Haripada Dhar vs The State

Guha Ray, J.—The Appellant Haripada Dhar was convicted by a Special Judge u/s 409 of the Indian Penal Code for having committed criminal breach of trust in respect of a sum of Rs. 26 as a public servant on July 28, 1952, when he was employed temporarily as a Money Order Clerk at Kalipahari Sub-Post Office and he was sentenced to rigorous imprisonment for two years and a fine of Rs. 200 or in default of the payment of the fine to further rigorous imprisonment for three months. It was directed that the amount of the fine was to be paid out of a sum of Rs. 246 which the Appellant deposited with the Post Master on August 6, 1952, the balance of Rs. 46 being refunded to him and that out of the fine a sum of Rs. 100 was directed to be paid to the Postal Department of the Government of India and the balance to the State of "West Bengal. There were two other charges against the. Appellant but he was acquitted of those charges. Admittedly, the Appellant was appointed by the Superintendent of Post Offices, Burdwan Division, as a temporary clerk in 1952 and admittedly he joined his duties at Kalipahari Sub-Post Office on July 19, 1952. It is further an admitted fact that the Appellant was placed under suspension with effect from August 19, 1952, so that he was actually working in a temporary capacity in the Kalipahari Sub-Post Office from July 19, 1952, to August 18, 1952. It is the case for the prosecution that the Sub-Post Master allotted to the Appellant certain duties including the duties of a Money Order Clerk. In that capacity he had to receive Money Orders with the requisite money and the commission from members of the public and after entering the same in different registers it was his duty to make over, the cash collected at the close of the day to the Sub-Post Master as usual. As the Appellant was acquitted of two out of the three charges and convicted only on one charge we are concerned in this appeal only with Money Order No. 2979, dated July 28, 1952, out of which this charge arises. On this Money Order a sum of Rs. 40 was remitted by Murat Kaut, P.W. 12 to his father Dumar Kaut. The Money Order form was actually written by P.W. 11, a postal peon attached to the Post Office (Earn Chandra Tewari) and after the Money Order form was written Murat Kaut himself handed over the Money Order form together with a sum of Rs. 40 and a Money Order commission of as. 10 to the Appellant who was working as Money Order Clerk. The Money Order Clerk received the amount and gave Murat Kaut a receipt which has been marked "Z" for identification, the carbon copy thereof kept in the Receipt Book of the Post Office being ext. 9/2. In the copy of the receipt ext. 9/2 as well as in the original receipt marked "Z" for identification, the amount in words appears to be "Fourteen only". In the Money Order form, ext. 11/4, the amount in figures as well as in words in the portion where the entires have to be filled up by the remitter the figure 40 was changed into 14 and the word "forty" appears to have been changed into "Fourteen". Then on top of the Money Order form which is to be filled up in the Post Office the amount in figure is 14 and the amount in words is also "Fourteen only". It is the prosecution case that the Appellant is responsible for writing the top portion and in the Journal also the amount appearing against the Money Order No. 2979 is "14", and the commission charged is 4 annas. The prosecution case accordingly is that although the Appellant received from Murat Kaut a sum of Rs. 40-10 including the commission chargeable on a remittance of Rs. 40, what he did was to tamper with the figures in the Money Order form to introduce a shorter figure in the top portion thereof and also in the Receipt and the Journal and persuading the Sub-Post Master to believe that actually the amount remitted was only Rs. 14 so that only Rs. 14 was actually remitted to Murat Kaut''s father and not Rs. 40. The case for the prosecution accordingly is that the Appellant committed criminal breach of trust in respect of this amount of Rs. 26 only.

The defence of the Appellant is that he was not guilty because he was not the Money Order Clerk at all and if he occasionally wrote the receipts, etc., he did so only under the orders of the Sub-Post Master and he had nothing to do with the receipt of money from members of the public.

The learned Judge on the evidence found first, that although the assignment of duties even temporarily by a Sub-Post Master to his subordinates requires the approval of the Superintendent of Post Offices and although the approval which P.W. 2 Shyamapada Dutta, the Post Master at the relevant time claims to have received from the Superintendent of Post Offices regarding the assignment of the duties of the Money Order Clerk to the accused was not proved, it was a fact that the Appellant was actually working at the relevant period as a Money Order Clerk. Secondly, he found that the Appellant received from Murat Kaut a sum of Rs. 40 and then made it appear by tampering with the Money Order form and making false entries in the Receipt and the Journal that Murat Kaut remitted only Rs. 14 and not Rs. 40. He accordingly found the Appellant guilty of a charge u/s 409 of the Indian Penal Code.

