State of Rajasthan vs Kalu Ram

N.C. Sharma, J.—Kalu Ram, respondent has been acquitted by the Judicial Magistrate No. 1, Bundi by his judgment dated May 9, 1980, u/s 409, IPC and the State of Rajasthan has, by leave filed this appeal against this acquittal.

Kalu Ram was employed as an LDC-cum cashier in the office of the Chief Medical and Health Officer, Bundi during the relevant time As on October 11, 1974, there was a cash balance of Rs, 6,021 06 with Kalu Ram as per the entry Ex. P9 in the cash book. Kalu Ram had joined the office of the Dy. CMHO (Health), Bundi in the forenoon of January 14, 1974 and he remained on this duty upto November 5, 1974. He was placed under suspension by an order of the CMHO dated November 6, 1974. Dr. S.K. Soloman PW 20 was Deputy CMHO, Bundi from February 13, 1974 to April 4, 1974. Dr. R.S. Purohit held this post from April, 1974 to September 6, 1974 Dr. Dr. S.K. Soloman again occupied this post from September 7, 1974 to October 11, 1974 Dr. R.P. Bhatnagar PW 21 joined the post of Dy. CMHO, Bundi on October 11, 1974 and continued on the post till October, 1975 when Dr. R.P. Bhatnagar had joined, the respondent had gone to Jaipur in connection with the budget. He returned from Jaipur on October 27, 1974. Dr. R P. Bhatnagar asked him to complete the charge papers, Cash book was demanded from him, which was produced on October 30, 1974. But it contained entries only upto October 21, 1974 showing cash balance of Rs. 6,021.06, Dr R.P. Bhatnagar wanted to check the cash physically, where upon the respondent left the office. Dr. R.P. Bhatnagar made a report Ex P 9-A in this respect to the Chief Medical & Health Officer, Bundi where in he mentioned that he was surprised to note that there was not a single entry in the cash book, on either side of it, after October 11,1974. He requested the Chief Medical & Health Officer to arrange for the handing over of the charge after showing him physically the cash balance or paid vouchers. Thereafter on, October 31, 1947 the Chief Medical & Health Officer sealed the almirah used by the respondent and, on November 1, 1974, the almirah was opened in the presence of Dr. K. Lal, Dr. S.D. Deval SDM, Bundi, and PC. Jain Account, CMHO, Bundi. No cash was found in the almirah Thereafter the statement of the respondent was recorded on November 1, 1974 and that statement is Ex. P/7. In this statement the respondent made a confession that he did not have any cash balance with him. He had given some amount on loan and the rest has been used by him in domestic purposes. He assured that he would deposit the amount within four- five days. In appears from the receipt dated February 17, 1975, that the respondent deposited the amount of Rs. 5,78158 on that date to make good the embezzled amount. It may be mentioned that in the meantime. Nand Lal Sharma PW 19 who was Assistant Accounts Officer, Internal Check Party, made on inspection and he gave his report Ex.P/3. In this inspection report, Shri Nand Lal Sharma found that a total amount of Rs. 5,786 58 had been embezzled by the respondent. He also pointed out certain financial irregularities in the maintenance of cash book and custody of the cash. On the November 5, 1974, the Chief Medical and Health Officer, Bundi made a First Information Report (Ex P/6) to the Station House Officer, Police Station, Bundi On this report, a case u/s 409, IPC was registered against the respondent After necessary investigation, the police filed a charge-sheet. The Judicial Magistrate charged the respondent u/s 409, IPC and after trial acquitted the respondent of the said charge.

It would be useful to state that the finding which had been arrived at by the Judicial Magistrate. The Judicial Magistrate held that during the relevant time, the respondent was a public servant. He further found that cash book entry Ex. P/9 showed a balance of Rs. 6,021.06 as on October 11, 1974. It was also found that the respondent acted as an LDC cum-cashier and, he was expected, therefore, to possess with him the aforesaid amount either in cash or in paid vouchers. On the question of guilt of the respondent, the Judicial Magistrate from the very start proceeded erroneously as if he was bent upon to acquit the respondent. He mentioned that according to the prosecution, there was embezzlement of Rs. 6,021.06, but Nandlal Sharma (PW/19) has found in his report Ex P/3 that there was an embezzlement of only Rs. 5,786 58. As to the extra judicial confession, as contained in Ex. P/7, the Judicial Magistrate stated that Shri K. Lal and SDM Shri C D. Deval were not examined by the prosecution and, this lent support to the version of the respondent that he signed Ex P/7 under coertion and undue influence. He stated that the extra-judicial confessions is a very week type of evidence and it should not be made the sole basis of conviction unless corroboration was there. On appraisal of the evidence he came to the conclusion that there was no corroboration. He also came to the conclusion to the almirah was not opened in the presence of the respondent. On the basis of these findings he has acquitted the accused-respondent.

