Judgment :- 1. The petitioner was the first accused in C.C.114 of 1960 on the file of the Sub Divisional Magistrate, Malappuram. He was tried along with another for an offence punishable under S.409, I.P.C. The case against him was that in his capacity as the Secretary of the Kottakkal Co-operative Urban Bank he was entrusted with seven cheques on different dates amounting in all to Rs. 90,000/-, that after encashing and receiving the amount he failed to credit the same in the account books of the Bank except a sum of Rs. 10,000/- and that he misappropriated the balance amount of Rs. 80,000/-. Accused denied entrustment and misappropriation. The learned Magistrate on a consideration of the evidence found that there was entrustment, that the accused failed to credit the amount and committed criminal breach of trust in respect of the same. The second accused, the accountant, who was charged for abetment was acquitted on the ground that there was no proof of abetment. On appeal the learned Additional Sessions Judge of Kozhikode on a reappraisal of the evidence, confirmed the conviction and the sentence. The petitioner has, therefore come up in revision. 2. Before coming to the merits of the case, I will first deal with an objection taken by the learned counsel for the accused regarding the trial of the case. It is contended that there has been a violation of the provisions of S.353, 357 and 364 of the Criminal Procedure Code. S.353 enacts that evidence should be taken in the presence of the accused, or if personal appearance is exempted in the presence of his pleader. S.356 says that the evidence of each witness shall be taken down in writing either by the Magistrate or Sessions Judge with his own hand or from his dictation in open court. S.357 says that the Magistrate or judge himself should take down the deposition unless he records reasons for his inability to do so; and S.364 deals with the examination of the accused. What is contended is that the witnesses were examined only once and their deposition recorded in one case was conveniently written up in the other cases by the clerk and signatures of the witnesses were obtained. What is contended is that the witnesses were examined only once and their deposition recorded in one case was conveniently written up in the other cases by the clerk and signatures of the witnesses were obtained. The procedure of recording evidence in one case and using copies of the same with necessary modifications in the other cases as the deposition of the witnesses in the case is certainly not warranted by the provisions of the Code of Criminal Procedure, even though that procedure would have been assented to by the advocate who had appeared for the accused and the Assistant Public Prosecutor who had conducted the case oh behalf of the State. Every separate trial must proceed separately with the result that every proceeding including the recording of evidence in each trial should be separate. The question now is whether this wrong procedure adopted by the trial court has vitiated the entire trial irrespective of whether prejudice has been caused to the accused or hot. A similar question came up for consideration in the Supreme Court in the case in Banwari v. State of U.P. (A.I.R. 1962 S.C.1198), and their Lordships stated that such a defect does not vitiate the entire trial in view of the provisions of S.537 of the Code. 3. Reference may also be made to the decision in Dulal Chandra Bhar v. State of West Bengal (1963) 1 Cr. L. J. 521). There were three cases tried by the Presidency Magistrate. Deposition was taken only in one case and in the other cases there were copies of the deposition but without the signature of the witness. It was contended that the trial was vitiated. Relying on the case in Abdul Rahman v. Emperor (A.I.R.1927 P.C. 44), it was held that non-compliance with the provisions contained in S.356 and 360 would not affect the legality of the trial & the defect, if any, cannot cause any actual or possible failure of justice and the irregularity is curable under S.535 and 537, Cr. P. C. It may also be noted that in this case no objection was taken before the Magistrate with regard to the procedure adopted by the Magistrate and, in fact, the defence advocate would have welcomed the said procedure and it must have been done with his full concurrence. This contention, therefore, fails. 4. P. C. It may also be noted that in this case no objection was taken before the Magistrate with regard to the procedure adopted by the Magistrate and, in fact, the defence advocate would have welcomed the said procedure and it must have been done with his full concurrence. This contention, therefore, fails. 4. Another argument raised was that prejudice has been caused by the prosecution adducing evidence of other acts of misappropriation. S.15 of the Evidence Act reads as follows: "When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant." Under S.15 of the Evidence Act the prosecution may adduce evidence of criminal acts other than those charged without waiting for the accused to set up the specific defence calling for rebuttal and defence of similar acts to show intention. When the act in question forms part of a series of similar occurrence, evidence of similar facts is admissible to prove intention or knowledge of the person and to rebut the defence of accident, mistake, etc. The principle on which evidence of similar acts is admissible is not to show that because the accused has committed one crime, he would, therefore, be likely to commit another, but to establish the animus of the act, and rebut by anticipation, the defence of ignorance, accident, mistake or other innocent states of mind. In Srinivasmall v. Emperor (A.I.R.1947 P.C.135), on a charge of having sold an article at a price exceeding the controlled price and of abetment, evidence of similar sales to other persons shortly before or after the period covered by the charge was held admissible under S.14 to prove the intention. Archbold in his Criminal Pleadings (30th Ed. p. 366) has stated that: "Where the gist of the alleged offence is fraud, intent is material, and evidence of other similar offence is admissible to prove intent." This matter has been considered in a recent decision in Gopinathan v. The State of Kerala (1963)2 Cr. L.J. 92). It, therefore, follows that the evidence regarding the non-entry in the bank's accounts of other items by the accused is not inadmissible. L.J. 92). It, therefore, follows that the evidence regarding the non-entry in the bank's accounts of other items by the accused is not inadmissible. It would throw a flood of light on the working of the mind of the first accused and would falsify the case put forward by him that the omission to enter was not because monies were misappropriated, but a pure accidental or inadvertent omission. No prejudice has, therefore, been caused by the admission of this evidence. 