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TMI Blog1954 (2) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... vant, he committed criminal breach of trust in respect of a sum of Rs. 3,496/5/- of Government money between the 1st December, and the 18th December, 1948. The other charge was that in order to find the money to cover up the embezzlement, he tried to raise a sum of Rs. 3,350/- by way of loan from one Seth Brij Lal, misrepresenting to him that it was required by the then Subordinate Judge and that by such representation he dishonestly induced the said Seth Brij Lal to issue a cheque for the sum of Rs. 3,350/-. At the material period of time Shri K. S. Gambhir was the Senior Subordinate Judge of Hoshiarpur in the place of the regular Senior Subordinate Judge, Shri Bhandari, who was officiating as the District and Sessions Judge, from the 13th November to the 16th December, 1948. Under arrangements made by the High Court, the Senior Subordinate Judge of the place was vested with certain administrative duties, one of such being that he was to draw and disburse month by month the salaries of the Civil Courts establishments at Hoshiarpur and of three other outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) Garhshankar. The normal procedure for the disbursement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeared surprised at it and repudiated the same. Consequently Seth Brij Lal rushed up to the Bank and stopped payment, got back the cheque from the Bank authorities, and informed the Subordinate Judge. The Subordinate Judge thereafter took a statement from him. This statement and the returned cheque were duly sent up to the Police for investigation. Suspicion having been thereby aroused against the appellant as regards the handling of the moneys drawn by him, the relevant accounts were immediately checked and it was discovered that the salaries of Una and Dasuya establishment were not disbursed. Accordingly, two complaints, one in respect of a charge under section 420 and the other in respect of a charge under section 409 of the Indian Penal Code were filed against the appellant, the first on the 17th December at 8-30 p. m. and the second on the 18th December. It would appear also that the appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for leave for a month. He was not found for some days and was actually arrested on the 3rd January, 1949. Meanwhile the entire amount was deposited by the brother of the appellant on the 21st of De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But we have been pressed to express our view on the merits of the case inasmuch as the conviction has affected the official employment of the appellant and has caused him serious loss and dislocation in his life. 4. On the above statement of the case it is fairly clear that the appellant must be found guilty of the offences charged unless the defence put forward by him can be held to be made out to the extent of its being reasonably probable. In the course of the trial certain circumstances relating to this transaction have been elicited which have been variously relied on by the prosecution as well as the defence as being in support of their respective cases. The learned Judge of the High Court who dealt with this matter in revision sums up the position as follows in his judgment. The issue in the cases is quite simple -- either Mr. Ghambir is the villain of the piece and Bhagat Ram is a victim of his oppression and is being made to embezzle a sum of Rs. 3,500/- for Mr. Ghambir's benefit on the 4th of December, and then falsely being accused of trying to cheat the money-lender Seth Brij Lal when in fact the loan was being taken on behalf of Mr. Ghambir, or else ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence is false or improbable. In a case like this depending on the conclusions drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt. This Court has affirmed the proposition in - 'Hanumant v. State of Madhya Pradesh', MANU/SC/0037/1952 : 1953CriLJ129 (A), in the following terms at pp. 345-346. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first, instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain memos were issued to the other Subordinate Judges of the outlying stations requesting that their respective Nazirs should be sent over to the Sadar station for receiving the salaries of their establishments. This order appears to have been issued as part of a general order, Ex. P. W. 9/A, which is as follows: Generally salaries of officials in the Mufassil are received late. To avoid this delay it is proposed that Nazirs posted at the Mufassil should personally come to the Sadar along with their respective pay bills in the first week of every month and should not send anybody else so that they should take with them salary of the establishment. As a rule, pay is drawn at the Sadar on the first day of every month. Hence, all Mufassil Nazirs should bring with them their pay bills within the first week of every month and return the same day after receiving salaries of their establishments to avoid cash-order or any other trouble. Acquittance roll shall be kept at the Sadar. Nazirs may also take them along with salaries. This is for urgent information. ORDER This Robkar be sent to the Sub-Judge, Una, with the request that the Nazir may be kindly instructed to comply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof this answer appears to be false. There can also be no doubt that the orders contained in Ex. P. W. 9/A were issued under his specific instructions. The Subordinate Judge takes advantage of the fact that Ex. P. W. 9/A is signed by P. W. 6 and the matter thereof is in the handwriting of the appellant. But P. W. 6 deposes that the Subordinate Judge admitted before him that he did instruct the appellant to send for the Mofassil Nazirs to receive payment at Sadar. P. W. 6 also deposes that he made similar admission before Shri Bhandari in the departmental enquiry against the appellant which followed, pending the prosecution. Shri Bhandari's evidence confirms this but the Subordinate Judge, Shri Ghambir, falsely denies having so admitted. If as appears to us to be clear, the pleas put forward by the Subordinate Judge to explain these circumstances are false and if the Subordinate Judge not only authorised cash to be drawn for outside stations instead of mere cash-orders but when the