Certain facts are not in dispute in the case. The undisputed faces that on October 11, 1974, entry Ex, P/9 in the cash book showed the cash balance of Rs. 6,021.06 with respondent. It is also a fact that when Dr. R P. Bhatnagar joined the post of Dy. CMHO on October 11, 1975 and wanted to inspect the cash book, there was no entry in the book after October 11, 1974. Dr. R P. Bhatnagar immediately made a report Ex. P/9A to the Chief Medical & Health Officer, where in the mentioned that when on October 30, 1974, he asked the respondent to submit the cash book and all other records, he only placed the cash book before him and on his asking for the bill register, cash register, paid vouchers and other documents, the respondent went away from the office without any permission. Thus, Dr. R P. Bhatnagar could not find the placement of placement of the cash by the respondent before him. It was on November 1, 1974 that the respondent was called and he gave a statement written in his own hand completely and which is Ex P/7 on the record. In this statement, the respondent admitted that he was working as cashier in the officer of the Deputy Chief Medical & Health Officer, Bundi. He also stated that the cash amount used to remain with him in single lock and he had utilised that amount in his domestic expenses. He further admitted that he did not have a single paise of the cash balance with him at that time. He had let some money and had used the said for his domestic expenses. He further said that he will deposit the amount in four or five days. This statement Ex. P/7 was made by the respondent in writing in the presence of Dr. R P. Bhatnagar and Dr. S.K. Soloman, apart from K. Lal and SDM It is true that K. Lal and SDM Shri Deval have not been examined, but there is no reason what so ever to doubt the testimony of Dr. S K. Soloman and Dr. Bhatnagar that the respondent gave this statement in writing and no undue influence had been exercised on him. There was no reason no reason not to believe this statement Ex.P/7 made by the respondent.

As to corroboration, if any, needed, it was amply furnished by the fact that after more than three and a half months, the respondent deposited from his pocket the amount of Rs. 5,787.58 vide cash receipt. This shows that the respondent retained the amount which was in balance as per the cash book, from October 11, 1974, till February 17, 1975. The evidence was sufficient to bring home the guilt for the offence under Sec 409, 1PC against the respondent.

The Judicial Magistrate unnecessarily laid emphasis on the fact while according to the prosecution there was embezzlement of Rs. 6,021.06, but only embezzlement of Rs 5,787.58 was found. The Judicial Magistrate did not care to read the inspection report Ex P/3 of Nand Lal Sharma, in which the witness has clearly explained that certain payments had been made by the respondent to Ahmed Noor, Harbans Singh, Shambhu Singh, Radha Mohan Parasar, & Ramesh Kumar Khemchandani amounting in all to Rs. 301.23 from 18th May, 1974 to 3rd October, 1974. The total amount of these payment came to Rs. 301.28. More over, there was a clerical error in the cash book entered on September 2, 1974, in as much as Salary Bill No, 87 dated 26th August. 1974 was prepared for Rs. 1,365.85 and the same amount was drawn from the Treasury, but on account of clerical error instead of Rs 1,065.85, an amount of Rs. 1,605.85 was entered in the cash book. Thus, the amount of Rs 540/- was entered in excess. There was also discrepancy of Re. 030 in totalling. After giving credit to these amount the balance amount was found to have been embezzled by the respondent and the accused could have been convicted for criminal mis-appropriation without specifying the particular amount of cash. An argument also advanced by the learned Counsel for the respondent that as no previous sanction of the State Government had been obtained u/s 197, Cr.PC the Judicial Magistrate could not take cognizance of the offence u/s 409, IPC against the appellant This contention has no force in it. It is clear from Section 197, Cr.P.C that sanction of the Government is necessary for the prosecution of a public servent, if he is a public servant, not removable from his office without the sanction of the Government. It is clear from Ex.P/10 that the appellant had been appointed as LDC by the Director, Medical & Health Services, Rajasthan Jaipur. It cannot, therefore, be said that he was a public servant not removable from his office without the sanction of the State Government. Section 197, Cr. P.C does not apply to public servant to him some lower authority by law or rule or order was empowered to remove. It clearly intends to draw a line between public servant and to provide that only in case of higher ranks, should the sanction of the State Government to their prosecution be necessary. The respondent is not entitled to any protection from prosecution u/s 197(1), CrPC. More over, it has been laid down by their Lordships of the Supreme Court in Om Prakash Gupta Vs. State of U.P., add in Pukhraj Vs. State of Rajasthan and Another, that what is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to an act done purely in a private capacity by a public servant. It has also been laid down that a public servant committing criminal breach of trust does not normally act in his capacity as public servant. Reference may also be made to librepbsion reported in P. Arulswami Vs. The State of Madras, , which was a case u/s 106 of the Madras Village Act, 1950 and which section was similar to Section 197(1) of the Code of Criminal Procedure-It was held that the sanction u/s 106 of the Madras Act was not necessary to prosecute the President of the Panchayat Board for the offence u/s 409, IPC. It is a settled law that Section 197 of the Code is neither to be narrowly construed nor too widely. Too narrow construction may render it otiose, for it is no part of an official duty and never can be to commit an offence It is not the duty which requires examination so much as the act because the official act can be performed in the discharge of the official duty as well as in dereliction of it.

Before parting with this judgment, I may refer to the decision in Madan Lal Vs. State of Punjab, In that case, there was a charge against the accused under Sections 120B, 409 and 477A of the Penal Code. It has been found that certain money had admitted been received by the appellant. The High Court had held that the burden of proving was upon the appellant to show that what be had done with them. Their Lordships of the Supreme Court said that there was no question of the appellant raising any reasonable doubt in view of his admission that he received the said money, the evidence of the District Inspector of Schools and the appellant''s confession that be had in fact misappropriated Rs. 2,500/- and was prepared to deposit that amount. The conviction of the appellant in that case u/s 409, IPC was upheld.

As a result of the foregoing discussion, the appeal of the State deserves to be allowed. I allow this appeal, set aside the judgment of acquittal passed by the Judicial Magistrate No. 1, Bundi. on May 9, 1980 and convict the respondent, Kalu Ram, for the offence u/s 409, IPC and sentence him to rigorous imprisonment for one year. Judicial Magistrate No. 1 Bundi will take immediate steps to take the respondent in custody and will commit him to jail to undergo the sentence awarded by this judgment and will report to this Court about having complied with this judgment.