ALBANO DIAS v. STATE — 1980 DIGILAW 275 (BOM)

JUDGEMENT 1. The appellant stands convicted under Sections 409 and 477A, I.P.C. and also under Section 5(2) r/w. Section 5(1)(c) of the Prevention of Corruption Act. On being found guilty under the aforesaid Sections he has been awarded a sentence of 18 months R. I. with Rs. 500/- as fine or in default, 15 days R. I. for each of the offences punishable under Sections 409 and 477A, I.P.C. and 18 months R. I. and Rupees 4,000/- fine or, in default, three months R. I. for the offence punishable under Section 5(2) r/w. Section 5(1)(c) of the Prevention of Corruption Act. The sentences are to run concurrently. 2. The prosecution case is that in the year 1973 the accused was holding the post of U.D.C. -cum-Cashier in the Central Educational Zone of the Directorate of Education at Panaji. In his above capacity he had to disburse pay and allowances of Primary Teachers. During the year 1973, there was revision of pay scales of primary teachers with effect from 27-5-1970 to November, 1972. During the period from March to June, 1973, he was entrusted amongst others with the sum of Rs. 5,912.75 being the total amount of arrears of pay and allowances of three teachers, Kumari Vijaya Narayan Mordekar, Smt. Vanita, K. Porob and Shri M.J. Banne. But the accused instead of disbursing the amount to the aforesaid teachers dishonestly misappropriated the same and made false entries in the Cash book and in the undisbursed register maintained by him as Cashier showing the said amounts as disbursed to the above mentioned teachers. 3. The accused admits having received the amount to be paid to the three teachers. His defence however is that there was enormous work in his seat. It was not possible to keep proper records. Several. persons were handling cash. There was no proper arrangement for keeping the papers in proper custody. It was likely that some over-payments Were made. It was also likely that the teachers might not have actually received their payments and in their place someone having authority might have taken the payments and proper entries might not have been made. In support of his case the accused examined two witnesses. 4. The prosecution called in as many as twelve witnesses including P.Ws. 2, 3 and 4, the three teachers, besides placing reliance on some documentary evidence. 5. In support of his case the accused examined two witnesses. 4. The prosecution called in as many as twelve witnesses including P.Ws. 2, 3 and 4, the three teachers, besides placing reliance on some documentary evidence. 5. The learned Special Judge formulated the following two points for determination. (1) Whether it is proved that the teachers referred to above did not receive at the relevant time their arrears of pay in spite of the existence of entries in the cash book and in the undisbursed register to show that they had been paid; and (2) Whether it is the accused who has misappropriated the said amounts. On a careful consideration of the evidence the learned Special Judge has found the accused guilty of the offences charged with on the basis of the following facts determined by him : (1) P.Ws. 2, 3 and 4 were not paid the arrears of pay and allowances although entries have been made by him in the Cash book in respect of such payments. (2) It is the accused alone who as cashier was making payments of teachers of Tiswadi, Ponda and Sanguem talukas, being assisted in this work by Shri Camilo Fernades in respect of Tiswadi taluka and by Volvotkar and Kalangutkar regarding Sanguem and Ponda talukas; that the accused alone had with him the key of the safe and of the strong room; that the signatures of the teachers Vijaya Mordekar and Vanita Porob are not found on the acquittance rolls, Exhs. P.43 and P. 44 and the acquittance roll of the teacher M.J. Banne is not traceable although all these teachers have been shown as paid in the cash book and in the undisbursed register by his own handwriting. (3) It was for the accused to prove that entries made by him in the cash book in respect of the payments of the concerned three teachers was supported by receipts issued by them either on a fresh acquittance roll or otherwise. The absence of such receipts on the one hand and on the other side that they were frequently approaching the accused in connection with this payment and that the accused was delaying the same till he was suspended would strengthen the conclusion that the accused did not effect such payment. Exh. P.37 written by the accused admitting shortage of cash to the tune of Rs. Exh. P.37 written by the accused admitting shortage of cash to the tune of Rs. 30,000/- and undertaking to make it good within three days would further support prosecution case. The plea that the letter was obtained from him under pressure of his surety Shri B.K. Paras is not believable. (4) Heavy work in the seat of the accused is not an extenuating circumstance to relieve him of the criminal liability of misappropriation, misconduct, as a public servant and falsification of accounts. 6. Mr. Godiwala, learned advocate for the accused/appellant, has in the first place submitted with reference to the evidence that the seat of the appellant was in a pellmell condition due to the fact that he was over-burdened with work. Registers including cash book were not regularly maintained. It is an admitted fact that he was handing over cash to other clerks to be paid to the teachers. His failure in not naming the clerks to whom he handed over the mounts or in not maintaining the registers is not a serious lacuna in view of the state of affairs obtaining in the office. One is bound to commit such mistakes which may amount to negligence out certainly not misappropriation. In other words his submission is that the charges of misappropriation, etc., have not at all been made out; what has been made out is utter carelessness on the part of the appellant and nothing beyond that. In the circumstances the conviction cannot be allowed to stand. His next submission is that in case the Court is not inclined to agree with his first submission the sentences awarded being severe need to be reduced. 