Neelacanta Iyer Vaidyanatha Sarma vs The State

Kumara Pillai, J.—This appeal is filed against the conviction of the appellant under Ss. 410, 469, 473 and 480, Travancore Penal Code, corresponding to Ss. 409, 487, 471 and 477A, Indian Penal Code, and S. 52 of the Indian Post Office Act, 6 of 1898, and the sentences of Imprisonment and fine passed on him in Sessions Case No. 12 of 1952 of the Nagercoil Sessions Court. The sentences passed on him are rigorous imprisonment for three years and a fine of Rs. 200/- under S. 410 T.P.C., rigorous imprisonment for one year under S. 469, rigorous imprisonment for one year under S. 473, and rigorous imprisonment for six months under S. 480, T.P.C.

The sentences of imprisonment have been ordered to run concurrently, and no separate sentence has been awarded for the conviction under S. 52, Indian Post Office Act. In default of payment of the fine of Rs. 200/- the appellant has also been directed to undergo simple imprisonment for six months.

From 1947 to 1950 the appellant, who will hereafter be referred to as the accused, was a Post peon in the branch post office at Aramboly which is attached to the Nagercoil Sub-Post Office. On 7-6-1949, one Sankaran Chettiar sent from Colombo a telegraphic money order for Rs. 25/- to his wife, P.W. 2, at Aramboly, and on receipt of the telegraphic advice a money order form was prepared in the Nagercoil Sub-Post Office and sent to Aramboly for delivery to P.W. 2.

This money order form was received at the Aramboly branch post office and entrusted to the accused by the Post Master, P.W. 4, together with the money for payment thereunder on 8-6-1949. Without delivering the money order, the accused Returned the form and the money in the, evening. As the next day happened to be a holiday P.W. 4 again entrusted the money land the money order form to the accused on 10-6-1949 for payment to P.W. 2; and on that day the accused returned the form with the endorsement that the money order had been paid to P.W. 2. In acknowledgment of the payment of the money order the payee has to sign or put his thumb impression in two places in the money order form. One of those acknowledgments is separated from the money order form & is returned to the remitter, and the other acknowledgment contained in the main portion of the money order form is retained by the Postal Department as a receipt or voucher for the payment of the money order. Ext. E, is the money order form containing the acknowledgment or voucher kept by the Postal Department in regard to the telegraphic money order sent by P.W. 2''s husband on 7-6-1949.

The Prosecution case is that after the entrustment of the money order form and, money to him for payment to P.W. 2 the accused did not pay the money to her and dishonestly misappropriated the amount, and returned the money order form to the Post Office as paid to p. W. 2, forging Ext. E acknowledgment by putting his own thumb impression in the place meant for the signature or thumb impression of the payee and thereby making it appear that the money order has been paid to her.

The accused pleaded not guilty, and it was contended on Jus behalf that he had actually paid the amount to P.W. 2 and obtained her thumb impression in Ext. E and that a false case was foisted on him because of the enmity of the Post Master, P.W. 4.

The main point for decision in this case is whether the accused had paid the amount to P.W. 8 and whether the thumb impression in Ext. E is that of P.W. 2 or the accused.

(His Lordship discussed the evidence and concluded):

The Prosecution has, therefore, clearly established that the Accused did not pay Ext. E money order to P.W. 2 and dishonestly misappropriated the amount of Rs. 25/- entrusted with him for payment of the same and that the acknowledgment of the payee in Ext. E was forged by him in order to make it appear that he had paid the amount to P.W. 2 and she had acknowledged receipt of it. It follows that he has been rightly convicted under Ss. 410, 469, 473 and 480, T.P.C.

With regard to the charge under S. 52, Indian Post Office Act, the learned Sessions Judge says in paragraph 13 of his judgment;

As the accused is a Postal employee and as the sum of Rs. 25/- had been criminally misappropriated by him in his capacity as an employee of the Postal Department he must be deemed to have committed an offence punishable under S. 52 of the Indian Post Office Act VI of 1898.

Section 52 of the Indian Post Office Act reads:

Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secrets, destroys or throws away, any postal article in course of transmission by post or anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine.

In Section 2(i) of the Act it is enacted that the expression ''postal article'' includes a letter, postcard, newspaper, book, pattern or sample packet, parcel and every article or thing transmissible by post. In the present case there is no complaint of theft or dishonest misappropriation of any ''postal article'' that was actually sent by P.W. 2''s husband. The complaint is that the accused has dishonestly mis-appropriated the money that was entrusted to him by the Post Master for payment of the money order sent by P.W. 2''s husband.

The money entrusted to him by the Post Master for payment of the money order cannot be said to constitute a ''postal article'' in course of transmission by post or anything contained therein as contemplated by S. 52, Indian Post Office Act. We therefore, hold that the conviction under S. 52 of the Indian Post Office Act is unsustainable and has to be set aside.

Our finding in respect of this matter does not call for a reduction of the sentence passed upon the accused as the learned Sessions Judge has not awarded any separate sentence for the conviction under S. 52, Indian Post Office Act. The sentence of imprisonment awarded in respect of the other offences cannot be said to be excessive at all. But the accused does not appear to be possessed of any means to pay the fine which he has been asked to pay for the conviction under S. 410, T.P.C.

No useful purpose will therefore be served and unnecessary harassment will be caused by maintaining the sentence of fine. We would, therefore, set aside the sentence of fine and maintain the sentences of imprisonment alone.

In the result the conviction of the accused under Ss. 410, 469, 473 and 480 of the Travancore Penal Code and the sentences of imprisonment passed upon him by the Sessions Judge for the said offences are confirmed. The conviction under S. 52, Indian Post Office Act and the fine of Rs. 200/- to which he has been sentenced for the conviction under S. 410 , T.P.C., are set aside. The bail bonds of the accused are cancelled. He is directed to be taken into custody forthwith.