S.N. Deedwania, J.
1. Appellant Shyamsunder has preferred this appeal against the judgment of Additional Sessions Judge, Sikar, dated May 30, 1973 against his conviction under Section 4(9) IPC and sentence of rigorous imprisonment of 3 years and a fine of Rs. 1001/-, in default of payment of which to further simple imprisonment for 6 months
2. The facts according to the prosecution were these. Appellant Shyamsunder was appointed 'Salesman' by the Collector, sikar on 8.8.1964 cm a fixed salary of Rs. 75/- per month The Government Shop was for the sale of grains and other controlled commodities During the tenure of his service, which was for the period of little more tan a year, he sold food-grains sugar etc. to the extent of Rs. 2,50.470 72 However, out of this amount, he deposited only Rs. 2 13,242.98 on 7-5-76 His services were terminated and he was asked to deposit the empty bags The appellant failed to comply with the demand. This led to the scrutiny of the accounts and it was found that Rs. 37,227.74 were not deposited by him in the Government account and he had misappropriated the same The District Supply Officer, Sikar Shri B.B Dutta sent a written report of the incident to P,S Kotwali, Sikar on 7-11-1967. The police registered a cafe under Section 406 and 409, IPC and conducted the usual investigation A challan was preferred against the appellant in the court of Munsiff Magistrate, Sikar for the mis-appropriation of Rs. 51,285.78 The case was ultimately committed, the appellant pleaded cot guilty to the charges. The learned Additional Sessions Judge believed the prosecution evidence and convicted the appellant.
3. I have heard the learned Counsel for the appellant and the learned Assistant Public Prosecutor for the State and the perused the record of the case carefully.
4. It was argued by the learned Counsel for the appellant that the entrustment of the grain sugar and Gunny-bags to the appellant had not been proved. My attention was drawn on the statement of PW 1 Babulal, an Accountant in the District Supply Office, Sikar. He deposed that he was an accountant in the District Supply Office, Sikar from 1969, The appellant was appointed as a Salesman in the Government Shop at Sikar on 8-8-1964, vide letter Ex P/2 and worked in the capacity upto 7-5-1966. Ex.P/3 is the charge report of his taking over the Government Shop No. 3. After he took over as a Salesman of Shop No. 3, he was issued grains on his various applications. The witness produced various applications and the indents issued to the appellant. He also identified the signatures of the various officers on the indents issued by the Supply Office. He also identified the signature of the appellant on his various applications. In the cross-examination, the witness foundered in as much as that he was asked to identify the signature of the appellant through a pigeon hole and failed to identify some of the signatures. No doubt this infirmity is in the statement of the witness. How ever he had no personal knowledge of the transactions and he merely produced the document. The fact of entrustment is proved by various other witnesses. PW 2 Banwarilal deposed that he worked as Godown Keeper from 26-6-66 and during that time the appellant was the salesman He was supplied imported wheat on the basis of his applications. He issued the wheat against various indents PW 3 Brij Kishore deposed that he was the Enforcement Officer, in the Supply Office & Incharge of the Government Godown. He was also empowered to issue the permits to the Salesman He proved indents applications Ex P/295 to Ex P/315, Ex P/317 to Ex P/331, Ex P/333 to Ex.P/337, Ex.P/340 to Ex.P/346. Ex.P/348 to Ex.P/357. He also proved endorsement on Ex P/295 to Ex P/307, Ex.P/317 to Ex. P/331, Ex.P/333 to Ex P/346 Ex.P/348 to Ex P/330, Ex P/352 to Ex.P/356 & Ex P/358 to