Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 292 (HP)

RAMESH DUTT v. STATE OF H. P.

2001-10-17

LOKESHWAR SINGH PANTA

body2001
JUDGMENT Lokeshwar Singh Panta, J.—This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 10.1.2000 passed by Sessions Judge, Sirmaur District at Nahan in Criminal Appeal No. 12-Cr. A/10 of 1999 confirming the conviction and sentence of the petitioner-accused recorded by Additional Chief Judicial Magistrate, Nahan in Criminal Case No. 36/ 2 of 1996 under Section 409 of the Indian Penal Code. 2. In brief, the facts of the prosecution case are that Ramesh Chand, petitioner-accused was appointed as Branch Post Master at Bhatgarh, under the Branch Post Office Dadahu in the year 1990-92. In his capacity as such, petitioner-accused received amounts from many persons deposited by them in their Saving Bank Accounts and Recurring Deposit Accounts, but he had not deposited those amounts with the Department nor made necessary entries in the relevant account books. On a complaint submitted to the higher authority, the Inspector, Post Offices, made an inquiry and found that the petitioner-accused though received Rs. 12,500 as the deposits in the Saving Bank Accounts (S.B. Account) and Recurring Deposit Accounts (R.D. Accounts) from Head Master, Government Middle School Bhatgarh; Bhim Chand (PW-7), Lal Chand, Tulsi Ram (PW-15) and Jatinder Sharma (PW-16) and Smt. Mehandi Devi (PW-18) during the year 1990-92, but he had not deposited those amounts with the Department nor made necessary entries in the relevant registers and thus mis-appropriated the entire amounts as a public servant. On the basis of the inquiry report, the Superintendent Post Offices, Solan Division, made a complaint, Ext. PW-l/A to the Station House Officer, Dadahu Police Station about mis-appropriation of the amounts by the petitioner-accused. On the basis of the said complaint First Information Report Ext. PA came to be registered on 29.4.1994 at 10.30 a.m. against the petitioner under Section 409 IPC. The investigation of the case was partly conducted by Head Constable Ram Singh (PW-20). Sant Ram (PW 13), Station House Officer Renukaji during further investigation took into possession pass books of the depositors mark Exts. PW-13/A, PW-13/ B. PW-13/C, PW-7/B, PW-13/D and registers Exts. PW-13/E, PW-13/F, PW-13/G, PW-10/A and PW-1O/B from the custody of the petitioner-accused. Partly the investigation was also conducted by ASI Dharam Singh (PW-21) who recorded the statements of some of the witnesses. PW-13/A, PW-13/ B. PW-13/C, PW-7/B, PW-13/D and registers Exts. PW-13/E, PW-13/F, PW-13/G, PW-10/A and PW-1O/B from the custody of the petitioner-accused. Partly the investigation was also conducted by ASI Dharam Singh (PW-21) who recorded the statements of some of the witnesses. During investigation, it was found that the petitioner-accused as a public servant received amounts during the year 1990-92 from the following persons and made necessary entries under his signature in their pass books without making corresponding entries in the relevant registers maintained by him or depositing the deposits with the post office department. 1. Headmaster Government Middle School, Bhatgarh in SB Account No. 613464 .... Rs. 505.00 2. Smt. Mehandi Devi in SB Account No. 614436 .... Rs. 2,795.00 3. Sh. Bhim Chand in RD Account No. 162984 .... Rs. 3,200.00 4. Sh. Lal Chand in RD Account No. 163689 .... Rs. 1,600.00 5. Sh. Tiilsi Ram in RD Account No. 163954 .... Rs. 1,200.00 6. Sh. Jitender Sharma in RD Account No. 163977 .... Rs. 1,600.00 7. Bhim Chand (PW-7) in RD Account No. 163978 .... Rs. 1,600.00 Total : .... Rs. 12,500.00 3. On completion of the investigation charge-sheet was prepared and submitted in the Court of Additional Chief Judicial Magistrate, Nahan by PW-13 against the petitioner-convict for the offence punishable under Section 409 IPC. On examination of the police report and other material placed on record the trial Magistrate found prima facie case against the petitioner-accused and framed charge against him under Section 409 IPC. The petitioner-accused pleaded not guilty to the charge and claimed to be tried. In trial the prosecution examined as many as 21 witnesses. The petitioner-accused in his statement recorded under Section 313 Cr.P.C. denied the allegations levelled against him. He submitted that his thumb expression and specimen signatures were obtained by the police for sending them for comparison to the hand-writing expert. He pleaded that he has not mis-appropriated any amount as alleged by the prosecution as he was not present in his office on the day of occurrence. His defence was that he was Secretary of the Union of E.D.A. Staff of his Department and he used to agitate the rightful demands of the Union with the higher authorities and due to that reason the Government started removing the leaders of the Union in one way or the other in order to defeat their legitimate demands and rights. His defence was that he was Secretary of the Union of E.D.A. Staff of his Department and he used to agitate the rightful demands of the Union with the higher authorities and due to that reason the Government started removing the leaders of the Union in one way or the other in order to defeat their legitimate demands and rights. It was on account of the negative attitude of the Government that he has been falsely implicated in the present case. However, he led no defence evidence. 