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1970 DIGILAW 129 (ORI)

Bansidhar Mati v. State

1970-06-22

S.ACHARYA

body1970
Judgement ACHARYA, J. :- The petitioner stands convicted under Section 409, I.P.C. and has been sentenced thereunder to undergo R. I. for two months and to pay a fine of Rs. 25/- and in default of payment of the fine to undergo R. L for fifteen days more. 2. The petitioner was a Tax Collector of the Dhenkanal Municipality in the year 1961-62. The prosecution case is that the petitioner having collected a sum of Rs. 25/- on 5-11-61 from Birabar Debata (P.W. 7) towards renewal fee of his hotel licence for the year 1961-62, did not show the said collection in the accounts of the Municipality till 28-11-61, and so committed criminal breach of trust in respect of the said amount for that period. Co-accused Prafulla who was convicted by the trial court for abetting the offence of the petitioner was acquitted by the court of appeal. 3. The findings of the court below on appreciation of the oral and documentary evidence on record are as follows:- (i) "The prosecution has proved it through the evidence of P.W. 7 and it is also admitted by appellant Banshidhar that he had received Rs. 25/- from P.W. 7 on 5-11-61 and he had granted the receipt bearing sl. No. 382 marked Ext. 3." (ii) "The carbon copy counterfoil is Ext. 4. That is also admitted by appellant Banshidhar. The carbon copy tallies in every detail with the original Ext. 3 except that at the date portion which is towards the end of the receipt in place of 5' as appearing in Ext. 3, the original, the figure is 28' in the carbon copy, Ext. 4. There cannot be any doubt that Ext. 4 was the carbon copy of Ext. 3 and the two documents were prepared at the same sitting by one writing and by the same person." (iii) "The appellant Banshidhar also admits that Ext. 3 in his handwriting and he has put the date as 28-11-61 in Ext. 4, the counterfoil." 4. On the aforesaid findings the court below rightly concluded that it was proved beyond doubt that the petitioner realised Rs. 25/- from P.W. 7 on 5-11-61, and granted the receipt Ext. 3 to P.W. 7 showing therein the date of realisation to be 5-11-61, and he (the petitioner) forged and manufactured the counterfoil Ext. 4, the counterfoil." 4. On the aforesaid findings the court below rightly concluded that it was proved beyond doubt that the petitioner realised Rs. 25/- from P.W. 7 on 5-11-61, and granted the receipt Ext. 3 to P.W. 7 showing therein the date of realisation to be 5-11-61, and he (the petitioner) forged and manufactured the counterfoil Ext. 4, and the Daily Collection Register to show as if the said amount was collected on 28-11-61 and thus misappropriated and/or dishonestly misutilised the said amount for that period. It is mentioned in the impugned judgment that the learned counsel for the petitioner in the appellate court conceded that on the facts and circumstances of the case the conviction of the petitioner under Section 409, I.P.C. was justified and proper, but he pleaded for a lighter sentence as the amount involved was a petty one, the misappropriation was only for a temporary period, and the petitioner was a young man. On the above findings, the court below upheld the conviction of the petitioner under Section 409. I.P.C., but on a consideration of the counsel's above submission for a lighter sentence, reduced the sentence of six months' rigorpus imprisonment and a fine of Rs. 100/-imposed by the trial Court to a sentence only of two months R. I. and a fine of Rs. 25/-only, and in default thereof to undergo R. I. for fifteen days more. 5. Mrs. Patnaik, the learned counsel for the petitioner, has not been able to successfully assail the above findings. As stated above, in the court below the learned counsel for the petitioner conceded that the conviction of the petitioner for the offence under Section 409, I.P.C. was well founded. I also do not find anything to interfere with the above concurrent findings of the courts below. The conviction of the petitioner under Section 409, I.P.C. is therefore well founded. 6. The Court below considered the question of sentence, and reduced the sentence imposed by the trial court to the extent mentioned above. On the facts and circumstances of this case there is no justification to reduce the sentence, now imposed, any further. The conviction of the petitioner under Section 409, I.P.C. is therefore well founded. 6. The Court below considered the question of sentence, and reduced the sentence imposed by the trial court to the extent mentioned above. On the facts and circumstances of this case there is no justification to reduce the sentence, now imposed, any further. There is nothing illegal in the order passed by the court below that the substantive sentence of imprisonment passed in this case will run concurrently with the substantive sentence of imprisonment passed earlier against the petitioner in the other case, being the subject-matter of Criminal Revision No. 108 of 1968, disposed of today by me. In this connection the decisions reported in AIR 1961 Pat 138 , and AIR 1965 Pat 178 may be seen. There is no merit in this revision which is accordingly dismissed.