1. In this case a Rule was issued, to show cause why the conviction of and sentence passed on this petitioner should not be set aside on the ground that the learned Judge's order dismissing the appeal summarily was made without hearing the defence Pleader. The petitioner was convicted under Section 409 of the Indian Penal Code and sentenced to rigorous imprisonment for 6 months and a fine of Rs. 1,000 in default, rigorous imprisonment for 4 months. Out of the fine RS. 640-0-5 pies were to be paid to the Dhatrigram Union Board. He appealed to the Sessions Judge and his appeal was summarily dismissed.
2. The ground urged by the learned Advocate for the petitioner is untenable. Section 41 provides that on receiving the petition under Section 419 or Section 420 of the Criminal Procedure Code, the Appellate Court shall peruse the same, and if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily, provided that no appeal under Section 419 shall be dismissed unless the appellant or his Pleader has had a reasonable opportunity of being heard in support of the same. Sub-section (2) provides that before dismissing the appeal under this section, the Court may call for the record, but shall not be bound to do so.
3. Now, the argument of the learned Advocate is, that although the Pleader had a full opportunity of addressing the Court when he presented the petition, he was not allowed or asked to address the Court after the Sessions Judge had sent for the record and perused it. That is to say, his argument amounts to this, that if the Sessions Judge decides to send for the record, then, the appellant's Pleader in such a case is to have two opportunities of addressing the Court, one when he presents the petition in the first place, and another after the record has been sent for and perused by the Judge. That is not what the section says. There is nothing contained in the section about the right of the appellant or his Pleader to have two reasonable opportunities of being heard by the Court. Provision is made only for one reasonable opportunity.
4. Although there is no substance in this contention, we have examined the judgment of the Sessions Judge and that of the Sub-. Divisional Magistrate, whose judgment was appealed from. The Sessions Judge says that the appellant is the President of the Dhatrigram Union Board. On May 29,1934, the accounts of the Board were audited by the Circle Officer. The cash balance was found to be Rs. 1,143-13-5. Of this amount Rs. 503-13 was covered by postal cash certificates and postal Savings Bank accounts. The remainder was in the hands of the appellant, who neither appeared at the audit nor produced the money.
5. There was evidence also to the effect that two months afterwards, the Circle Officer mentioned to the President that he could not finally audit the accounts until he knew exactly how much was in the bands of the President. So far as I understand, in the absence of the record, the Circle Officer did not ask the President then to hand over the balance which was in his hands. Upon some subsequent occasion, the President was asked to show cause why he should not be prosecuted for the misappropriation of this balance, and on that occasion he failed to hand over the money. Even then there does not seem to have been any demand made, but the learned Sessions Judge says that the appellant was charged and committed for misappropriation of the funds actually shown in the cash book as the credit balance of the Board. He said that it is the non-production of the money that constitutes his real offence, and his mala fide intention is proved by his failure to produce this money at any time subsequently.
6. As I have already stated, the evidence seems to go only to the length of showing that there ought to be a balance in the hands of this appellant, and that up to the present he has not produced it. But except in exceptional circumstances, which themselves indicate the dishonest intention of the accused, mere non-production of money which is rightfully in the hands of the accused, will not amount to the crime of misappropriation. There must be something to prove dishonesty. Such dishonesty of course may be inferred from the surrounding circumstances, and the terms upon which the accused had the money in his possession. But in this case, so far as I understand the evidence, the money was rightfully in the possession of the President, who was, so to speak, the banker for the Union Board so far as cash balances were concerned.
7. These being the facts, it appears to us that the appeal ought not to have been disposed of summarily, and the order dismissing the appeal is set aside, and the case sent back to the learned Sessions Judge to re-hear the appeal. The Rule is made absolute.
8. The petitioner will continue on the same bail.
9. I agree.