4. The learned trial Magistrate on consideration of the entire oral and documentary evidence on record came to the conclusion that the prosecution has proved the offence against the petitioner-accused beyond reasonable doubt and convicted him under Section 409 IPC. He has been sentenced to undergo one years rigorous imprisonment and to pay fine of Rs. 5,000, in default to suffer rigorous imprisonment for 3 months. 5. Being aggrieved against his conviction and sentence, the petitioner-accused carried the matter- in appeal before the learned Sessions Judge who found that the petitioner-accused mis-appropriated a sum of Rs. 10,395 and not Rs. 12,500 as found by the learned trial Magistrate, and his conviction and sentence recorded by the learned trial Magistrate was confirmed and his appeal came to be dismissed. Now, the petitioner-accused has filed the present Revision Petition challenging the correctness and validity of his conviction and sentence recorded by both the courts below. 6. I have heard learned Counsel on both sides. Mr. Kuldip Singh, learned Senior Advocate appearing on behalf of the petitioner-accused firstly contended that the charge framed against the petitioner-accused was vague as the period during which he allegedly embezzled the amount has not been specifically mentioned nor the names of the depositors whose amounts have been allegedly mis-appropriated by him find mentioned therein and, therefore, the vagueness of the charge has seriously prejudiced the defence of the petitioner-accused in the trial. To appreciate the submission of the learned Senior Counsel, I have perused the order of charge framed by the learned trial Magistrate against the petitioner-accused which reads as under: "I, M.K. Bansal, Additional Chief Judicial Magistrate, District Sirmaur, Nahan, H.P. do hereby charge you accused as under: That during period prior to 21.4.1991 while being as Branch Post Master Bat Garh Branch Post Office under Dadahu Sub Post Office and therefore being a public servant and in that capacity entrusted with the amount deposited by the various depositors dishonestly mis-appropriated an amount of Rs. 12,500 in total and thereby committed an offence punishable under Section 409 IPC and within the cognizance of this Court. And, I hereby direct that you be tried by this Court on the aforesaid charge." 7. Chapter XVII of Code of Criminal Procedure deals with the charge. Section 211 deals with contents of charge. Section 212 (1) prescribes that the charge shall cdntain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or the thing, if any, in respect of which, it was committed, as are reasonable sufficient to give the accused notice of the matter with which he is charged. Sub-, section (2) is material and relevant in the present case which reads, thus: "212(2) When the accused is charged with Criminal breach of trust or dishonest mis-appropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 219 :" Provided that the time included between the first and last of such dates shall not exceed one year. 8. 8. No doubt in the charge extracted hereinabove, the learned trial Magistrate has not mentioned the dates between which the offence was alleged to have been committed by the petitioner-accused and the period given in the charge was prior to 21.4.1991, whereas the petitioner-accused was found having mis-appropriated the amounts of deposits between years 1990 to 1992 and the time included between the first and last of such period exceeded one year. The petitioner-accused should have been charged separately by the trial Magistrate for period between the years 1990-91 and 1991-92, yet in my considered view the error or omission to state the offence or those particulars has not occasioned failure of justice to the petitioner-accused in the present case. He was told about the commission of the offence and the period during which the amount deposited to him by the above named depositors and therefore, the error or omission, if any, in the charge cannot be regarded as material and significant to vitiate the trial. The petitioner-accused was in fact not misled by such error or omission and such errors or omissions are curable under Section 215 and Section 464 Cr.P.C. The petitioner-accused did not make any complaint before the learned trial Magistrate or learned Sessions Judge about the defect occurred in the charge framed against him and it is for the first time that this belated plea has been taken by the learned Senior Counsel on his behalf before this Court when the petitioners conviction was confirmed by the first appellate Court. 