The first question, therefore, for decision in this appeal is whether or not the Appellant was actually working as a Money Order Clerk during the relevant period. It is on this point that the defence appears to have concentrated its attack on the prosecution case. The evidence of P.W. 2 Shyamapada Dutta who was the Sub-Post Master at the relevant time except for a short period when Sudhangsu Kumar Mukherjee, P.W. 3, relieved him from the latter part of July up to August 3, 1952 and of Sudhangsu Kumar Mukherjee, P.W. 3, is that the Appellant was working as a Money Order Clerk and in that capacity his duty was to receive money with Money Order forms, etc., from the members of the public. It appears from Rule 4 in vol. 6 of the Posts and Telegraphs Manual, 3rd Ed., that the distribution of duties in a Post Office including a Sub Post-Office is to be made on the approval of the Superintendent of Post Offices and in this case, as I have already said in my statement of the prosecution case, it is the evidence of P.W. 2, Shyamapada Dutta, that the Superintendent of Post Offices did approve of the assignment of the duties of a Money Order Clerk to the Appellant, but as that was not produced the inference must be against the prosecution, or in other words that there was no approval of the Superintendent of Post Offices to the assignment of the duties of a Money Order Clerk to the Appellant. But the question is whether in fact although there might not have been this approval of the Superintendent of Post Offices, the Appellant was actually working as a Money Order Clerk. On this point apart from the evidence of the two Sub-Post Masters, Shyamapada Dutta and Sudhangsu Mukherjee, P. Ws. 2 and 3 respectively, there is the evidence of Murat Kaut, P.W. 12 and Jinnat Kaunt, P.W. 7, both of whom are colliery workers and who remitted money. They say that they handed over the money to the Appellant. In cross-examination their statements that they handed over the money to be remitted to the Appellant were not challenged on behalf of the defence. There is also the evidence furnished by the documents, exts. 11/4, 9/2 and 10/2. Syamapada says that the top portion of ext. 11/4 is in the handwriting of the Appellant. It is also the evidence of Shyamapada Dutta that the carbon copy of the Receipt, ext. 9/2 and the corresponding entry in the Journal, ext. 10/2, are in the handwriting of the Appellant. Shyamapada Dutta does not appear to have been challenged in cross-examination on this point at all. It is also not the case of the Appellant in his statement u/s 342 of the Code of Criminal Procedure that he did not write out these things. All that he states in his examination u/s 342 is that if at times he wrote receipts, etc., he did so under the directions of the Sub-Post Master. In these circumstances, there is no reason to doubt the evidence of Shyamapada Dutta that the top portions of exts. 11/4, 9/2 and 10/2 are in the handwriting of the Appellant. These, therefore, confirm the evidence of Murat Kaut and Jinnat Kaut and from this it is abundantly clear that during the relevant period the Appellant was working as a Money Order Clerk. If he was merely writing receipts, etc., under the directions of the Sub-Post Master it is most unlikely that he should have signed his name above the place where the Money Order Clerk is to sign. The learned Judge, therefore, was fully justified in finding that on July 28, 1952, when Murat Kaut remitted Rs. 40 to his father Dumar Kaut the Appellant was working as a Money Order Clerk and in that capacity he received a sum of Rs. 40-10 inclusive of the commission.

