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Makhan Lal Sen Gupta Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Appeal No. 354 of 1955
Judge
Reported inAIR1958Cal517,1958CriLJ1178
ActsWest Bengal Criminal Law Amendment (Special Courts) Act, 1949 - Sections 2, 2(2) and 9(1); ;Code of Criminal Procedure (CrPC) , 1898 - Section 197; ;Indian Penal Code (IPC) - Section 409; ;Evidence Act, 1872 - Section 62
AppellantMakhan Lal Sen Gupta
RespondentThe State
Appellant AdvocateS.S. Mukherji, ;N.C. Das Gupta and ;K. Mokerji, Advs.
Respondent AdvocateR.N. Chakraborty, Adv.
Cases Referred and Matajog Dobey v. H. C. Bhari
Excerpt:
- b.k. guha, j.1. this is an appeal by makhan lal sen gupta against his conviction under section 409 of the indian penal code by mr. d. n. chakladar, judge, special court, burdwan, he was sub-post master at asansol railpar sub-post office on 30th july, 1952, and he was there from some time before that. in that sub-post office there was no other officer. according to the prosecution version, on 30th july, 1952, p. w. 1 barada charan chakrabarty who was then inspector of post offices, asansol subdivision, inspected the sub-post office in the presence of the accused. verification of cash and stamps was the first item of inspection shortly after 4 p. m. on actual verification the inspector found cash of rs. 19-15 annas, postage stamps worth rs. 156-4-3 pies, revenue stamps worth rs. 19/- and.....
Judgment:

B.K. Guha, J.

1. This is an appeal by Makhan Lal Sen Gupta against his conviction under Section 409 of the Indian Penal Code by Mr. D. N. Chakladar, Judge, Special Court, Burdwan, He was sub-post master at Asansol Railpar Sub-Post Office on 30th July, 1952, and he was there from some time before that. In that Sub-post office there was no other officer. According to the prosecution version, on 30th July, 1952, P. W. 1 Barada Charan Chakrabarty who was then Inspector of Post Offices, Asansol Subdivision, inspected the Sub-post office in the presence of the accused. Verification of cash and stamps was the first item of inspection shortly after 4 P. M. On actual verification the Inspector found cash of Rs. 19-15 annas, postage stamps worth Rs. 156-4-3 pies, revenue stamps worth Rs. 19/- and National Savings Stamps worth Rs. 24/-, in all Rs. 210-3-3 pies showing a shortage of Rs. 316-4-9 pies. The Sub-post master could not account for the shortage. The first count of the charge under Section 409 of the Indian Penal Code against the accused is in respect of this shortage of Rs. 316-4-9 pies. After this shortage had been detected, Inspector Chakraborty proceeded with the inspection of the Sub-post office and detected various irregularities in connection with money orders. It was found that several money order receipts were left blank and some were not sealed with the date-seal. It was also found that in respect of several money order receipts which were shown as issued, their value had not been credited to the Government according to rules. In short, it was found that a sum of Rs. 728-9 annas on account of money orders was not credited to the Government and it is alleged that the accused misappropriated the same. This forms the second count of the charge under Section 409 of the Indian Penal Code against the accused. The substance of the second count of the charge is that between 28th to 30th day of July, 1952, the accused committed criminal breach of trust in respect of the sum of Rs. 728-9 annas being the values and commissions in respect of money orders Nos. 901-904, 917, 917 (sic), 931-940 and 956-961. The accused made a fairly lengthy statement under Section 342 of the Code of Criminal Procedure. The substance of that statement was that Inspector Chakraborty found the cash balance, stamps, etc. in order and endorsed a note in the Sub-post master's account book to the effect 'checked and verified'. Whatis alleged to have happened subsequently may be stated in the words of the accused :

'As he (Inspector) wanted to take tea, I went out and brought a cup of tea and some biscuits. He took them. He then said that his two daughters had attained marriageable age and asked if I could render pecuniary help in connection with their marriage, I said that I was not very well off and requested him to excuse me. Later on, he struck off his previous remarks 'checked and verified''. When asked why he had done that, he said that it was necessary and then wrote Money short to the extent of Rs. 316-4-9 pies. It is false.'

