could be cleared of the allegation. The courts below, thereforee, were justified in drawing an adverse inference against the accused. I, thereforee, find no merit in this argument. Besides, as I said earlier the signatures have been proved by the officers of the Dda, who were dealing with the accused.
(4) The next contention of the learned counsel for the petitioner is that no offence under section 409 Indian Penal Code is made out as long as entrustment is not proved. The learned counsel relied upon Roshan Lal Raina v. State of J &K;, : 1983CriLJ975 . The accused in that case was a tourist clerk in a Dak Bungalow and it was alleged that a sum of Rs. 70.80 collected from the tourist was misappropriated by him. But it was not proved that the money was ever entrusted to him by the chowkidar who used to collect the money. It was in these circumstances that the accused was not found guilty under section 409. In this case, it is proved that the receipt books at least No. 293 containing the disputed receipts, was given to the petitioner. It is also proved that the money on these receipts His signatures on the carton copies of the receipts have been proved. It is also proved that some of the amount of the receipts was deposited in the Dda while that of some receipts was not. The only obvious conclusion, thereforee, is that the petitioner did receive money from the plot holders, which he did not deposit with the Dda and misappropriated the same. There is complete proof of entrustment requisite under section 409 IPC. The argument cannot succeed.
(5) There is, thus, no force in any of the contentions put forward on behalf of the petitioner. The petition is dismissed. The petitioner shall surrender to his bail immediately.