1977 P Cr (PLP)

AGHA ALI HYDER, J.‑This appeal from the judgment of the learned Special Judge‑cum‑Inquiry Officer, Hyderabad, convicting the appellant for offences under section 409, P. P. C. read with section 5 (2) of Act 11 of 1947, and sentencing him to R. I. for 5 years and a fine of Rs. 30;000 or in default to undergo R. I. for 21 years more, arises in the following circumstances: ‑

2. The prosecution story in brief is that the appellant was appointed as a Property Clerk‑cum‑Accountant in the office of the Special Magistrate, Municipality, Hyderabad on 30‑1‑1967 and his duties were to receive the fines imposed by the Court, enter the same in the Fine Register and get the same deposited in the National Bank, Risala Road, Hyderabad. He was also in charge of the recounts book and had a safe, these keys whereof remained with him. It is alleged that near about September 1967, when he appeared before; the Special Magistrate for getting the challans signed, the latter found that entries of fines prior to the date had not been made. He made inquiries from the appellant and could not get any satisfactory answer. The probe revealed that a number of credits were not there and even some challans duly signed by the Magistrate were lying in the office. The appellant is alleged to have admitted that there were irregularities in the entries in showing lesser amount in the Fine Register and he made such endorsements on some pages of the Register, which showed that a sum of Rs. 13,135 remained unaccounted for. Thereupon, the Special Magistrate made a report to the Deputy Commissioner, Hyderabad, and the latter appointed a Committee to audit the account registers, receipt books, challans and other records and also directed the Special Magistrate to lodge the report with the police. A few days after this, the appellant is alleged to have met the then Additional District Magistrate by the name of Mr. Mohammed Hashim Memon, requesting him for being granted some time to collect the money which had not been deposited. The Circle Officer, Anti‑Corruption Establishment, after due investigation and obtaining the sanction of the competent authority, ultimately submitted the charge‑sheets. 49 charge‑sheets were presented before the Special Judge for various offences. The Special Judge ordered all these cases to be tried together.

2. The appellant, after the trial, was eventually convicted by the then Special Judge and sentenced to R. I. for 4 years and a fine of Rs. 40,000 or in default to undergo R. I. for 4 years more. An appeal was preferred against this Judgment of sentence and conviction, and came to be allowed by this Court on the ground that the appellant was not given the opportunity to examine his defence witnesses. The case was remanded for a fresh trial, with the direction that only the defence witnesses who had not been examined, should be examined by the Court, and the case be disposed of on merit. The substance of the accusation was that from 1‑1‑1967 to 30‑11‑1967, while the appellant was working as a Property Clerk‑cum‑Accountant in the Court of the Special Magistrate, Municipality, Hyderabad, he had realised fines totalling Rs. 1,56,650, but credited in the Government treasury a sum of Rs. 1,29,496, and the balance of Rs. 27,154 had been misappropriated by him. The pro secution in support of its case examined 6 witnesses, while 9 defence witnesses were examined by the appellant. The appellant in his statement at the trial admitted that he was a property clerk and not the Accountant, and the fines used to be received by him and Abdul Ghafoor also who was the Sarishtedar of the Court, and the entries in the Fine Register used to be made by the two of them. The challans also used to be prepared by both of them, while the amounts used to be deposited in the National Bank by the peon. The fine Register also used to be written and maintained by the two of them. He also admitted to have made the entries in his own hand‑writing and under his in itial, about he shortages of amount on various dates and also about the failure to credit the amounts in question. He also admitted having prepared a number of challans, which were shown to him. He denied having gone to Mr. Mohammed Hashim Memon, the then A. D. M. at all. Further, he went on to say that the entries in the Fine Register about the shortages and its accountability were because "the Magistrate misguided him to make this note on 1‑11‑1967 that I have failed to deposit this amount of Rs. 590 on 7‑3‑1967".