As regards the money order commissions etc. said to have been misappropriated by the accused, the accused denied that he had done anything of the sort and in regard to the evidence of certain witnesses, namely, P. Ws. Fatoo Mal, Haripada Roy and Rajnarayan Thakur who had stated that they had made over certain amounts to the accused with money order forms, the accused's version was that these people did not make over any money to him nor any money order form.

2. The learned Judge accepted the Prosecution version not being impressed with the defence set up by the accused and convicted him accordingly.

3. On behalf of the appellant an objection has been raised for the first time in this Court regarding the competency of Mr. D. N. Chakladar to try this case. It appears that upon the transfer of Mr. G. Section Chatterji, Mr. Chakladar was appointed to try this case, the relevant Gazette Notification being No. 2615 G.A./5C-35/55 Pt. (IV) dated 4th August, 1955. According to that notification, in exercise of the powers conferred by Sub-section (2) of Section 2 read with Sub-section (1) of Section 9 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act 21 of 1949), the Governor appointed 'Sri D. N. Chakladar, Additional District and Sessions Judge, Burdwan, to be, in addition to his duties, a Judge to preside over the Burdwan Special Court vice Sri G. S. Chatterji'. Section 2 of the parent Act was amended by Section 3 of Act 12 of 1953 and under Section 2 (1) of the amended Act the State Government was empowered to constitute by notification in the Official Gazette one or more Special Courts and by Sub-section (2) the State Government was empowered to appoint, as a judge to preside over a Special Court, any person who (a) is or has been qualified under Clause 2 of Article 217 of the Constitution of India for appointment as a Judge of a High Court or (b) has, for a period of not less than one year, been a Sessions Judge or Additional Sessions Judge. It appears that Mr. D. N. Chakladar who was then a Subordinate Judge and Assistant Sessions Judge of Burdwan was appointed Additional District and Sessions Judge of Burdwan by virtue of Gazette Notification No. 2163 C. A./5C-35/55 dated 28th June, 1955, and it has been ascertained that he joined his duties as Additional District and Sessions Judge for the first time on 2nd July, 1955. It was argued or. behalf of the appellant that at the time, namely, 4th August, 1955, when Mr. Chakladar was appointed Judge of Burdwan Special Court, he had not been a Sessions Judge or an Additional Sessions Judge for a period of, at least one year and that being so he was not legally competent to be a Judge of that Court with the result that the trial and conviction of the accused by him were bad. In support o this argument special stress was laid upon the fact that in the Gazette Notification dated 4th August, 1955, Mr. Chakladar was described as Additional District and Sessions Judge, Burdwan. The question is whether there is any substance in this objection raised on behalf of the appellant regarding the competency of Mr. Chakladar to try the case. The argument on behalf of the appellant confines itself to subsection (2) (b) of Section 2 of the Amended Special Courts Act and seeks to ignore Sub-section (2) (a) by which the State Government was empowered to appoint as a Judge to preside ove,r a Special Court any person who was qualified under Clause 2 of Article 217 of the Constitution of India for appointment as a Judge of a High Court. Under Article 217 of the Constitution of India a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and (a) has for at least ten years held a judicial office in the territory of India. On 4th of August, 1955, Mr. Chakladar was possessed of the above qualifications. At the. material time, therefore, he was qualified for appointment as a Judge of a High Court with the result that he was also qualified under the Special Courts Act to be appointed as a Judge to preside over a special Court. It is true that in the Gazette Notification dated 4th August, 1955, Mr. Chakladar was described as Additional District and Sessions Judge, Burdwan, and it is also true that at that time he had not been a District and Sessions Judge or an Additional District and Sessions Judge for over a year. That description was, however, nothing more than a mere description. It was not the Additional District and Sessions Judge of Burdwan who was appointed by the Government to preside over the Special Court. It was Mr. D. N. Chakladar personally who was appointed to preside over such Court. It cannot be gainsaid that Mr. D. N. Chakladar personally was qualified for appointment as Judge to preside over a Special Court and that qualification he derived from the Constitution itself. All that the relevant Gazette Notification means is that Mr. Chakladar was appointed to preside over the Special Court though he happened to be Additional District and Sessions Judge of Burdwan at the time. In the circumstances, in view of the above reasons it must be held that Mr. Chakladar was competent to try this case and convict the accused. This preliminary objection must accordingly fail.

