1969 P Cr (PLP)

AKRAM, J.‑--This is an appeal by our leave from a conviction and sentence of rigorous imprisonment for nine months under section 420, Penal Code. The facts may be briefly stated as follows:‑ The appellant Lutif Ali Shah was working as an `E' grade clerk in the o ice of the Commandant Sind Police Rifles at Hyderabad. He, however, worked as `D' grade clerk from 19‑8‑46 to 30‑11‑46 and again from 20-12‑46 to 8‑1‑47 during certain leave vacancies which had occurred in the office. In 1946 the pay‑scale having been increased with retrospective effect, the appellant became entitled to Rs. 93‑7‑0 for the period mentioned above due to the increase in the salary. This sum of Rs. 93‑7‑0 was received by the appellant on 13‑1‑48; nevertheless on 26‑10‑49 he made an application to the Assistant Comman dant (Exh. 4‑C) claiming Rs. 93‑7‑0 once again for the period aforesaid. His claim was endorsed by the Accountant in the office and some others also found the claim in order after checking up with the office record; the payment of Rs. 93‑7‑0 was again made on 15‑11‑

49. On 10‑6‑52 the double payment having been brought to the notice of the Commandant, he sent information to the Anti‑Corruption Department and the appellant was thereafter put upon his trial and charges under section 5(2) of Act II of 1947 and sections 420 and 465 of the Penal Code before the Special Judge, Hyderabad. The learned Judge convicted the appellant under section 5(2) of Act II of 1947 and sentenced him to rigorous imprisonment for nine months. Upon appeal the Chief Court of Sind altered the conviction to one under section 420, Penal Code, but otherwise dismissed the appeal. The appellant thereupon preferred the present appeal after obtaining our leave. Counsel for the appellant contended :‑ (1) That it was due to a bona fide mistake on the part of the appellant that payment was taken twice over, but the appel lant had refunded the excess amount soon after he became aware of his mistake, Exh. 4‑J, dated 19‑6‑52, and on the next day, 20‑6‑52, he made an application to the Commandant saying that he had drawn the money in question through mistake due to inadvertence and pressure of work in the office (Exh. 4‑1). (2) That the sanction for prosecution was given by the Commandant and not by the Inspector‑General of Police, who alone could dismiss the appellant, and as such the Social Judge was not competent to try the case under the Prevention of Corruption Act II of 1947. (3) That the Court was not functioning under Act II of 1947, but under the Sind Prevention of Bribery and Corruption Act XXIV of 1950 and consequently sanction under section 8 of Act XXIV of 1950 was necessary, and the sanction under section 6 of Act II of 1947 was of no avail. As to point No. 1, it appears that the appellant's application to the Assistant Commandant dated 26‑10‑49 (Exh. 4‑C) was referred to the Accountant and several others for checking up from the office record the correctness of the claim made by the appellant in his application; that it was after scrutiny that a certificate was issued in favour of the appellant, and thereupon the final order was passed by the Assistant Commandant, dated 7‑11‑49 in the following terms:‑ "As he is entitled to it, he must be paid." The actual payment was made on 15‑11‑

49. Thus the second payment was nearly after two years of the first payment. Some confusion of thought also appears to have been occasioned by a Government Resolution dated the 7th July 1949 (Exh. 4‑D) according retrospective sanction to the post of a ninth clerk in `D' grade for the period from 1st April 1944 to 31st August 1949, some portion of which obviously covered the officiating period of the appellant in that grade. There is no finding by the Chief Court of Sind that there was any sort of collusion between the appellant and the clerk (Parmanand) and others in the office. In fact, the learned Judges have remarked in their judgment:‑ "If then Parmanand lacked dishonest intention but nevertheless deceived the Assistant Commandant, and thereby induced him to deliver (through the Treasury) money to the appellant, the appellant is guilty of abetment by application of the principle illustrated at illustration (d) to section 108, P. P. C." The Assistant Commandant, to whom Exh. 4‑C was presented, has not himself come forward to depose in the case as to how he was dishonestly induced by the appellant and deceived into giving the order for payment. Under section 420 it is necessary to establish dishonest deception of the person deceived. Dishonest intention is a state of the mind and is generally to be ascertained A from the conduct of the accused and the surrounding circum stances. It is a matter for consideration whether the independent scrutiny by the office and its note to the Assistant Commandant were not responsible for the error. In our opinion, in this respect the prosecution evidence seems to be scanty and not such as can sustain the conviction of the appellant under section 420, Penal Code. In this view of the matter it becomes unnecessary to decide the other points raised. We accordingly allow the appeal, set aside the conviction and the sentence of the appellant and direct his acquittal. Appeal accepted.