3. It is not disputed that a sum of Rs. 27,254 part of the proceeds of the fines imposed by the Special Magistrate, had been misappropriated. Ghulam Mohammed was the Head Accountant of the Treasury Office, Hyderabad. The accounts had been audited by him and one Mir Mohammad Baluch. Ghulam Mohammed has stated that he had audited the account item by item and produced the audit notes. He states to have checked the regis ters, the challans, the receipt books and the Robkaries, and also verified the treasury record. The only question for consideration is as to whether the same had been misappropriated by the appellant. Out of the six prosecution witnesses examined, the material evidence in that aspect of the case will be that of Abdul Ghafoor, the Serishtedar of the Court. It appears that Mr. Mohammed Bux Baluch, the Magistrate had died before the trial could commence. Abdul Ghafoor has produced a number of challans and even specified the shortages of the items deposited on various dates. He has also deposed as to how the suspicion of Mr. Mohammed Bux Baluch had been aroused and he had started the probe in the matter. He has also pointed the various endorsements made by the appellant on the fine Register in regard to the shortages. The appellant also in his statement at the trial stated as under: "I admit to have made the notes in my handwriting and under my initial about the shortages of the amount on various dates and about the failure to credit the amounts in question". He however, stated that he had been pro mised by the Magistrate that if he came to his rescue, he will also be helped by him (the Magistrate). Abdul Ghafoor does mention of a talk between the two, but he is reticent, as to whether there had been any talk in regard to the appellant. He however, denied that there was any inducement or threat.

4. It is true that D. W. Mohammed Hafiz, the Naib Court of the Special Magistrate who used to come for minor cases, has stated that the Special Magistrate had told the appellant that he (the appellant) need not worry and every thing will be all right, and the endorsements had been made there after, but this is not to be found even in the statement of the appellant. Obviously, he was trying to come to the assistance of the appellant, and nothing more.

5. There is also the evidence that a few days after the lodging of the report, the appellant had visited Mr Mohammad Hashim Memon the A. D. M. Hyderabad and requested for some time, to make good the deficiency and had admitted the misappropriation. The two questions put to Mr. Mohammad Hashim, could not elecit anything worthwhile from him. Mr. Mohammed Hashim had nothing to do with the appellant and there is no reason to disbelieve his version. Even the witness examined by the appellant, apart from Mohammed Hafiz, have nothing worthwhile to say. D. W. Yaqoob has deposed about the payment of the fines to the Serishtedar. So has Mohammed Ayub. They are apparatently speak‑easy witnesses. Ghulam Mustafa deposed that Mr. Mohammed Bux Baluch used to try the minor cases at home, while Imdad Hussain spoke of the levish living of Mohammad Bux Baluch and the building of a bungalow by him. D. W. Chutton Khan testified that he had worked as a mason for the bungalow. Shamim wanted to give his estimate about the character of the appellant, and the question was not allowed D. W. Mohammad Bux talked about Abdul Ghafoor not handing over the charge to his successor. Even Rasheed had done nothing more than providing some record which is of no consequence to the case. All this is neither here nor there.

6. It is true that Robkaris and some registers have not been produced, but in the admitted circumstances of the case, it hardly improves the case of the appellant. He was working as the Property Clerk‑cum‑Accountant in the Court of the Special Magistrate. and the finding of the trial Judge that it was he who was responsible for the entries and the collections of fines, is eminently justified. I am therefore of the opinion that the case against the appellant leas been clearly established. I will, therefore, maintain his conviction.

7. It is to be seen that the case had been registered against the appellant in 1967. He had been convicted by the Special Magistrate earlier also, and are appeal had been preferred which came to be allowed with certain directions. It was thereafter that the appellant vas again convicted by the succeeding Special Magistrate. I am informed that he is in custody from the date of the Judgment i.e. 25‑3‑1974. He has thus served out 4 days short of a full year. He has also lost his job, apart from the mental anguish experienced by him, for this protracted trial. I am; therefore, of the opinion that the substantive sentence of 5 years is not called for. It is reduced to the period already under gone by him. The fine of Rs. 30,000 is maintained. The learned Special Judge had ordered a sentence for 2 years' R. I. in case of default. The period of 2 years awarded in default is reduced to one year R. I. With this modi fication, the appeal is dismissed. Order accordingly.