9. I may usefully refer to the well settled position of law on this point. In Kadiri Kunhahammad v. The State of Madras, AIR 1960 SC 661, their Lordships while dealing with the provisions of Section 222(2) of the Code of Criminal Procedure, 1898 corresponding to Section 212(2) of the Code of Criminal Procedure, 1973 (hereinafter New Code), Section 225(old) (New Code Section 215 and Section 537, (old) (New Code Section 465) have held (AIR pages 664 and 665) as under : "6. The last argument urged by Mr. Purshottam is that the charge in question contravenes the mandatory provisions of the proviso to Section 222(2) of the Code, and according to him this contravention vitiates the whole trial and renders void the order of conviction and sentence passed against the appellant. Section 222 occurs in Ch. XIX which deals with the form of charges. Purshottam is that the charge in question contravenes the mandatory provisions of the proviso to Section 222(2) of the Code, and according to him this contravention vitiates the whole trial and renders void the order of conviction and sentence passed against the appellant. Section 222 occurs in Ch. XIX which deals with the form of charges. Sub-section (1) of Section 222 mentions the particulars as to time, and place of the alleged offence which should be included in the charge. The object of this provision is to give the accused person a reasonably sufficient notice of the matter with which he is charged. Sub-section (2) provides that, when an accused person is charged with criminal breach of trust, it is sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the said offence had been committed. The proviso adds that it is unnecessary to specify particular items or exact dates provided that the time included between the first and the last of such dates shall not exceed one year. It is common ground that the breach of trust which gives rise to count one in the sixth charge covers a period between April 1949 and October 1951 which is more than one year and that is the basis of Mr. Purshottams argument. We have already dealt with the effect of Section 235(1). Under the said provision more offences than one committed by the conspirators can be tried together at a trial where all the conspirators are jointly tried; and to that extent Section 234(2) cannot be invoked in such a case. That being so, Mr. Purshottams argument means nothing more than this that the form of the charge is inconsistent with the proviso to Section 222(2). If the first count is the sixth charge had been split up into two sub-counts, each one specifying the amount in respect of which breach of trust had been committed during the period of one year that would have met the requirement of the proviso to Section 222(2). (7) The failure of the prosecution to split up the first count into two sub-counts cannot obviously be regarded as introducing a fatal infirmity in the validity of the trial. It would be noticed that this argument is not one of misjoinder. (7) The failure of the prosecution to split up the first count into two sub-counts cannot obviously be regarded as introducing a fatal infirmity in the validity of the trial. It would be noticed that this argument is not one of misjoinder. It is based on the formal requirement prescribed by the proviso to Section 222(2) as to how charges of breach of trust should be framed. There is no difficulty in holding that such an irregularity can be cured both under Section 225 and Section 537 of the Code, provided of course no prejudice has been thereby caused to the appellants case. (8) It would be relevant to state that the breach of every provision of the Code does not necessarily make the trial invalid. In this connection we may incidentally point out that the question about the effect of the breach of statutory provisions contained in the Code has often been raised for judicial decision. In Pulukuri Kjottayya v. Emperor, 74 Ind. App 65 : (AIR 1947 PC 67), the Privy Council has held that if the criminal trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. In that case the irregularity held proved consisted in the breach of the provisions of Section 162 of the Code. Having considered the relevant circumstances and facts proved in the case, the Privy Council held that the breach of Section 162 had caused no prejudice to the accused and could not sustain the argument that his trial was bad. 9. Similarly in Abdul Rahman v. Kind Emperor, AIR 1927 PC 44, while dealing with a breach of the provisions of Section 360 of the Code, the Privy Council applied the test of the actual or possible failure of justice and held that the breach in question did not vitiate the tria). Even in cases of misjoinder where the contravention of the provisions of Section 234 of the Code is involved, it is not denied by Mr. Even in cases of misjoinder where the contravention of the provisions of Section 234 of the Code is involved, it is not denied by Mr. Purshottam that, even prior to the amendment of Section 537 of the Code, misjoinder by itself would not have vitiated the trial unless prejudice to the accused had been proved. As we have already pointed out, in the present case there is no case of a misjoinder; and so, having regard to the nature of the principal charge framed against the appellant and the other accused persons, the argument that the breach of the proviso to Section 222(2) necessarily vitiates the trial must be rejected." 