5. The next question that would arise is whether the prosecution has proved that the first accused was the secretary and in such capacity whether the amounts covered by the different cheques were entrusted to him. Even though the accused has denied that he was the secretary, courts below have carefully considered this question and concurrently found that he was, in fact, doing the duties of the secretary and was in charge of the cash. Ext. P-10 the service book, Ext. P-13 the acquittance roll and Exts. P-18 and P-19 attendance registers all show that the accused was actually the secretary of the Bank. He has signed the Day book and the other records kept in the bank as Secretary. The cheques issued in favour of the bank were endorsed by the accused in his capacity as secretary. In the face of all this, it is idle to contend that he was not the secretary of the bank. 6. The case of the accused that whatever monies received by him were handed over to the President is also not true. This is sought to be proved by some answers obtained from Pw. 26, but he is not an employee of the bank. No questions were asked to Pw. 10 or to Pw. 19, who are employees of the bank. Not a scrap of paper has been produced which would bear out the suggestion that the president Sri. Madhava Warrier had anything to do with the cash transactions of the bank. If really the president was the person who was in charge and control of the cash then certainly it would have been the president who would have signed on the back of the cheques and collected the money. Out of the cheques Exts. P-23 to P-29, Exts. P-27 and P-28 were cashed by Pw. 26 and he has sworn that he had handed over the amount to the first accused. Out of the cheques Exts. P-23 to P-29, Exts. P-27 and P-28 were cashed by Pw. 26 and he has sworn that he had handed over the amount to the first accused. Similarly the cheque Ext. P-29 was cashed by Pw. 22 and he has sworn that the amount covered by the cheque was actually handed over to the first accused. The above witnesses were not even cross-examined on this point. The other cheques were actually cashed by the accused himself and he had received the money. The courts below were, therefore, perfectly justified in finding that the amount of Rs. 90,000/- covered by these cheques had actually been entrusted to the accused. 7. Entrustment being found, the next question is whether the accused is proved to have misappropriated the money. For a conviction under S.409 not only entrustment, but dishonest misappropriation has also to be made out by the prosecution. In the case in Krishna Kumar v. Union of India (A.I.R.1959 S.C.1390) it was stated: "It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated as strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss, then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S.106 of the Evidence Act to throw the onus on him to prove his innocence." 8. Of course, the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S.106 of the Evidence Act to throw the onus on him to prove his innocence." 8. To the same effect is the decision in J.M. Desai v. State of Bombay (A.I.R.1960 S.C. 889). It is stated there: "Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made." 9. There has been no accounting by the accused of the amounts received by him. Cheques issued in favour of the hank have been endorsed over and the money covered by the cheques are proved to have been received by the accused. He makes entries in the pass book of the customers but fails to have the amount credited in the cash book and other books of the bank and does not explain what he did with the amounts. If his case were true that the monies were passed on to the President he would certainly have got it entered in the books of the bank. If his case were true that the monies were passed on to the President he would certainly have got it entered in the books of the bank. The failure to do so, would lead only to one conclusion that he had misappropriated the amount, no matter whether the other employees of the bank helped him in his nefarious activities or were parties to the fraud being hushed up. The argument that no complaint was made by the Aryavaidiasala who had issued the cheques can mean nothing, because so long as these payments have been duly entered in their pass books they can have no grievance. Similarly, nothing turns on the fact that there were yearly audits in the bank and the fraud was not detected. The evidence of Pw. 4 that he did not find any shortage in the cash balance of the bank also does not help the accused as the cash balance is verified only with reference to the entries in the books of the bank & cross checking of the bank's accounts with the accounts of the various customers is not generally done at the time of audit. The argument that failure to enter these large sums of money made by the Aryavaidiasala might have been purely by accident or they would have been innocent omissions also cannot stand scrutiny. In the first place there is no such case for the accused. If really they were only delayed entries it was open to the accused to point out when subsequently he made the entries in the books of the Urban Bank. Even assuming that these amounts have been at some time or other given credit to in the bank's accounts, yet the accused would be guilty of at least temporary misappropriation of the amounts. 10. Learned counsel made a submission that there is no evidence that the accused was in embarrassed circumstances and pointed out the evidence of Pw. 5 regarding the affluence of the accused. Pw. 5 himself has sworn that the accused was running a business and for ought we know these amounts would have been utilised to tide over the monetary difficulties of the business. Thus on a careful and anxious consideration of the entire evidence, I am unable to agree with the learned counsel that the offence of criminal breach of trust has not been made out. Thus on a careful and anxious consideration of the entire evidence, I am unable to agree with the learned counsel that the offence of criminal breach of trust has not been made out. The findings entered by the courts below that there was entrustment and dishonest misappropriation is, therefore, well justified and the conviction has only to be confirmed. Regarding the sentence I am not prepared to say that the sentence of rigorous imprisonment for two years is, in any way, excessive. Sentence of fine is uncalled for and it is set aside. In the result, the conviction under S.409, I.P.C., is confirmed, but the sentence is reduced to one of rigorous imprisonment for two years.