4. Before dealing with the merits of the case it is necessary to deal with certain other points which have been raised in this case. It appears that it was urged on behalf of the defence in the trial Court that the whole trial had been vitiated in the absence of sanction by the postal authority under the Posts and Telegraphs Manual as well as by the Central Government under Section 197 of the Code ot Criminal Procedure. So far as the first part of the objection is concerned, it has been pointed out by the learned Judge that in relation to the present appellant it was the Superintendent of Post Offices who was the appointing authority and not the Director General of Post Offices or any higher authority. The Prosecution relied upon exhibit 17 as the requisite sanction for the prosecution of the accused. The learned Judge also refers in his judgment to certain rules of the Postal Department in support of his view that it was the Postal Superintendent and not any higher authority who was competent to accord the necessary sanction. At the same time, in the view of the learned Judge exhibit 17 could not be said to amount to requisite sanction. In his view, however, the absence of sanction by the postal authority under the Posts and Telegraphs Manual would not vitiate the trial, the instructions therein being 'rather administrative'. In regard to the defence contention that the trial had been vitiated by the absence of sanction by the Central Government under Section 197 of the Code of Criminal Procedure, the learned Judge was of opinion that such sanction was not 'absolutely necessary' as it cannot be said that the accused committed criminal breach of trust in respect of the amounts mentioned in the two charges while acting or purporting to act in the discharge of his official duty.

5. The objection in regard to Section 197 of the Code of Criminal Procedure may be taken up first. It has been urged on behalf of the Prosecution that apart from other considerations the mischief of that Section is not attracted to this case broadly because it cannot be said that the alleged breach of trust by the accused was in discharge of his official duty. There has been a long series of cases of the highest authority in regard to this point. It is not necessary for us to deal with this matter in detail so far as the present case is concerned. So far as the charges against the accused are concerned, the accused was entrusted with, the money no doubt in his official capacity. That, however, is not sufficient to attract Section 197 of the Code of Criminal Procedure. The act complained of against the accused in the present case was misappropriation of certain funds. This cannot be said to be an act dona or purported to be done in an official capacity (see Shreekantiah Ramayya Munipalli v. State of Bombay, : 1955CriLJ857 . ) Again, the act complained of, namely, misappropriation, cannot be said to have hinged on the duties of the accused as a public servant. They were unconnected with such duties (see Amrik Singh v. State of Pepsu, : 1955CriLJ865 ). Again, the acts complained of were not so integrally connected with the duties of the office of the sub-post master as to be inseparable for they were not so integrally connected. There was no reasonable connection between the act and the discharge of official duty. The impugned act was not so related to the official duty of the accused that he could set up a reasonable claim that he did the act in the course of the performance of his duty (see H. H. C. Gill v. The King , and Matajog Dobey v. H. C. Bhari, : [1955]28ITR941(SC) . ) It is not necessary to refer to other authorities. The principle generally laid down by the authorities is substantially the same though couched in different phraseology. So far as the present case is concerned, Section 197 of the Code of Criminal Procedure cannot be of any assistance to the accused. In view of this finding, the trial would not be bad even though the requisite sanction was wanting from the appropriate postal authority. It may be stated that for the reasons set out by the learned Judge it is clear that if the case required any sanction, the proper sanctioning authority was the Superintendent of Post Offices, Burdwan. It appears from exhibit 19, a letter addressed by the Sub-Inspector of Police, Asansol Police Station, to the Superintendent of Post Offices, Burdwan, that the attention of the latter was being drawn to the fact that he had already been addressed for according sanction of prosecution under Section 409/477A of the Indian Penal Code against accused Ma-khan Lal Sen Gupta for criminal breach of trust in respect of some postal money orders etc. 'of which you (that is, the Postal Superintendent) are aware.' This letter, exhibit 19, was by way of a reminder. The original letter of which it was a reminder is not on the record. In reply to this letter exhibit 19 the Superintendent of Post Offices, Burdwan, who was none other than Mr. S. N. Banerjee, said that sanction of the authority did not appear to be necessary in this case and that there was no objection to the prosecution of the official. It is to be noted that Mr. S. N. Banerjee who was the writer of the letter exhibit 17 was fully aware of the facts of the case as he himself had played a prominent part in the case as is clear from his evidence. I am inclined to hold, therefore, in disagreement with the learned' Judge, that if any sanction was necessary in the present case, the letter exhibit 17 may be treated as sufficient compliance with the requirements of law, rules of law, rules or regulations. The trial cannot, therefore, be held to be bad on the grounds urged on behalf of the defence.

