P L D 1960 Dacca 405 (PLP)

3. The defence of the appellant is that he actually purchased the eight time‑pieces at a cost of Rs. 276 on 16‑6‑56 from the Paramount Watch Co. of 105, Islampur Road, Dacca. His further case is that as the money that was sanctioned by the Union Board was to be shown as spent within the month of Chailra, the last month of the financial year of the Union Board, he requested the salesman of the Company to ante-date the Cash Memo. and, accordingly, the salesman put the date 16‑3‑56 in the Cash Memo. There was no change made in the Cash Memo. nor did he erase anything from the same.

4. Mr. Abdus Salam Khan has appeared for the appellant and Air. Ruhul Islam for the State. Mr. Khan has firstly con tended that the conviction of the appellant under section 417, Pakistan Penal Code, after his conviction under Section 409, Pakistan Penal Code, on the facts of this case, is not maintainable. It is difficult to follow how, on the facts of this case, it can be held that offences, both under sections 409, Pakistan Penal Code, and 417,‑Pakistan Penal Code, have been made out. On the facts alleged, it is a pure case of misappropriation of money entrusted to the accused and we are not able to see how his act can also come within the definition of cheating in section 415, Pakistan Penal Code. Mr. Ruhul Islam has very frankly' conceded that the conviction under section 417, Pakistan Penal Code, cannot be supported.

5. Mr. Khan's next contention is that the appellant not being a public servant within the meaning of section 21, Pakistan Penal Code, his conviction under section 409, Pakistan Penal Code, is not maintainable. Mr. Ruhul Islam contends that the appellant is a public servant and refers us to the 11 th clause of section 21, Pakistan Penal Code. The said clause runs as follows :‑ "Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election." We are unable to see how the accused who is only accused of a Union Board can come within this clause of section

21. Mi. Ruhul Islam has not drawn our attention to any provision of the Village Self‑Government Act to show that the functions of a member of' a: Union Board attracts the 11th clause of section 21, or, for the matter of that, any clause of that section. The learned Judge has? relied upon the 10th clause of that section for the purpose of hold ing that the appellant is a public servant. We are unable to agree: with him that the appellant is an officer discharging the functions mentioned in that clause, being a member of a Union Board. Mr. Ruhul Islam then refers us to the illustration to that section which says that a Municipal Commissioner is a public servant. We cannot hold on the analogy of the illustration that a Union Board member is also a public servant.

6. On the merits of this case, the learned Advocate for the appellant has firstly argued that the defence version of the case that Exh. 10 was granted by the salesman of the Company for the sum of Rs. 276 after ante‑dating 16‑3‑56 receives support from some of the papers produced by the Company. The learned Advocate refers us to Exh. C, the counterfoil of another Cash Memo. which was issued on 16‑6‑56 showing the sale of two pieces of time‑piece clocks at Rs.

60. The learned Advocate points out that this sup ports the defence story that the accused actually purchased eight pieces of time‑piece clocks by two vouchers, one for Rs. 60 and another for Rs. 216, and it was when the accused asked the salesman to change the date from 16‑6‑56 to 16‑3‑56, the salesman thought fit to issue one cash memo. for all the eight pieces of time piece clocks showing the same for Rs.

276. The learned Advocate has sought to re‑inforce his argument by referring us to the Cash Book of the Company. The Cash Book of the Company is Exh. 11 in this case. It shows that on 16‑6‑56 there were two sales of time‑piece clocks, one by voucher No. 8348 and another by voucher No. 8349, and the two sums obtained by the said sales were shown as consolidated income on account of the sale of time piece clocks of that date. The relevant entries in the Cash Book in respect of vouchers Nos. 8348 and 8349 are Exhts. D (1) and 11 (1) respectively. The amount of Rs. 276 entered on that page of the book has been marked as Exh. D at the instance of the defence. Mr. Khan, on the basis of these entries, contends that the appellant actually purchased eight pieces of time‑piece clocks for Rs. 276 and the voucher was ante‑dated by the Company at his request in order to show the purchase within the month of Chaitra, 136 % B. S. On the face of this argument, it is difficult to understand what impelled the salesman to grant one voucher in place of two if actually the two sales were shown in different vouchers. On behalf of the appellant, it was suggested that the only request that was made to the salesman was that the date should be put as 16‑3‑