7. As against that the contention of the learned Government Advocate is that the appellant cannot take shelter behind the state of things appearing in his seat and escape criminal liability. On the facts admitted and proved in this case all the three charges have been established beyond reasonable doubt. 8. The following facts are not in dispute :- (1) The accused was holding at the relevant time the post of U. D. C.-cum-Cashier in the Central Educational Zone of the Directorate of Education at Panaji and in that capacity it was his duty to disburse pay and allowances to the primary teachers of Tiswadi, Ponda and, Sanguem talukas. 8. The following facts are not in dispute :- (1) The accused was holding at the relevant time the post of U. D. C.-cum-Cashier in the Central Educational Zone of the Directorate of Education at Panaji and in that capacity it was his duty to disburse pay and allowances to the primary teachers of Tiswadi, Ponda and, Sanguem talukas. Ordinarily the pay and allowances of the teachers of Ponda and Sanguem talukas are to be paid at the respective two places but if they are not paid for some reason or other, they could be paid at Panaji. (2) Due to revision of pay scales of primary teachers with retrospective effect the accused collected amongst others the total sum of Rs. 5,912.75, to be payable to P.Ws. 2, 3 and 4 under cheques issued by the proper Zonal authority. The amounts were duly entered in the cash book as paid under the handwriting of the accused. (3) There was an audit of the seat of the accused and a report to"the effect was submitted to P.W. 1, the then Director of Education, on 30th April, 1976. The report says that several entries in the cash book had not been made and points out other irregularities in the maintenance of accounts. P.W. 1 addressed a letter, Exh. D-2, to Sri Lawande, the then Zonal Officer, P.W. 5, to rectify the mistakes. (4) P.W. 1 had also recommended the suspension of Shri Lawande and one C. Fernandes who succeeded the accused as he was prosecuted for misappropriation. (5) Some L.D. Cs. including P.W. 9 was deputed to assist the accused in his work. (6) The accused has not stated that he had made the payment of the amounts mentioned against each one of the teachers in the cash book to the teachers personally. 9. The point for consideration is therefore whether the accused could be relieved of his criminal liability of misappropriation on the ground that he was over-burdened with work as a result of which he could not make the registers up to date. It is true that in this regard he has been supported by P.W. 5. The accused in his defence has said that the clerk deputed to assist him in the work of a particular taluka used to get the signatures of the teachers on the acquittance rolls and bring the same to him. It is true that in this regard he has been supported by P.W. 5. The accused in his defence has said that the clerk deputed to assist him in the work of a particular taluka used to get the signatures of the teachers on the acquittance rolls and bring the same to him. He then used to give him the necessary amount for making payment to the teachers. After making the payment the clerk used to give him back the acquittance roll which he used to keep on a rack. Sometime the teachers did not come personally to collect the pay but an authority letter was given to somebody to collect it. Signature of the person who collected the money was being taken on the acquittance roll. Assuming that the accused was handing over money to another clerk the responsibility was nevertheless his. In the present case he had not said that he had made over the said three amounts to the clerk to be paid to the respective three teachers specifically. So, considering the position that it was his duty to make the payment and to obtain the signatures of the respective teachers on the acquittance rolls, to make entries in the cash book, and absence of their signatures in the acquittance rolls go to establish beyond reasonable doubt that the accused had not made the payments. The accused, as we have seen above, has admitted that he used to take (sic) the acquittance rolls thereby showing that he was alive to his responsibility of preserving the evidence of payment. 10. Mr. Godiwala has submitted that two important factors in every criminal trial have to be taken into consideration, one is that the accused is entitled to the benefit of every reasonable doubt and the other an off-shoot of the same principle that when an accused person offers a reasonable explanation of his conduct, then even though he cannot prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false. There is no dispute about the validity of his above submission because the same is covered by the decision in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421). There is no dispute about the validity of his above submission because the same is covered by the decision in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421). But the question is whether there is any scope for holding in this case that the prosecution has not proved its case in the light of the evidence led by it and the defence taken. It is not disputed that some clerks were deputed to assist the accused on account of the fact that the work load on his seat was very heavy. There is no evidence to show that these clerks were also appointed as cashiers. It has already been pointed out that it is not the case of the accused that in respect of the three teachers he had made over the amounts to P.W. 9 (who has specifically denied to have taken such amounts for payment of the three teachers) and that on the basis of the acquittance rolls bearing the signatures of three teachers he made the entries in the cash book. The two acquittance rolls filed in this case admittedly do not bear the signatures of the two teachers. The third acquittance roll is however not traceable. I will speak about it a little later. As to the acquittance rolls of Vanita K. Parab and Vijaya D. Mordekar, Exhs. P-43 and P-44, respectively, there is no doubt that they are without the signatures of the recipients. If these were the two acquittance rolls on the basis of which the accused made the entries in the cash book there is no doubt that his statement that he