6. I propose now to deal with the facts of the case. As has been mentioned before, a charge under Section 409 of the Indian Penal Code was framed against the accused under two counts, the first count relating to criminal breach of trust in respect of Rs. 316-4-9 pies, and the second count being in respect of Rs. 728-9 annas being the values and commissions of certain money orders. The specific defence set up by the accused has been referred to already. The defence inter alia was that the accused had incurred the displeasure of Barada Charan Chakraborty, Inspector of Post Offices, P. W. 1, and that it was this officer who had persuaded his superior officers, namely, P. W. 2 S. N. Banerjee who was the Superintendent of Post Offices, Burdwan and P. W. 7 Pratul Chandra Mukherji who was the Assistant Superintendent of Post Offices, Burdwan Division, at the time, to dance to the tune of Inspector Chakraborty and turn against the accused. Both P. Ws. 2 and 7 were very responsible officers' of the postal department, especially P. W. 2, and it cannot be held except on very strong grounds that these officers were deliberately taking part in ruining an innocent subordinate of theirs. Much has been said by the defence against the conduct of Inspector Chakraborty. It is surprising that when the Superintendent of Post Offices or the Assistant Superintendent of Post Offices came to the accused's sub-post office on receipt of a complaint from Inspector Chakraborty, the accused did not choose to make any complaint to them. Reference may, in this connection, be made to the evidence of P. W. 2 Mr. S. N. Banerjee at page 27 of the Paper-Book and the evidence of P. W. 7 Protul Chandra Mukherji at page 39 of the Paper-Book. Another broad feature of the case is that though it is said on behalf of the defence that during the period when the accused was absent from the sub-post office in order to bring tea to Inspector Chakraborty, P. W. 1, the latter managed to remove the post office cash etc., which were ultimately found short, it would appear from the statement of the accused under Section 342 of the Code of Criminal Procedure that it was after the accused had come back bringing a cup of tea and some biscuits for the Inspector that the latter suggested that the sub-post master should render him some pecuniary help in connection with the marriage of his daughters. The sequence of events, as narrated by the accused himself in his statement under Section 342 of the Code of Criminal Procedure is hardly consistent with the defence version as has been sought to be set up. It may be mentioned in this connection that so far as Inspector Chakraborty is concerned, he denied that the accused had gone out of his office on the day of occurrence to supply tea and cigarettes to him. He also denied the further allegation about the demand of money from the accused. In any case, if there was any truth in the very serious allegations brought now by the accused against Inspector Chakraborty, one would have expected to find, at least, some hint of that in the testimony of P. Ws. 2 and 7. In the circumstances, very little reliance can be placed upon these allegations.

7. So far as the positive case against the accused is concerned in respect of both counts, it rests primarily on the testimony of P. W. 1 Barada Charan Chakraborty whose version regarding shortage of money received support from the testimony of his superior officers P. Ws. 2 and 7 who came to the sub-post office soon after the detection of the shortages by the Inspector and at the request of the latter. Inspector Chakraborty has described in detail as to the nature of the shortages and defects that he discovered upon inspection of the sub-post office and if his version is accepted there cant be no room for doubt regarding the guilt of the accused. In support of the Prosecution version reliance was also placed upon a mass of documentary evidence. This documentary evidence also lends support to the Prosecution case. It is necessary, however, to deal with certain criticisms which have been urged on behalf of the defence.