56. We, therefore, do not understand why the salesman on his own accord would think it desirable or neces sary to grant one voucher when two vouchers had already been written out. Besides that, the evidence is this case completely negatives the contention of the learned Advocate. The fact that there was another sale of two pieces of time‑piece clocks on that date or that the sale‑proceeds on account of sales of time‑piece-clocks were added up and shown as the consolidated income on that account on 16‑6‑56 does not establish that these two sales were to one and the same person, because,, on a reference to Exh. 11, we find that, whenever there were incomes by different vouchers on a particular date under the same head, the figures of those incomes were added up in the Cash Book and shown as the consolidated income on that account of that particular date. The Ledger Book of the Company shows this consolidated sums as the incomes under different heads. Therefore, it is for the purpose of showing that the entries in the Ledger Book correspond to the entries in the Cash Book that this consolidation is made. More over, Exh. 13, the Stock Register of the Company, clearly establishes that on 16‑6‑56, ten and not eight time‑pieces were sold. Therefore, the defence contention that these two counterfoils, Exh. 9 and Exh. C, refer to the sales to the accused cannot be accepted. The learned Advocate has suggested that Exh. 13 was prepared by the Company subsequently to support the prosecution case at the instance of the police. It is difficult to understand why the Company would agree to do so.

7. P. W. 9 Naimuddin is the salesman of the Paramount Watch Company who was examined to establish that Cash Memo. No. 8349 dated 16‑6‑56, was issued by him. He has deposed that Exh. 9 is the carbon copy of Exh. 10 in its original form. His evidence is that he sold eight time‑pieces at the rate. of Rs. 27 per piece, the total value being Rs.

216. According to him, the original receipt granted to the purchaser and its copy are both prepared at the same time by carbon process. This witness has deposed that in Exh. 10 excepting the figure 3 indicating the month and the figure 7 of the amount of Rs. 276 is in his hand writing. He claims that the figure 3 indicating the month and the figure 7 of the amount of Rs. 276 are not in his handwriting. His evidence is that the figure 6 has been converted to the figure 3 and the figure. 1 of the amount of Rs. 216 was changed into

7. He also claims that the voucher in its original form showed that the time‑pieces were sold at the rate of Rs. 27 which, however, had been erased. This witness proves that Exh. C. Cash Memo. No. 8348, was written by another salesman Abdul Khaleq. He denied the suggestion that the figure 8 in Exh. 9 was not originally.

8. He also denied the suggestion that one receipt for Rs. 276 with date 16‑3‑56 was issued to the accused Manindra in respect of the two sales of two and six time‑pieces covered by Cash Memos. Nos. 8348 and 8349 at the request of the accused. He also denied that the words at the rate of Rs. 27 were not entered, in the Cash Memo. Exh.

10. The learned Advocate for the appellant has not been able to advance any cogent argument for rejecting the evidence of this witness. His evidence clearly establishes that the receipt, Exh. 10, in its original form, showed that eight time‑pieces were sold at the rate of Rs. 27 per time piece for a sum of Rs. 216 and the date of the sale was 16‑6‑56.

9. The learned Advocate has relied upon another circum stance to show that actually two vouchers were issued originally. According to him, on 16‑6‑56, the accused purchased two Westclox and six Smith time‑pieces. We have not been able to ascertain from the records of this case that actually two types of time‑pieces were actually purchased by the accused. While P. W.n9 deposed in support of the sale of eight time‑pieces by Memo. No. 8349, Exh. 10, it was not suggested to him in cross‑examina tion that actually six Smith Alarm time-pieces and two Westclox time‑pieces were purchased. The only suggestion that was given to this witness in this respect is that the figure 6 in Exh. 9 and the counterfoil, Exh. 10, was changed from 6 to

8. There is nothing on the record to indicate that the accused at any time suggested that two different kinds of time‑pieces had been purchased. For the reasons stated above, we are unable to accept the argument of Mr. Khan that, as a matter of fact, two cash memos. were issued. We are also unable to accede to his request that material exhibits I to VIII, the time‑pieces, should be brought to this Court to see that actually two kinds of time‑pieces were purchased and made over by the accused to the Union Board.

10. The fact that the accused received Rs. 276 for the purchase of time‑pieces from the Union Board is not disputed before us. It is, therefore, clear that the accused spent out of that sum only Rs. 216 and misappropriated the remaining and Exh. 10 was produced after material alterations were made in the same. We, therefore, agree with the learned Judge that the accused is‑guilty of criminal breach of trust as well as the charge of using, as genuine, a document which he knew to be a forged one.

11. In the result, the appeal is allowed in part. The conviction and sentence of the appellant tinder section 417, P. P. C., are set aside. The conviction under section 409 is altered to one under section 406, P. P. C., and we sentence him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200 in default to undergo further rigorous imprisonment for three months. The conviction under section 471, P. P. C., is main tained but, on the facts of this case, we do not think any separate sentence need be passed under that section. His sentence under that section is, therefore, set aside. The appellant is on bail. He is directed to surrender to his' bail bond and serve out the sentence passed on him. He is also directed to pay the fine imposed on him and in default to undergo rigorous imprisonment in lieu thereof. ISPAHANI, J.‑I agree. K. B. A. Appeal partly allowed.