TMI Blog1963 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... counts of the Board and on May 24, 1949, the auditor found that the money received by the Board from April 20, 1949, to May 23, 1949, totalling ₹ 52,144/- had not been deposited in the treasury or the Imperial Bank at Roorkee. The matter was then reported to the Chairman of the Board, who called Munnalal and took his explanation as to the alleged embezzlement. It is said that the appellant admitted that he had spent some of the money in the .marriage of his daughter and some was used in his shop and ₹ 10,000/to 'Rs. 11,000/-had been given to the Executive Officer and the remainder was at his house. The appellant was asked to make good the loss immediately but failed to do so. Thereupon the appellant was suspended and the matter was handed over to the police for investigation. The police registered a case under s. 409 of the Indian Penal 'Code and after investigation prosecuted the Executive Officer as well as the appellant and his brother who was the Assistant Cashier at the relevant time. The case was transferred by the High Court to a magistrate in Meerut; but that case was not proceeded with as an application was made to withdraw it on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. Though these sums were supposed to be returned to the cashier (appellant) in the beginning of the next month when pay was drawn by those who had taken these unauthorised advances, in actual fact this did not always happen. The result of these advances which were sometimes of large amounts was that the money could not be deposited in the treasury according to the rules as these advances were being constantly made to the officers and servants of the Board. The appellant therefore contended that he had not converted the money to his own use and had advanced the same to the officers and servants of the Board according to the practice prevalent for a number of years and that such advances were even made to the highest officer of the Board, namely, the Executive Officer, and that the officers all knew of this practice and also knew that moneys were not being deposited in the Bank or the treasury at Roorkee as required by rules. The Special Judge held on the evidence that it was proved that the moneys which were the subject matter of the charge (except for two items) had been received by the appellant. He also held that except for certain items, the appellant had dishonestly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and his brother under s. 5 (2) of the Act and investigation was made as required by s. 5-A. But the evidence shows that this investigation merely consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file four prosecutions as already indicated on the basis of the earlier investigation. It does appears from these facts that though the letter of s. 5A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorised under that section and the real investigation was by a sub-inspector of police who was never authorised. In H.N. Rishbud Inder Singh v. The State of Delhi ([1955] 1 S. C. R. 1150.), this Court held that s. 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal . This Court further held that if cognizance is in fact taken on a police reporting breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice . It was further held that an illegality committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal or irregular investigation. We have already remarked that no such thing has been shown in this case; nor was it possible 10 show any such thing in view of the alternative defence taken by the appellant. We therefore reject this contention. The next contention that has been urged is that there was no proper sanction in these cases and this is based on the fact that only four cases were filed before the Special Judge with of course proper sanction; but these cases were split up into seven and the argument is that there was no sanction for the remaining three cases, and two of the present appeals namely Nos. 102 and 103 are out of these split-up cases. It is also urged that the sanction was not with respect to s. 5 (1) (c) of the Act though it was under s. 5 (2) of the Act and therefore it was insufficient to confer jurisdiction on the Special Judge to try the appellant under s. 5(1)(c) read with s. 5 (2). We are of opinion that there is no force in either of these contentions. It is true that the Special Judge split up the four cases before him into seven; but it is not disputed that the amounts involved in the three new cases which the Special Judge had directed for splitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, in our opinion, rightly--that the convictions are unjustified. The only question that he has urged is that in view of the established facts that the appellant was using the Board's money in order to advance it to the officers and servants of the Board beginning with the highest officer of the Board, namely, the Executive Officer and that the evidence as found by the High Court does not seem to establish that there was any conversion of the moneys by the appellant to his own use, this is a case in which the appellant was more sinned against than sinning. It is conceded that as the appellant was the cashier it was his duty in law to follow the rules with respect to the custody of the cash of the Board entrusted to him and if he did not do so he would be guilty. But it is urged that when the highest officer of the Board, namely, the Executive Officer was himself taking out money from the funds of the Board by sending slips to the cashier and other officers and servants of the Board were doing the same thing and this was well known, presumably also to the Chairman of the Board, it is not just that the appellant should be made to suffer when he was obliging the officers and serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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