Ex.P/ 399, which were under the signature of the Godown- Keepar Hariram, who had died and the witness further deposed that the indents No. P/161, P/162 P/164 to P/166, P/168 to P/172, P/174 to P/185, P/187to P/202. P/204, P/206, P/209 to P/223, P/229 to P/234 to P/244, P/246 P/251 to P/270, P/272 to P/292 were issued under his signature He also proved the signature of the appellant on the indents. He also proved the sugar permit Ex. P/434, Ex.P/445, Ex.P/446, Ex.P/451 to Ex P/456, Ex.P/460, Ex.P/461, Ex P/464, Ex P/468, Ex.P/469, Ex.P/476, Ex P/477, Ex P/478, Ex P/482 and Ex.P/485 issued by him and indents as a token of receipt of the goods PW 5 Kalyan Sahai was Assistant Supply Officer, Sikar from 29-4-64 to 5 3 65. He desposed that he knew the appellant and issued him the indents Ex.P/9 to Ex P/13, Ex P/13, Ex.P/15 to Ex P/18, Ex P/34 to Ex P/37, Ex P/38, Ex P/91, Ex P/93 to Ex P/ 118, Ex.P/120 to Ex.P/136, Ex.P/138 to Ex P/142 Ex P/150 to Ex P/152, Ex P/404 Ex P/414, Ex P/416, Ex P/423 Ex P/427, Ex P/429 to Ex.P/431, Ex P/435, Ex.P/487 and Ex.P/9 to Ex.P/152 under his signature He also proved the signature of the appellant in token of receipt of the goods, PW7 Kishansingh was the District Supply Officer, Sikar from 21-9 64 to 9-8-65.9 He issued permits Ex P/38 to Ex P/46, Ex P/51, Ex P/52 to Ex P/57, Ex P/6 to Ex P/87. Ex P/ 89 to Ex P/90 Ex P/149, Ex P/153 to Ex P 160, Ex P 172, Ex P/186. Ex P/415, Ex P/417, Ex P/419, Ex P/421, Ex,P/422, Ex. P/424, Ex. P/425, Ex P/437 to Ex P/443. Ex P/447, Ex P/450, Ex P/457, Ex P/459, Ex P/462, Ex P/463, Ex P/465, Ex P/467, Ex P/470 to Ex. P/475, Ex.P/479 to Ex P/481 and Ex P/483 under his signature. PW 9 Madhosingh was Deputy Supply Officer, Sikar from 21-12-1964 to 15-12-1965 and issued indent Ex.P/187, Ex P/205, Ex P/207, Ex P/208, Ex.P/224, Ex. P/227, Ex. P/228, Ex.P/235, Ex P/247 to Ex.P/249 under his signature Another witness Narendrasingh, P.W. 11 was then the Enforcement Officer in the Supply Department, Sikar and he issued permits Ex P/48 to Ex. P/50, Ex P/143 to Ex.P/ Ex P/428 in the capacity of the District Supply Officer. The witness was conversant with the handwriting of Rampalsingh and proved that indents Ex P/408, Ex P/410 and Ex /436, which were issued under his signature of the latter. Next witness Raghuvirsingh, PW 12 issued permits Ex P/406. Ex. P/409, Ex Ex P/411 to Ex.P/413, Ex P/415, Ex P/420 Ex P/436, Ex P/449, Ex 458 and Ex P/466 under his own signature. PW 13 B.B. Dutta was the District Supply Officer, Sikar from 7-1-1966. He issued two orders dated 7-5-1966 and 13-5-1966 requiring the salesmen to produce their accounts for reconciliation. Some reminders Ex.P/498, Ex. P/ 499, Ex. P/500, ExP/501 and Ex.P/502 were issued to the appellant to produce the accounts but he failed to do so. The witness asked his accounts but he failed to do so. The witness asked his Accountant to prepare the accounts relating to the appellant and got it verified by the Treasury Officer, Sikar. It was found that Rs. 37,227,74 were outstanding against the appellant. The details were contained in ExP/517. When the amount was not deposited by the appellant, then he made the report to the police. PW 14 Murlimanohar audited the accounts relating to the appellant. He prepared the details of accounts on the basis of the various permits and indents issued in favour of the appellant. Ex P/63 to Ex P/67 are in respect of wheat Ex P/490 pertaining to sugar. The witness also looked into accounts to ascertain the deposits mate by the appellant The amounts deposited by the appellant in Tehsil were mentioned in Ex.P/368 to Ex. P/383. The report submitted by the witness is Ex. P/515. From this Ex P/515, it is clear that Rs. 51,285.78 were outstanding against the appellant Ex P/515 is based on the various documents, which were produced and proved at the trial.
