JUDGMENT P.N. Goel, J. 1. Ram Bharosey Lal appellant has been convicted and sentenced under section 409 of the Indian Penal Code to undergo R. I. for three years and to pay a fine of Rs. 3000/-. 2. Facts leading to the conviction of the appellant may be stated at some length. There is co-operative union at Khandar within police station Jalalabad, district Shahjahanpur. This union is functioning from before the year 1962. Dal Singh (deceased) was supervisor or secretary of the Union. Bhagwat Singh (PW 11) was accountant of the Union. Ram Bharosey Lal appellant was undisputedly Kamdar of the Union. By resolution dated 25-12-1961 Ram Bharosey Lal was appointed treasurer also of the Union. There were co-operative societies in villages Chamardubi and Chandpur Chhatarpatti. Chhotey Singh (PW 1) was Sarpanch of Chamarduhi Socieity. Babu Singh (PW 22), S/o Chhotey Singh (PW 1) was accountant of the society. Bodhraj Singh (PW 2) was Sarpanch of Co-operative Society Chhatarpatti. Barey Lal, brother of Chhotey Lal (PW 6) was accountant of this society. Bareylal was illiterate. Therefore, Chhotey Lal used to do writing work on his behalf,. Lal Udaibir Singh (PW 7) was cashier of the society. Beth these co-operative societies were attached affiliated to cooperative union Khandar. There was a seed store of the co-operative union Khandar. Ram Bharosey Lal appellant used to remain at the seed store. In the month of August 1962 Chhotey Lal, sarpanch of Co-operative-society Chamarduhi received an information that a sum of Rs. 3,220/- be deposited in the co-operative union Khandar. Chhotey Singh collected money from the village people. He deposited Rs, 1, 420/- on 18-8-1962 and obtained receipt from Dal Singh supervisor. On 19-8-1962 he paid Rs. 1800/- to the appellant and obtained receipt from him Ex. Ka. 5. At the end of this receipt there is signature initial of Dal Singh. In the month of August 1962 Bodh Raj Singh sarpanch of co-operative society Chhatarpatti also received information to deposit Rs. 892/- in the cooperative union Khandar for the purpose of a brick-kiln. He collected money from the village people. On 19-8-1962 he handed over a sum of Rs. 892/- to the appellant and obtained. receipt Ex. Ka. 1. In the month of August 1962 Bodh Raj Singh sarpanch of co-operative society Chhatarpatti also received information to deposit Rs. 892/- in the cooperative union Khandar for the purpose of a brick-kiln. He collected money from the village people. On 19-8-1962 he handed over a sum of Rs. 892/- to the appellant and obtained. receipt Ex. Ka. 1. At the end of this receipt there is signature initial of Dal Singh, it is alleged that the appellant did not deposit the two amounts in the account of the co-operative union Khandar and misappropriated the said amounts. 3. The appellants did not admit the allegation of the prosecution. His defence was that Chhotey Singh, Bodh Raj Singh and others were Thakurs by caste, that Dal Singh supervisor was also Thakur by caste, that Dal Singh used to embezzle the money, that after the death of Dal Singh he had been falsely implicated by the Thakurs. He asserted that he had not issued any receipt nor he had received any money as alleged. 4. The prosecution examined Chhotey Singh, Bhole, Bir Sahai, Bhagwat Singh and Babu Singh (P. Ws. 1, 3, 4, 11 and 22) to prove payment of Rs. 1,800/- on 19-8-1962 to the appellant. Babu Singh proved relevant entries in the books of Cbamarduhi Cooperative Society. The prosecution further examined Bodh Raj Singh, Chhotey Lal and Lal Udaibir Singh to [prove payment of Rs. 892/- to the appellant on 19-8-1962. Chhotey Lal further proved relevant entries in the books of co-operative Society Chandpur Chhatarpatti. The prosecution then examined Ram Dutt Singh (P. W. 26) II Officer Crime Branch C. I. D. Bareilly, who investigated into the case. He took sample writings of the appellant. Kedar Nath Prasad (P. W. 3) hand writing expert compared the sample hand writing of the appellant with the hand writing and signatures/initials on the receipts Exs. Ka. 5 and Ka. 1 and expressed the opinion that they were written by one and she same person. He also compared the signature of Dal Singh with the signature on these two receipts and expressed the opinion that they were not in the hand writing of the same person. The prosecution also examined some village people who had contributed the two amounts in question. The prosecution also examined Mohammad Shoeb (P. W. 23), Assistant Registrar Co-operative Societies. He proved the duties of the Supervisor and Kamdar. The prosecution also examined some village people who had contributed the two amounts in question. The prosecution also examined Mohammad Shoeb (P. W. 23), Assistant Registrar Co-operative Societies. He proved the duties of the Supervisor and Kamdar. He found that the two amounts in question were not deposited in the account of the co-perative union Khandar. Therefore, he gave report of embezzlement to the District Magistrate and District Planning Officer. On an examination of the entire material before him the learned II Additional Sessions Judge Shahjahanpur [held that the two amounts were entrusted to the appellant, that he had not deposited the said amounts in the account of the co-operative union and that he had misappropriated the said amounts. Consequently the appellant was convicted. 