TMI Blog1967 (4) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... one teacher, Harbhajan Kaur and on December 2, 1961, he received Rs. 42.66 and Rs. 494, the first amount being the salary of Ram Sarup, another teacher and the other as contingent fund payable to the staff. None of these amounts was paid to any of the aforesaid persons for payment to whom they were received by him. On M/s, Joti Pershad Gupta Sons complaining to Joshi that the amount due to them was not paid, Joshi looked into the matter and finding that that amount and other amounts were embezzled, he lodged a complaint before the Police. The police thereupon registered a case under Section 409 against the appellant and under Sections 409, 465, 477A and Section 120B of the Penal Code against Joshi. The trial Magistrate convicted Joshi and the appellant under Section 120B and under Section 409 for criminal breach of trust in respect of Rs. 3414.53 and also under Section 477-A and awarded different sentences and fines directing the sentences to run concurrently. In appeal, the Additional Sessions Judge acquitted Joshi of all the charges. He also acquitted the appellant on charges under Section 120-B and Section 477A but upheld his conviction under Section 409. The appellant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Prosecutions, [1935] A.C. 462 and argued that if the appellant could show that his case was reasonably probable and could cast a doubt on the prosecution case that would be enough to entitle him to the benefit of reasonable doubt. There was, however, no question of the appellant raising any reasonable doubt in view of (a) his admission that he had received the said moneys, (b) the evidence of the District Inspector of Schools that he had confessed before him of having misappropriated Rs. 2500 at least and was prepared to deposit the said amount, and (c) the evidence as to, his false representations to M/s. Joti Perhad Gupta Sons and the Assistant Secretary of the Red Cross Society that moneys due to them had already been remitted. But the argument of Mr. Mehta was that he could have raised a doubt on the prosecution evidence if the documents called for by the appellant had been produced and his application for their production had not been rejected. 4. In his statement under Section 342 of the Code of Criminal Procedure the appellant admitted that he had drawn the said amounts from the Bank. His case, however, was that he did so on Josh authorising him to do so and that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded under Section 342 of the Code, no objection was taken by the appellant that the case should not proceed until the said register was produced. The case was adjourned to December 29, 1962 for defence evidence. On that date also no objection appears to have been taken and the case was allowed to proceed. Ultimately on January 14, 1963, the Magistrate passed his aforesaid order of conviction. Apart from that, since the moneys were not remitted to the parties concerned there can be no question of there being any R.T.R. in respect of them. Evidentially that document was called for by the appellant in order to create confusion knowing full well that it was not there. We find, therefore, no substance in the contention that if these documents had been produced the appellant could have thrown some doubt on the prosecution evidence and could have made out a reasonably probable case that he had handed over the said amounts to Joshi. 6. Mr. Mehta next argued that under Section 409 assuming that the said moneys were entrusted to the appellant, such entrustment must be in his 'capacity as a public servant. Being a clerk in the office of the Assistant District Inspector of School ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.I.R. 1963 Ker 68 That decision cannot be of any avail as it is directly contrary to this court's decision in Willie Slaney v. The State of Madhya Pradesh 1956CriLJ291 . 8. It was then argued that the trial suffered from misjoinder of charges in that there were six items of moneys in respect of which misappropriation was alleged and three entries in respect of which falsification of accounts was charged against the appellant. There is some conflict of judicial opinion as to whether a charge of misappropriation where a lump sum consisting of several items together with a charge of falsification of several entries made with a view to screen the misappropriation is correct. We need not in the present case decide which view is correct. The appellant did not at any earlier stage take objection to the charges under Sections 409 and 477A on the ground that he was likely to be embarrassed in his defence. He has also not shown that any prejudice was caused to him and that being so this contention also must fail. 9. The last contention was that though he was charged under Section 120B and Section 477A no sanction under Section 196-A(2) of the Criminal Procedure Code was obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is by itself distinct from the offence to do which the conspiracy is entered into. Such an offence, if actually committed, would be the subject-matter of a separate charge, If that offence does not require sanction though the offence of conspiracy does and sanction is not obtained it would appear that the court can proceed with the trial as to the substantive offence as if there was no charge of conspiracy. In Sukumar Chatterjee v. Mosizuddin Ahmed, 25 C.W.N. 357 where the charge was under Section 404 read with Section 120B and no sanction was obtained it was held that the case could proceed though only under Section 404. Similarly, in Syed Yawar Bakht v. The Etnperor, 44 C.W.N. 474, the accused was charged under Section 120B read with Section 467 and also under Section 467 read with Section 109 of the Penal Code. No sanction was obtained. It was held that the consequence of not obtaining the sanction was as if the charge under Section 120B read with Section 467 had never been framed but the accused could be convicted under the other charge viz., under Section 467 read with Section 109 of the Penal Code. The same view has also been taken by the Punjab High Court in Ram Pat v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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