5. I have gone through the testimony of the witness and find no reason to disbelieve them. Therefore, the entrustment of the goods is proved beyond reasonable doubt. However, it was argued that there were specific instructions not to issue fresh supply unless the earlier sales proceeds were deposited. No doubt, the instructions to this effect were admitted by the prosecution. However, is was only the breach of these instructions which enabled the appellant to make the defalcation. I, therefore, do not find any force in the arguments advanced on behalf of the appellant that no defalcation was possible in view of these instructions.
6. The other point argued by the learned Counsel for the appellant was that the defence of the appellant was prejudiced in as much as the prosecution did not examine the hand writing expert. The argument appears to be devoid of any force. The appellant moved an application under Section 540, CrPC 1898 that be was not in a position to bear the expenses of hand writing expert &, therefore, some hand writing expert should be summoned on the Government expenses. The application was rejected by the trial court. The appellant approached the High Court, which was dismissed vide the order dated January 13, 1972 because, it could not be shown that the evidence of hand writing expert was relevant or necessary in the interest of justice. As already discussed, the prosecution has proved from cogent evidence, the various supplies made to the appellant and the production of handwriting expert Was hardly necessary.
7. It was then argued that the appellant was a new employee and he could not make any defalcation without the help of some other influential officers. In my opinion, this may or may not be true. How ever, the appellant can not escape his liability for the defalcation, which is proved by good evidence on the record.
8. It was then vehemently contended that the original Treasury Vouchers through which the appellant deposited the various amounts in the treasury were not produced at the trial and, therefore, it could not be said that he only deposited the sum mentioned in Ex P/515. This argument has no force. In the first instanbe, the audit report was made on the basis of treasury accounts, from which, the deposits made by the appellant could easily be found. It appears that the appellant only deposited Rs. 99,660.77 during the year 1964 65 and a sum of Rs. 82,641.91 during the year 1965.66. Apart from the audit report and the statement of Murlimanohar PW 14, the prosecution also examined PW 4 Shyamsunder, Treasury Officer, Sikar at the trial. He stated that he verified the deposits made by the appellant on the basis of treasury records, which are mentioned in Ex. P/365 to Ex P/388. There are no reason to disbelieve the statement of this witness and verified treasury accounts proved the deposits made by the appellant. The appellant has failed to account for a sum of Rs. 51285.79 and, therefore, he was clearly guilty of the offence of criminal breach of trust. His statement that he deposited all the sales proceeds is false in view of verified treasury accounts. In this regard reference be made to Jaikkishnadas Manohardas Desai v. State of Bombay AIR 1968 SC 889
To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, mis-appropriation or misapplication by the accused of the property entrusted to or over which he has dominion The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation, to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be crude.
9. It was sought to be argued by the learned Counsel for appellant that the defalcation was for over a period exceeding more than I year and, therefore, the one trial has prejudicially affected his defence. The argument has no force because the charges were suitably split up. Once charge related to the period August, 1964 to July, 1965 & the other charge was for the period of August, 1965 to May, 1966. As a matter of fact the appellant made this grievance in the trial court and agitated the matter in the High Court by way of revision. The High Court vide its order dated April 29, 1963 observed that the trial court was empowered to split charges in accordance with the provisions of Section 226 of the Criminal Procedure Code, 1898 Thereafter, the trial court suitably split up the charges and, therefore,, the question of irregularity in the trial did not arise.
10. As regards the sentence, it was vehemently argued that in all probability the appellant did not get the entire amount misappropriated by him, as he being a novice in the service, there must be some other persons in the conspiracy. The offense occurred in the year 1965-66. The sword of Conviction hanged over the appellant for these long years and, therefore, sentence should be suitably reduced. I have considered the argument carefully. In my opinion, the ends of justice would be met, if the substantive sentence is reduced from 3 years to 2 years. The sentence of fine is maintained. The appellant is on bail. He shall surrender to his bail bounds to serve out the remaining portion of substantive sentence as modified by this Court.
11. The appeal is dismissed with the above observations.