5. Learned counsel for the parties have been heard and record has been examined with their assistance. 6. The appellant's counsels could not show that the findings of the learned trial judge that the two amounts were given to the appellant by Chhotey Singh and Bodh Raj Singh on 19-8-1962, was in any way incorrect or erroneous. He conceded that the prosecution evidence did go to prove that the two amounts were actually given to the appellant on 19-8-1962 by Chhotey Singh and Bodh Raj Singh. It may be indicated here that Dal Singh supervisor remained ill from June, 1962 to November, 1962, that he was suffering form abdominal. T. B., that he used to get-himself treated at Shahjakanpur and that he died on 6-11-1962. Surendra Nath Vaid (PW 14) treated him form 3-8-1962 to 15-9-1962. He proved his 3 medical certificates Exs. Ka. 9 to Kt. 11 Then Dr. Brijnath Bahal (PW 15) treated him from 16-9-1962 to 3-11-1962. He proved his 2 certificates Exs. Ka. 12 and Ka. 13 which were counter-signed by Dr. Chatterjee. Civil Surgeon Shahjahanpur. In connection with his treatment Dal Singh mostly used to remain at Shahjahanpur. It is in evidence that on 19-8-1962 Dal Singh was not at Khandar. It is also in evidence that in the absence of Dal Singh, Ram Bharosey Lal appellant, used to act in his place. It may further be indicated here that the duties of a supervisor were to keep accounts of the union, to realise money for the union and to give receipt (vide statement of Mohammed Shoeb (PW 23)). It is also in evidence that in the absence of Dal Singh, Ram Bharosey Lal appellant, used to act in his place. It may further be indicated here that the duties of a supervisor were to keep accounts of the union, to realise money for the union and to give receipt (vide statement of Mohammed Shoeb (PW 23)). Duties of Kamdar were to do work of the seed store and to help the supervisor. It was not the duty of Kamdar to obtain money and to give receipt. 7. The learned counsel for the appellant has urged that the appellant was not a public servant as defined in section 21 of the IPC and that in the present case he was not liable to be convicted under section 409 IPC and that for the misappropriation In question he could only be convicted under section 403 IPC. 8. The prosecution has made an attempt to prove that the appellant had sent information to Chhotey Singh and Bodh Raj Singh to deposit Rs. 3, 220/-and Rs. 892/-. On this point the evidence of both these witnesses is quite vague. Chhotey Singh stated that he was informed through Babu Singh (P. W. 22). But Babu Singh has not said a word about it. Bodh Raj Singh has not disclosed the names of the persons through whom Ram Bharosey Lal sent information to deposit Rs. 892/-. There is no evidence worth the name that the person through whom the appellant called upon Bodh Raj Singh and Chhotey Singh to deposit the amount have died. In this way it is apparent that this attempt of the prosecution was not successful. It will further be noticed that a day before i. e. 19-8-1962 Dal Singh himself had taken Rs. 1,420/-from Chhotey Lal. However, as said above, the prosecution has proved that on 19-8-1962 the two amounts in question were taken by the appellant. The prosecution has then attempted to show that in the absence of Dal Singh the appellant used to act as supervisor. Chhotey Singh and other prosecution witnesses have stated to the same effect. 1,420/-from Chhotey Lal. However, as said above, the prosecution has proved that on 19-8-1962 the two amounts in question were taken by the appellant. The prosecution has then attempted to show that in the absence of Dal Singh the appellant used to act as supervisor. Chhotey Singh and other prosecution witnesses have stated to the same effect. Mohammad Shoeb Assistant Registrar, has stated that in the absence of the supervisor Kamdar used to look after his work, that Dal Singh was keeping indifferent health from the end of July 1962, that he remained on leave, that in his absence the appellant used to look after his work, that Dal Singh applied for leave from 3-8-1962 to 15-9-1962, that his leave applications were before him, that he used to grant casual leave to the supervisor and that Deputy Registrar used to grant earned leave to the supervisor. In cross-examination he stated that he passed orders on the leave application of Dal Singh because he used to take short leaves, that on account of Ms taking short leaves no arrangement was made for his work and that the Kamdar used to look after his work on account of tradition and practice, that there wag no need for a specific order in this respect. He further stated that if Kamdar realises money then he should give receipt. Pay of Kamdar is Rs. 45/- only. Mohammad Shoeb does not know if security of Kamdar is Rs. 100/-only or not. Pay of supervisor is Rs. 100/-. He further stated that he did not know if Ram Bharosey was ever given charge of the post of supervisor or charge of the post of supervisor was ever taken from him. In