The next question for decision in this appeal is whether the Appellant committed criminal breach of trust in respect of Rs. 26. The charge of course omits to include the sum of six annas which out of an amount of ten annas appears to have been misappropriated and it confines itself merely to the balance of the amount remitted. This ext. 11/4 was not sent to the hand writing expert by the learned Judge presumably through inadvertence. The result, therefore, is that the handwriting expert had no occasion to examine this writing but then, as already stated, this has been proved by P.W. 2 Shyamapida Dutta to be in the handwriting of the Appellant. The definite evidence of Murat Kaut is that he handed over the sum of Rs. 40-10 to the Appellant and, as I have already stated, Murat Kaut''s statement on this point is left completely (sic) a challenged in cross-examination. There is also no reason at a(sic) why he should perjure himself against the Appellant. If Murat Kaut it is believed, as I think he must be on the materials on the record, the Appellant must be held to have received from Murat Kaut (sic) sum of Rs. 40-10. If that is so the moment he enters Rs. 14 only in the top portion of ext. 11/4 the amount remitted and shows the same amount in the carbon copy of the receipt ext. 9/2 and also in the journal ext. 10/2 he makes it appear that the remitter was remitting only Rs. 14. There is also a tampering with the amount in figures as well as in words in the bottom portion of the Money Order form which is to be filled up by the remitter. Of course there is no direct evidence to show who is responsible for these alternations in that portion of the Money Order form because nobody seeks to prove that the figure "14" in that portion of the Money Order form and the alterations in the word "fourteen" from "forty" were made by the Appellant. But as the Appellant is clearly responsible for the writing in the top portion it is not difficult to see that he must have been responsible for the alterations in the bottom portion also although there is no evidence on the point. But whether that is so or not does not alter the fact that although the Appellant received a sum of Rs. 40 from Murat Kaut together with a commission of ten annas he was making it appear that the amount was only Rs. 14 both in words and figures in the top portion of the Money Order form ext. 11/4 as well as in the carbon copy of the receipt and the journal, exts. 9/2 and 10/2, respectively, and also in the original receipt marked "Z" for identification and the only object of this could have been to keep back the balance of the amount handed over to him by Murat Kaut. That this was dishonest is obvious and that Appellant did this while working as a Money Order Clerk is also beyond dispute. That being so, the charge u/s 409 of the Indian Penal Code is amply established against him on this count.

On behalf of the Appellant a question was raised that the prosecution of the Appellant without sanction from the appropriate authorities is bad in law u/s 197 of the Code of Criminal Procedure. It is now settled that if a public servant commits an offence while working as such, sanction would be required only where the act complained of as constituting the offence is an integral part of his duties as a public servant and no sanction will be needed where the act complained of as constituting the offence is not an integral part of his duties as such public servant. The question therefore arises whether in this case what the accused did is really an integral part of his duties as a public servant. Undoubtedly it was bis duty as a Money Order Clerk to receive money from the members of the public who wanted to remit money by Money Order. It was also his duty, as such, Money Order Clerk to make the necessary entries in the relevant registers, etc. and at the end of the day to hand over the money with relevant papers to the Sub-Post Master. The question, however, is whether when instead of handing over the entire amount he keeps a part and commits criminal breach of trust in respect of that part his act is an integral part of his official duties. It was his official duty to enter the full amount he received in the appropriate documents and to hand it over to the Sub-Post Master. What he does, however, is to tamper with the writings in the portion of the Money Order filled by the remitter and then to enter in the top portion of the form, both in figures and in words, the amount of Rs. 14 and to hand over this amount to the Sub-Post Master and not the full amount. What, therefore, he does, is partly going out of the normal routine of his official duties to tamper with the original writings in the Money Order form and also partly an omission to carry out his official duty, namely, the entry of the entire amount received by him from the remitter in the papers and then handing over of the whole of it to the Sub-Post Master. Thus, if in the first there is a departure from the normal round of his official duty and a straying into acts which are no part of his duty, in the second there is an omission on his part to do a portion of his duties, a mere partial discharge of such duties producing an altogether misleading impression of the transaction as a whole. Neither of these two parts of the Appellant''s acts is such as enables him to say, if challenged, that whatever he did, he did in discharge of his duties as a public servant. The act or rather the series of acts which constitute the offence cannot in the circumstances be said to be an integral part of the official duties of the Appellant. Consequently, in this case no sanction will be necessary.

Mr. Roy on behalf of the Appellant finally asked us to consider the question of sentence. The amount misappropriated is only Rs. 26. The ends of justice, in our opinion, will be sufficiently met if the sentence of two years'' rigorous imprisonment imposed upon the Appellant by the learned Judge be reduced to six months'' rigorous imprisonment, the sentence of fine together with the defaulting sentence being left untouched.

Subject to this reduction of the sentence of imprisonment, this appeal is dismissed. The Appellant must surrender to his bail forthwith.

Bhattacharya, J.

I agree.