8. It has been contended that certain-important books and registers have been deliberately withheld by the Prosecution and the Court has been invited to draw an adverse conclusion against the accused by reason of that. Beference has in this connection been made to-the non-production of what is called 'order book'. It appears from the evidence of P. W. 1 that every post office maintains a book called 'order book' and that Bailpar Post Office also maintains such a book. In this book the inspecting officers have to make their remarks after every inspection. P. W. 1 Inspector Chakraborty says that he made no such notes in the book on 30-7-1952, and he cannot say if the Superintendent wrote his remarks in the 'order book'. Looking at the circumstances of the present case, it does not appear to me that the non-production of the 'order book' is a matter to which any sinister significance need be attached. After all, the inspection of the sub-post office by Inspector Chakraborty was held in the afternoon, shortly after 4 P.M. On receipt of information from the Inspector about the detection of shortages etc., his superior officers, P, Ws. 2 and 7, came there within an hour or two. These officers also looked into the matter and thereafter the same evening information was given to the Police and the accused was arrested and the matter was then in the hands of the Police. In these circumstances, it was hardly likely that the 'order book', even if produced, could have been of much assistance to the accused.

9. Grievance was also made of the fact that another book called 'error book' was not produced. It appears from the evidence of inspector Chakraborty that if any error be detected by the head office in the daily accounts which are to be sent by the sub-post office, that will be entered in a book called the 'error book' and an extract of that will be transmitted forthwith for rectification. Inspector Chakraborty admitted that he got no such extract of error. That fact, however, cannot, in the circumstances of the present case, detract materially from the truth of the Prosecution version which relates mainly to the incidents which took place on 30-7-1952. In the circumstances, much importance need not be attached to the grievance made on behalf of the accused on this score.

10. Grievance was also made on the ground of non-production of the stamp register. Prosecution witness Chakraborty says that there was no stamp register at the Railpar Post Office though he admitted that every post office had to maintain such a register under the rules. He added, however, that for want of forms these rules were not always rigidly followed. He made some further statements in this connection. We have it from the evidence of Protul Chandra Mukherjee who was Assistant Superintendent of Post Offices, Burdwan Division, at the time that though he had passed orders for maintaining a stamp register at each post office small offices like Railpar Post Office did not keep any such register. On the evidence as it stands, it is doubful, therefore, whether any stamp register was maintained at all at the Railpar sub-post office and I do not think that the Prosecution case can be held to be false by reason of non-production of any such register.

11. Adverse comment was also made on the ground of non-production of inspection notes known as 'working paper'. P. W. 1 Inspector Chakraborty admits that he had prepared inspection notes known as 'working paper' when he held inspection of Railpar Post Office. They have not been filed. Had they been filed, they might have been of some assistance to the Court but undue importance need not be attached to the failure to file those notes.