August 3962 orders of transfer of Dal Singh were passed on 3-8-1962 and in his place Ram Autar Srivastava (P. W. 28) was appointed supervisor. Statement of Mohammad Shoeb clearly shows that the appellant did not become supervisor in the absence of Dal Singh and that the appellant was simply looking after his work in his absence. It is thus evident that Ram Bharosey Lal was not a supervisor. Therefore, it was not his duty to realise or obtain money from the co-operative societies. But it appears that in the absence of Dal Singh he used to take money from the sarpanch of the co-operative societies. It is thus evident that Ram Bharosey Lal was not a supervisor. Therefore, it was not his duty to realise or obtain money from the co-operative societies. But it appears that in the absence of Dal Singh he used to take money from the sarpanch of the co-operative societies. It is, therefore, obvious that he used to take the money as a Kamdar and not as a supervisor. This conclusion is confirmed by a conspicuous fact appearing on the record. The appellant issued receipt Exs. Ka. 5 and Ka 1 to Chhotey Singh and Boodh Raj Singh in respect of the amounts in question. On these receipts Ram Bharosey Lal did not sign. But he made initials or signature of Dal Singh. It means that he wanted to show that the money had been taken by him on behalf of Dal Singh, It may be indicated here that Ram Autar Srivastava (P. W. 28) took over charge as supervisor of co-operative union Khandar at the end of September 1962 or in the beginning of October 1962. At that time he did not find cash book of the Union relating to the period from 1st July, 1962. He opened new cash book from 22-10-1962. It appears that Dal Singh and Ram Bharosey did not make entries of the amounts received during the [period 1-7-1962 to the date of taking over charge by Ram Autar Srivastava. 9. Sec. 409 punishes a public servant who embezzles the money. SEC. 403 punishes the person who embezzles or misappropriates any moveable property including money. The law expects a public servant to be honest in the discharge of his duties. Therefore, SEC. 409 provides severe punishment to a public servant who commits breach of trust or misappropriates any money of his department. 10. Sec. 21 of the IPO enumerates the person who can be considered "public servant." Clause 10 of this section is applicable to the present case. The clause lays down that every officer whose duty ill is, as such officer, to take, receive, keep or expend any property......................... It is apparent from this clause that it should be the duty of the officer to receive any property including money. As a Kamdar it was not duty of the appellant to receive money. To receive money from the cooperative societies was the duty of the supervisor. It is apparent from this clause that it should be the duty of the officer to receive any property including money. As a Kamdar it was not duty of the appellant to receive money. To receive money from the cooperative societies was the duty of the supervisor. Therefore, in the instant case the appellant is not a public servant. It is supervisor of the co-operative union who is a public servant. Explanation 2 of Sec. 31 says that wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. In the present case the appellant was simply looking after the work of the supervisor. He was not occupying or possessing the office of supervisor. Therefore, this explanation does not help the prosecution. 11. The learned counsel for the appellant has referred to the following cases: (1) Kallcharan v State, 1973 ACC 4013. In this case the appellant was a sarpanch of the Sadhan Sahkari Samiti. He had taken the responsibility of depositing certain sum of money realised by him as sarpanch, but the did not deposit the same. The prosecution could not show that as a sarpanch it was his duty/responsibility to realise money. In this way the prosecution had not proved that he was a public servant. Therefore, the appellant was convicted under Sec. 403 IPO instead of Sec. 406 IPC. (2) Poor an Singh v. State of U. P., 1957 ACC 55 (SC). The appellant was a sarpanch of the primary Co-operative Society and was entrusted with Rs. 2,800/- by the District Co-operative Bank Bijnor for distribution to some members of the society as loan. The appellant showed fictitious disbursement of the money to three persons. It was held that there was no legal entrustment and as such he was liable to be convicted under section 403 because he was not a public servant. (3) Elahi Bux Khan v. The State, AIR 1955 Calcutta 482. In this case it was held that a person who was temporarily carrying on the duties of the branch post master purely as a nominee of the latter without any authority being given by the Government could not be regarded as a public servant." 12. The above cases supported the contention of the appellant's counsel. In this case it was held that a person who was temporarily carrying on the duties of the branch post master purely as a nominee of the latter without any authority being given by the Government could not be regarded as a public servant." 