made entries on the basis of the signatures appearing on the acquittance rolls is bound to be false. There is also no evidence that the aforesaid two acquittance rolls are forged and have been introduced into the case subsequently by the prosecution. There should not therefore be any doubt that Vanita K. Parab and Vijaya D. Mordekar had not acknowleded receipt of the amounts of allowances mentioned against their names in the two acquittance rolls. The plea of the accused that he had handed over these amounts to Camilo seems to be false and fabricated for if he had paid those amounts to them he would have insisted upon the signatures of the recipients on the acquittance rolls being taken. The plea of the accused that he had handed over these amounts to Camilo seems to be false and fabricated for if he had paid those amounts to them he would have insisted upon the signatures of the recipients on the acquittance rolls being taken. Conclusion is therefore bound to follow that the accused did not make payment of Rs. 1,945.10 and Rs. 2026.70 to Vanita K. Parab and Vijaya D. Mordekar respectively. In addition to the above fact, the claim of the aforesaid two witnesses that they have not received the payment appears to be believable and well established. So in respect of the aforesaid said two witnesses, the accused had not only not made the payment of the amounts mentioned against their names in the acquittance rolls but also went to the extent of writing falsely in the cash book that the amounts had been paid. 11. As to Mahadev Bamne, the acquittance roll has not been traced. It is true that Bamne has complained that he had not received his arrears. The absence of acquittance roll may give rise to some doubt and therefore I am prepared to give its benefit to the accused. But in respect of the other two P.Ws., that is P.Ws. 3 and 4, I have no manner of doubt that he misappropriated the amounts and also to cover up the misappropriation made false entries in the cash book. In this view of the matter, there is no scope to apply the principle of Aher Raja Khima's case, (1956 Cri LJ 421) (SC) to the present case. 12. I therefore find no difficulty in coming to the conclusion that the defence plea is unacceptable. The charges under Sections. 409 and 477A, I.P.C. as respects the amounts of Rs. 1,945.10 and Rs. 2,026.70 as well established. There is however some doubt as to if there was misappropriation in respect of the arrears of allowance of Rs. 1,940.95, of Shri Bamne. 13. Another charge with which the accused has been further charged on this score is that while functioning as public servant, namely, U. D. C-cum-Cashier in the Central Educational Zone of the Directorate of Education at Panaji, he had fraudulently misappropriated the sum of Rs. 5,912.75, which sum was a total sum of arrears and allowances of the above mentioned teachers (P.Ws. 5,912.75, which sum was a total sum of arrears and allowances of the above mentioned teachers (P.Ws. 2, 3 and 4) so entrusted to him for disbursement and converted the said amount for his own use by not disbursing the amount to the above named teachers and thereby committed criminal misconduct. It is argued by Mr. Godiwala that in order to find the accused guilty under the Prevention of Corruption Act there has to be an unerring certainty that the accused acted with a dishonest motive. The circumstances must be of a conclusive nature and tendency. There is no doubt about the correctness of the proposition but the question is whether the principle is at all applicable to the facts of the present case. Once it is found that the. accused was entrusted with certain amounts for disbursement which he had not disbursed and has falsely made entries as paid, there is an unerring certainty that he converted the amount for his own use. In other words he misappropriated the amounts with a dishonest motive which is clear from the false entries in the cash book. In this view of the matter I am also clear in my mind that the offence of criminal misconduct as envisaged under the Prevention of Corruption Act has also been made out in respect of allowances payable to P.Ws. 3 and 4 only. 14. The learned advocate, Shri Godiwala, has then submitted that the evidence merely establishes utter carelessness on the part of the accused but no dishonest motive and for negligence and carelessness no criminal liability could be fastened on him. I am not impressed with this argument because, in my view, it is not a case of mere negligence or carelessness but a deliberate, act on the part of the accused to commit misappropriation. 15. The last submission of Mr. Godiwala is regarding the sentence. According to him having regard to the facts and circumstances of the case, namely that the accused was overburdened with work some leniency should be shown to him in the matter of sentence. 16. Having regard to the fact that the accused was in fact overburdened and that the charge of misappropriation in respect of Rs. 1,940.95 has riot been made out the sentence requires modification. Instead of sentencing the accused to 18 months' R. I. with a fine of Rs. 16. Having regard to the fact that the accused was in fact overburdened and that the charge of misappropriation in respect of Rs. 1,940.95 has riot been made out the sentence requires modification. Instead of sentencing the accused to 18 months' R. I. with a fine of Rs. 500/-, in default 15 days' R. I. for each of the offences under Sections 409 and 477A, I.P.C. and 18 months and Rs. 4,000/- fine in default 3 months' R. I., for the offence punishable under Section 5(2) r/w. Section 5(1)(c) of the Prevention of Corruption Act, I would say that the ends of justice would be met if the accused is sentenced to one year R. I. with a fine of Rs. 200/-, in default 15 days' R. I. for each of the offences under Sections 409 and 477A, I.P.C. and one year R. I. and a fine of Rs. 3,800/- in default two months' R. I. for the offence under Section 5(2) r/w. Section 5(1)(c) of the Prevention of Corruption Act. The sentences are to run concurrently. Bail Bond, if any, is cancelled and the accused may be taken to custody to serve the sentence. 17. The appeal is accordingly disposed of. Order accordingly.