delay in disbursement was specifically drawn to his attention, he did not also take any notice of it as against the appellant and only authorised the issue of instructions to the outlying statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. But the Courts do not seem to have appreciated that the same consideration equally weighs in favour of the appellant. The trial Magistrate has noted in his judgment that the appellant had an unblemished record of service. The prospect of jeopardizing the same is one which would equally weigh with him to prevent his misappropriating the money for his own use. The reaction on his position and on his future, consequent on such misappropriation, is not the less for him, from his point of view, merely because he is a person in lesser official situation and drawing a lower salary. One cannot help feeling that in viewing this circumstance as in others, the Courts below have without justification -- unconsciously it may be -- adopted differing standards as between the Subordinate Judge and the Civil Nazir. One of the main reasons which persuaded the learned Judge of the High Court to accept the view of the Courts below that Ex. D. A. was a forgery was the following. The very next day after the incident took place, i.e., on the 18th December, the appellant sent two letters, Exs. P. W. 6/C and P. W. 6/D, one to the clerk, P. W. 6, Ramdas, and another to a process-server, Barkat Ram. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been required by him in that connection. Even in the earliest statement (Ex. P-B. dated the 19th December, 1948), which he made to the Subordinate Judge, Shri Ghambir, he stated as follows: He (the appellant), however, told me that the Sub-Judge had to repay the amount in respect of land. Since it was within my knowledge that the S. Kartar Singh, Sub-Judge, had purchased land, I guessed that the said Sardar Sahib might have asked for money. The Subordinate Judge himself, in his cross-examination says as follows: I offered a bid to purchase two plots of land offered to the refugees by the East Punjab Government for sale at Hoshiarpur on 25-6-48 and 10 per cent of the amount was paid the same day. It was about Rs. 580/- or a little above or less. It was paid on the same day and after a month or so the Government refused to confirm the sale and the money was refunded to the bidders and the balance was never paid. Two plots were purchased by me one in my name and one in the name of my son Kewal Krishan and another plot was purchased by my father-in-law. I had taken to the spot Rs. 300/-. I handed over that money to S. Harkishan Singh A. D. M. and my father-in-law gave m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso some evidence in support of this. Hakim Rai, P. W. 5 and Seth Brij Lal, P. W. 14, both definitely say that a 'Ruqqa' bearing the signature of the Subordinate Judge and authorising the raising of a loan on his behalf for a sum of Rs. 3,350/- was shown to them. No doubt the 'Ruqqa' itself has not been produced and P. W. 5 says that he was not in a position to identify the signature of the Subordinate Judge. But he does say that he read the 'Ruqqa' carefully and was satisfied that the Judge Sahib really wanted money. In his earliest statement Ex. P/B dated the 19th December, made to this very Subordinate Judge, P. W. 5, sets out the contents of the 'Ruqqa' as follows: I (i.e. Sardar Ghambir Singh, Sub-Judge) need Rs. 3,350/- which I will repay to you after some days . Here again it is not either necessary or feasible to hold definitely that this defence has been completely made out. But it certainly cannot be said that it is improbable or false. 11. One of the outstanding features of this, case is that the defence which has been put forward at the trial is one which has been very elaborately and categorically set out the very next day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. With respect, the learned Judge does not seem to have appreciated that the fact of Brij Lal having issued a cheque in the name of the Subordinate Judge himself makes all the difference. It is obvious that if the embezzlement, however temporary, came to light, the fact of the amount having been raised on the basis of a cheque in his name and his having taken advantage of it in spite of information thereof having been conveyed by Seth Brij Lal himself, would have been a serious matter. The cheque itself would have been fairly strong evidence against him. It is not unlikely that he expected merely cash accommodation which would leave no documentary evidence behind but that when he found that that expectation did not materialise, he saw the danger into which he was running. 13. Again the Courts below were inclined to think that if the defence of the appellant was true and he had in his possession a 'Ruqqa' Ex. D. A., acknowledging receipt of the amount of Rs. 3,500/-, the appellant would have at once put it forward on the 17th itself at the premises of the Imperial Bank when Seth Brij Lal stopped payment on the ground of misrepresentation of the Subordinate Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f justice is accordingly called for. 15. It may be noted that in the above discussion we have ignored the alleged embezzlement of the small extra amount of Rs. 149/- since we consider the appellant's explanation therefore in answer to question No. 7 on 19-11-1949 not to be improbable and the same has also been paid up. 16. There is, however, one other aspect of the matter which requires consideration. The very receipt, Ex. D. A., on which the appellant relies shows that the appellant intentionally handed over the money in his custody to the Subordinate Judge for being utilised by him for purposes other than the disbursement of the salaries though it be statedly for a day. The trial Court has pointed out that even on this view the offence under section 409 of the Indian Penal Code stands committed. That is also the view taken by the Sessions Judge on appeal as an alternative. The correctness of this view, however, would depend upon whether the Civil Nazir, in drawing the money from the Treasury under the authority of the Subordinate Judge, and keeping the same in his custody, can be said to have been entrusted with the money. The exact legal position as to the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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