12. The above cases supported the contention of the appellant's counsel. On the other side the learned counsel for the State has referred to the following cases:- (1) The Superintendent and Remembrancer of Legal Affairs, West Bengal v. S.K. Roy, AIR 1974 SC 795. In this case the respondent was Superintendent of Pak Unit of Hindustan Co-operative Life Insurance Society in Calcutta and, therefore, he was a public servant. He represented to the Pakisthan Policy Holders that they could make their payments in Calcutta to him. On account of this representation the policy holders gave money to him. He issued receipts in his official capacity. In fact Pakistani policy holders could not have made any transfer of their policies without producing certificates of migration and obtaining permission both of Indian and Pakistan Governments. It was held that the respondent mis-used his official capacity and under its garb and colour of his office obtained payments and issued receipts. The policy holders did not know the correct position and would not have made payments to the respondents but for the possession and use by him of his official capacity. There was sufficient ostensible nexus between the actual official capacity and the conduct of the respondent to hold that the entrustment or dominion was obtained by the respondents over monies of policy-holders in his official capacity or as a public servant. Therefore the respondent was liable to be punished u/Sec. 409 IPC. 13. Facts of this case are quite distinct. Appellant Ram Bharosey Lal was not a public servant. As a Kamdar he took money in question in the temporary absence of the supervisor. He did not purport to take the money as supervisor. (2) Som Nath Puri v. State of Rajasthan, AIR 1972 SC 1490 . In this case the appellant was a Traffic Assistant in the office of the Airlines Corporation at Jaipur. It was his duty to make reservations of the passengers and issue tickets. He was a public servant. In this case there was no issue whether the appellant was or was not a public servant. In this case the appellant was a Traffic Assistant in the office of the Airlines Corporation at Jaipur. It was his duty to make reservations of the passengers and issue tickets. He was a public servant. In this case there was no issue whether the appellant was or was not a public servant. Therefore, this case is of no help to the prosecution. 14. The learned trial Judge has observed that as the appellant was a treasurer or cashier of the co-operative union, he could receive money. This observation is not correct. It is the positive case of the prosecution that the supervisor only could receive money from the co-operative societies. The learned trial Judge has: expressed doubt whether the appellant had the authority to act as Assistant Supervisor because no rule was shown to him by the prosecution that in the absence of supervisor, the appellants as Kamdar could receive cash and issue receipts in place of supervisor. 15. The position that follows from the above discussion is that the appellant was not a supervisor, that he was simply a Kamdar, that as Kamdar it was not his duty to receive money and issue receipt and as such he was not a public servant under section 21 of the Indian Penal Code. In this respect of the matter the appellant cannot be convicted under Section 409 IPC and that he can only be convicted under Section 403 IPC. 16. The appellant's counsel next urged that the occurrence took place 18 years ago and as such the appellant should not be made to suffer imprisonment and that he might be made to pay fine a little more than Rs. 3,000/-. It is apparent that the occurrence took place about 18 year ago. The Sessions trial was held in the years 1975-76. Evidence was taken on various dates between 20-6-1975 and 3-4-1976. Pendency of a criminal case causes harassment and mental torture to the accused. The appellant was convicted on 15-4-1976. This appeal has come up for hearing more than 4 years after the date of conviction. In all these circumstances there is considerable force in the contention of the appellant's counsel that the appellant should not be made to suffer imprisonment. It will not be unjust, taking into account the amount misappropriated by the appellant, to impose a fine of Rs. 3,500/- upon the appellant. In all these circumstances there is considerable force in the contention of the appellant's counsel that the appellant should not be made to suffer imprisonment. It will not be unjust, taking into account the amount misappropriated by the appellant, to impose a fine of Rs. 3,500/- upon the appellant. Appeal is partly allowed and partly dismissed. Conviction and sentence of the appellant under Section 409 IPC recorded by the III Additional Sessions Judge Shahjahanpur on 15-4-1976 are set aside. But the appellant is convicted under Section 403 IPC and sentenced to pay a fine of Rs. 3,500/-. In default of payment of fine he will undergo RI for six months. 17. The appellant is on bail. He is given three months' time from this day to deposit the fine of Rs. 3,500/- in the court below. After he has deposited the fine his bail bonds shall stand discharged. 18. Stay order dated 27-4-1976 is vacated. Appeal partly allowed.