Order The petitioner has been convicted by the learned Additional First. Class Magistrate of Emakulam (C.C. No. 3 of 1957) under section 409, Penal Code and sentenced to underto regorous imprisonment for 3 months. The Additional Sessions Judge, Emakulam, who heard the appeal (Criminal Appeal No. 137 of 1957) against that decision confirmed the conviction and the sentence and dismissed the appeal. Hence this revision. The petitioner was a Bill Collector of the Ernakulam Municipality and the case against him was that during the period 3rd September, 1951, to 3rd July, 1952, out of the collections made by him in his official capacity he misappropriated amounts to the tune of Rs. 786-7-1 and thus committed the offence of criminal breach of trust by a public servant punishable under section 409, Penal Code. The trial Court found that misappropriations to the extent of Rs. 748-13-0 have been made out and accordingly convicted and sentenced the petitioner as stated earlier. The learned Additional Sessions Judge confirmed the conviction and sentence. The facts are not in dispute and they have also been proved beyond all doubt. As per Exhibits P-4 to P-52 the petitioner collected during the period referred to above the sum of Rs. 748-13-0. Admittedly these amounts were not remitted to the Municipal Office as enjoined by practice and the rules the same day or the earliest occasion possible. It was only when the misappropriations were found out that he thought of making good the amounts to the Municipality. Both sides are agreed that the petitioner was a public servant within the meaning of that term under the Penal Code. In this revision against the concurrent decisions holding the petitioner guilty under section 409, Penal Code, Mr. Manual Paikaday, learned counsel for the petitioner, urged three points before me. Both sides are agreed that the petitioner was a public servant within the meaning of that term under the Penal Code. In this revision against the concurrent decisions holding the petitioner guilty under section 409, Penal Code, Mr. Manual Paikaday, learned counsel for the petitioner, urged three points before me. They were: (1) that the prosecution initiated without the sanction under section 197, Criminal Procedure Code, was bad in law and unsustainable; (2) that the prosecution had failed to prove that the failure to remit the various amounts as and when they were collected was in violation of any direction of law prescribing the mode in which the trust was to be discharged, or of any legal contract, express or implied, which the petitioner had made touching the discharge of the trust and (3) that in any event it has not been made out that the failure to remit the money was dishonest. All these points have been considered by both the Courts below and as I am in full agreement with their conclusions I do not propose to discuss the questions at any great length. The first point is really a preliminary objection to the maintainability of the prosecution and it has, therefore, to be necessarily disposed of first. The petitioner's complaint is that the prosecution was initiated in disregard to the provisions of section 197, Criminal Procedure Code. The lower Courts have correctly pointed out that there is no perceptible connection between the act complained of and the discharge of the petitioner's official duty. In Appran v. Mohd. Kunju1 I had occasion to review the relevant authorities bearing on section 197 and it has been pointed out that the test whether the section has been offended or not is whether there is any perceptible connection between the act complained of and the discharge of the concerned person's official duty. There is almost consensus of opinion that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant. The Supreme Court has given its imprimatur to that view in Om Prakash v. State of Uttar Pradesh2. Mr. Paikaday pointed out the decisions depended upon in that case did not warrant that conclusion. I am afraid the criticism is not well-founded and it is not open to me to go beyond the opinion expressed in the Supreme Court decision. The Supreme Court has given its imprimatur to that view in Om Prakash v. State of Uttar Pradesh2. Mr. Paikaday pointed out the decisions depended upon in that case did not warrant that conclusion. I am afraid the criticism is not well-founded and it is not open to me to go beyond the opinion expressed in the Supreme Court decision. I do not find anything abnormal in this case to justify the contention that sanction under section 197 was a pre-requisite for the initiation of the prosecution against the petitioner. Though there was some controversy before the lower Courts whether the petitioner was removable only by the State Government, the appellate Court proceeded on the basis that it was so. My decision is also given on that footing. As for the second point the lower Court depended upon the practice obtaining in the Municipality as spoken to by P.Ws. 1, 2, 3 and 8 that the petitioner was bound to remit the collections made by him on the same day as the collections were made and that if that were not possible on the next office day. An implied contract was read into the course of the conduct which the petitioner himself was following as evidenced by Exhibits P-2 and P-3, the collection registers maintained by him. There is, however, clear provision in the Cochin Municipal Account Code as to how the Bill Collectors should remit to the office the amounts collected by them. Article 296 is in these terms: “Every Municipal servant entrusted with the collection of Municipal Revenue by means of bills will be supplied with a collection book Form No. 86. The bill collector will always keep the books in his personal custody and carry it about with the bill books in his charge He should enter in it the particulars of every bill, as soon as it is collected. Bill collectors should remit their collections to the Municipal office every day or at least on every alternative days. When doing so they should always bring with them their collection book as well as the bill books in their charge, enter the details of the amounts making up the remittance from their collection book into the challan register maintained in the office in Form No. 87 or 88 and take the tax clerk's acknowledgements in the collection book”. When doing so they should always bring with them their collection book as well as the bill books in their charge, enter the details of the amounts making up the remittance from their collection book into the challan register maintained in the office in Form No. 87 or 88 and take the tax clerk's acknowledgements in the collection book”. Exhibits P-2 and P-3 are books maintained as per this Article and on every page of those books it is printed ‘Form No. 86 (Article 296 M.A.C.).‘In the face of this Article it is idle to contend that there was no law or rule prescribing the mode in which the petitioner's trust was to be discharged. It is unfortunate that the attention of the lower Courts was not invited to this Article. Mr. Paikaday contended that in as much as the attention of his client was not invited to this Article I cannot depend upon it to meet the argument. No doubt, the Article has not been referred to in the evidence or by the lower Courts, but the substance of the evidence given by the aforesaid witnesses who were competent to speak about it is in conformity with the terms of the Article and it has not been shown how the petitioner has been prejudiced by the failure to specifically refer to the provision. In my view there is no substance in the second point either. The third point relates to the question of dishonesty. Article 296 of the Municipal Account Code referred to above shows that the petitioner was bound to enter the collections in his register and remit the amounts to the Municipal Office on the same day or at least once in two days. Exhibits P-2 and P-3 show that during the relevant period he has been making entries about some collections made by him in the registers and duly remitting the amounts relating to those entries to the office In fact, during that period remittances of collections are seen made almost every day. No entry is, however, seen made regarding Exhibits P-4 to P-52. The omission is certainly wilful and by making some remittances almost every day he lulled the authorities into the belief that everything was going on in order. No entry is, however, seen made regarding Exhibits P-4 to P-52. The omission is certainly wilful and by making some remittances almost every day he lulled the authorities into the belief that everything was going on in order. As observed by the lower Courts for months the amounts were retained with him and the counterfoil books relating to Exhibits P-4 to P-52 were admittedly with him. It is unthinkable that for several months the various amounts covered by Exhibits P-4. to P-52 were lying idle with him and he has no case that there was any inadvertent omission on his part to make the entries or the remittances. The curious part of the case was the argument that the Bill Collector was within his rights in retaining the money with him as long as he liked. As observed by the lower Courts if that was his view there was no reason why the collections should not have been entered in the collection registers. The failure to enter some items while other items were being entered and duly remitted proclaims to my mind lordly the dishonest in tent. This is exactly the approach the lower Courts made and I have no reason to differ from them. The revision fails in the result and it is dismissed. The order suspending the execution of the sentence is cancelled and the petitioner will surrender to his bail bond to undergo the sentence of imprisonment passed against him. Order accordingly. M.C.M. ----- Petition dismissed.