12. Before proceeding further it may be mentioned that on behalf of the appellant objection was raised regarding the admissibility of search list exhibit 16/3. It appears from the evidence of P. W. 9 Santosh Kumar Benerjee, Sub-Inspector of Police that when he went to the Railpar Post Office on 30-7-1952, to take up the investigation of the case, he found the Divisional Superintendent of Post Offices, the Assistant Superintendent of Post Office and the accused present there and seized some relevant records and prepared a seizure list in triplicate, one in pencil and two in carbon. He says further that he sent the original to the Sub-divisional Officer, Asansol, gave a carbon copy to the complainant. P. W. 1 Barada Charan Chakraborty, Inspector, also says that the Sub-Inspector prepared a seizure list in carbon papers and gave a copy of it to them. The original seizure list which is said to have been sent to the Sub-divisional Officer, Asansol, is not, however, to be found on the record and the carbon copy, exhibit 16/3, was put in by the Prosecution in lieu of the original and it was admitted in evidence without objection after deletion of certain ink writings thereon as suggested by the Public Prosecutor. In answer to the objection before us raised on behalf of the appellant regarding the admissibility of this document, the learned Advocate for the State referred to Section 62 of the Evidence Act, and specially to explanation 2 thereto but even after deletion of the ink writings which were admittedly made by some postal employees the document, exhibit 16/3, as it stands, cannot be said to have complied with the requirements of Section 62 and analogous sections of the Evidence Act. A mere glance at the document would show that even apart from the ink writings the whole of it could not have been made by one uniform process. In the circumstances of the present case, though it cannot be said that the document was altered by somebody with any ulterior purpose at the same time I am inclined to hold that the defence objection before us regarding the admissibility of this document cannot be brushed aside. This, however, does not detract from the value of the Prosecution case to any material extent. Independently of this document, there is ample evidence on the record to show that certain documents, the most material of which, for our present purposes, were various money order forms, were really seized by the Police. As regards these money order forms, twenty-two in number, the Prosecution evidence is that the accused himself produced them in a bunch before Inspector Barada Charan Chabraborty from his wooden hand-box. From some of these forms it can be seen that P. Ws. Haripada, Fatoo Mall and Rajnarain Thakur had paid certain sums to the accused on 30-7-1952, for remitting money by money order. The Prosecution case is that these sums which were delivered by those persons to the accused were not credited to the Government nor were they entered into the money order journal, and the rules for sending copies were not complied with. The Prosecution version further is that out of twenty-two remitters whose names are mentioned in the twenty-two money order forms only three could be traced and they were Haripada Roy, Fatoo Mall and Rajnarayan Thakur who have been examined by the Prosecution. As regards the defence suggestion that the accused had nothing to do with these twenty-two money order forms and that as a matter of fact they had somehow been introduced irregularly by the Prosecution in order to ruin the accused, it does not appear from the evidence that there is any substance in this. Leaving aside for a moment the twenty-two money order forms, there is ample documentary evidence on the record to indicate that the accused had not credited to Government sums which he had received from the remitters of money orders. Relevant details are to be found in the evidence of Barada Charan Chakraborty as also in the evidence of Protul Chandra Mukherjee.

13. Some question was raised as regards the handwriting of the accused. It is true that no handwriting expert was examined in this case. But even though the evidence of P. W. 7 Protul Chandra Mukherjee is contradictory as to whether he was really conversant with the handwriting of the accused, that criticism cannot be levelled against the evidence of Barada Charan Chakraborty who was well conversant with, and who had ample opportunities of knowing the handwriting of the accused. The evidence of Barada Charan Chakraborty shows that certain entries at the top of the money order forms were in the handwriting of the accused and bore his signatures. His evidence further is that various entries in the Money Order Receipt Book of 30-7-1952, about which he has given details were written in the hand of the accused (see page 19 of the Paper-Book),

(14) Considering the mass of evidence, both oral and documentary, on the record, there can remain hardly any room for doubt that it was the accused and none else, -- and after all, it has to be remembered that it was a one-man sub-post office -- who was responsible for theshortages and other improprieties that were discovered on inspection. It may be mentioned at this stage that much stress was laid by the defence on a note exhibit B in the handwriting of P. W. 1 Inspector Chakraborty in the Sub-post office accounts. According to this note, after verification Inspector Chakraborty was satisfied about the correctness of the accounts. Subsequently, however, he erased this note and this is what Chakraborty says on this point.

'At first I made the note ext. B in my hand in the Sub-office account book. Then I penned that through as that was mistaken and soon after I made the notes ext. 1/2 In the book in my own hand. I am aware of rule 636 of Posts and Telegraphs Manual, Vol. II. I have violated the rule so that what I wrote before in. exhibit B could not be deciphered. This I did as I made a gross mistake.'

Much was made by the defence of these adr missions made by Inspector Chakraborty. Though there may be some room for debate as to whether Rule 636 were really applicable in the case of an entry of that nature, there cannot remain any room for doubt that Inspector. Chakraborty acted improperly in seeking to obliterate the entry in the manner that he had done. The Prosecution case was that this was a bona fide mistake and that the entry which had been scored out did not represent the correct state of affairs and that as soon as Inspector Chakraborty realised his mistake he scored it out in the manner that he had done.

15. Considering all the circumstances and the materials on record we are of opinion that however open to objection the action of Inspector Chakraborty in respect of exhibit B may be, this does not detract from the truth of the Prosecution case. In this connection reference may be made to certain other documents. It appears from the Sub-office account book exhibit 1 that on the very same day Inspector Chakraborty made an entry exhibit 1/2 in the account book just by the side of the previous entry Exh. B. This entry exhibit 1/2 ran to the following effect 'cash balance found short by Rs. 316-4-9 pies only on verification'.

Just below that there is another entry made by P. W. 2 Section N. Banerjee, Superintendent of Post-Offices. That entry is 'verified at the close of 30th July, 1952 and found Rs. 316-4-9 pies short'. All these entries were made in the presence of the accused. Reference may also be made in this connection to exhibits 5 and 8. In exhibit 5 which was written upon the same day and in which the shortages of Rs. 316-4-9 pies and Rs. 728-9 annas were recorded, there are, amongst others, the signatures of the accused himself. In exhibit 8 which is also signed by the accused himself, the shortage of Rs. 316-4-9 pies is found recorded. If there was any truth in the allegations made by the accused, one would very naturally expect first that he would bring them to the notice of the higher postal authorities, P. Ws. 2 and 7 then and there and secondly that he would have taken very good care not to sign the account books and papers in the manner he had done without giving full and satisfactory explanation at the time as to how the shortages, etc. had occurred. Though the remitters of all the money orders could not be traced as has been mentioned before, three of such remitters have been examined by the Prosecution. The purport of their evidence is that they did hand over certain sums of money to the accused and obtain money order receipts from him. They have also identified the accused in this connection. There is no good reason why the evidence of these witnesses should be disbelieved.

15a. It may be mentioned incidentally that it transpires from the evidence that Inspector Chakraborty was accompanied by his orderly peon Ram Asis Choubey when the former visited the Railpar sub-post Office on 30th of July, 1952. This Ram Asis Choubey has not been examined by the Prosecution but in the circumstances of the present case and in view of the nature of the case there is no good reason for drawing any adverse inference against the Prosecution for his non-examination.

16. There is also something in the evidence of P. W. 7 Protul Chandra Mukherji that one C. R. Pandey of the Account Section of the Asansol Head Office went to the Railpar Post Office on 50th July, 1952, while Protul Chandra Mukherji and others were there. The evidence on the point is, however, discrepant. Even assuming that the version of Protul Chandra Mukherji is correct, non-examination of C. R. Pandey cannot, in the circumstances of the present case, be said to affect the truth of the Prosecution version.

17. On a consideration, therefore, of the evidence, both oral and documentary, we have reached the conclusion that the guilt of the accused has been established beyond all reasonable doubt in respect of both the counts on which he stood charged. His conviction must accordingly stand.

18. The next question is as to whether the sentence of rigorous imprisonment for two years imposed upon the accused in respect of each of the charges, -- sentences to run concurrently, -- calls for any modification. On the one hand we have to remember that the accused was a responsible Government official entrusted with the duty of handling the money, in most cases, of humble folk. There is also the consideration that the accused set up a false defence making in the process unfounded aspersions against his superior officer, namely, Inspector Chakraborty who had the unfortunate duty of detecting the malpractices committed by the accused. On the other hand we have to consider the fact that the accused was a postal employee on a comparatively small pay, that he is advanced in years, that at the time of the occurrence, namely, 30th July, 1952, he had reached nearly the end of the term of his service, that he has been under suspension since then and that he has had to bear the burden of a protracted and expensive litigation. Moreover, the amounts involved in the present case are comparatively small. Considering all the circumstances we are of opinion that it will meet the ends of justice if the sentence of imprisonment be reduced to rigorous imprisonment for a period of four months under each count the sentences to run concurrently. With this modification in sentence the appeal is dismissed. The appellant will surrender to his bail and serve out the rest of his sentence.

B.K. Bhattacharya, J.

19. I agree.


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