10. Again in State of Bombay (now Maharashtra) v. Umarsaheb Buransaheb Inamdar and others, AIR 1962 SC 1153, their Lordships have reaffirmed the earlier view taken in Kadiri Kunhahammad v. State of Madras, AIR 1960 SC 661, and observed (AIR pages 1153 and 1154) as under : "(5) Sections 233 to 239 deal with the joinder of charges, and they speak not only of an accused being charged with offences, but of such charges being tried separately or jointly. Section 233 states that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately, except in -the cases mentioned in Sections 234, 235, 236 and 239. It is clear that the general rule is that there should be a separate trial for each distinct offence of which a person is accused. It follows that each item of property of which an accused is alleged to have committed breach of trust, constitutes one distinct offence and that, in general, it would be necessary to have as many trials as there be distinct offences of criminal breach of trust committed by the accused. But Section 222(2) provides that when the accused is charged with criminal breach of trust, the charge may be with respect to the gross sum embezzled within a period of one year and that the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234. The charge framed in the present case was with respect to the gross sum embezzled within a period of more than twelve months, the period being between March 6, 1949 and June 30, 1950. The charge framed in the present case was with respect to the gross sum embezzled within a period of more than twelve months, the period being between March 6, 1949 and June 30, 1950. The charge therefore was in contravention of the provisions of Section 222(2). This defect in the charge, however, did not lead to any prejudice to the accused in the trial and therefore did not vitiate the trial, in view of the provisions of Section 537 of the Code. (6) The charge could have been split up into two charges, one with respect to the offence of criminal breach of trust committed with respect to the amount embezzled between March 6, 1949 and March 5, 1950 and the other with respect to the amount embezzled between March 6,1950 and June 30,1950. The two offences of criminal breach of trust could have been tried together in the present case, as the offences were said to have been committed in pursuance of the criminal conspiracy entered into by the accused. All the offences committed in pursuance of the conspiracy are committed in the course of the same transaction and therefore can be tried together at one trial, in view of sub-section (1) of Section 235 of the Code which provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. It is therefore clear that no prejudice was caused to the accused by the defect in the charge” 11. In State of Andhra Pradesh v. Thakkidiram Reddy and others, AIR 1998 SC 2702, their Lordships held in paragraphs 10 and 11 as follows: (AIR 2704 and 2705): "(10) Sub-section (1) of Section 464 of the Code of Criminal Procedure, 1973 (Code for short) expressly provides that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact (emphasis supplied) been occasioned thereby. Sub-section (2) of the said section lays down the procedure that the Court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes in Section 465 of the Code; and it lays down that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that Court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 11. This Court in Willie (William) Slaney v. State of Madhya Pradesh, (1995) 2 SCR 1140 : (AIR 1956 SC~ 116), elaborately discussed the applicability of Sections 535 and 537 of the Code of Criminal Procedure 1898, which correspond respectively to Sections 464 and 465 of the Code, and held that in judging a question of prejudice, as of guilt, Courts must act with broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. Viewed in the context of the above observations of this Court we are unable to hold that the accused persons were in any way prejudiced due to the errors and omissions in the charges pointed out by Mr. Arunachalam. Apart from the fact that this point was not agitated in either of the Courts below, from the fact that the material prosecution witnesses (who narrated the entire incident) were cross-examined at length from all possible angles and the suggestions that were put forward to the eye witnesses we are fully satisfied that the accused persons were not in any way prejudiced in their defence. While on this point we may also mention that in their examination under Section 313 of the Code, the accused persons were specifically told of their having committed offences (besides others) under Sections 148 and 302/149, IPC. For all these reasons we reject the threshold contention of Mr. Arunachalam” 12. Again in State of Tamil Nadu v. Nalini and others, AIR 1999 SC 2640, their Lordships had the occasion to deal with the error or omission or irregularity to the charge framed against the accused persons and said in paragraph 536 (AIR P. 2792) as under : "536. Mr. Natrajan at the outset submitted that the charges of conspiracy and other charges framed against the accused were highly defective and did not show in what manner the accused had to answer these charges. He said that it was not enough if a statutory provision is merely incorporatively charged. He said prosecution may rely on Sections 464 and 465 of the Code to overcome his objections to the charge but these two sections did not completely bar the argument that charge is defective and had prejudiced accused in their defence. He said charge No. 1 was so complicated and conspiracy spread over a number of years and the accused who allegedly joined the conspiracy after the object of conspiracy had been achieved, were all tried together, which in itself caused great prejudice to them in their defence. Mr. Altaf Ahmad, however, quickly interposed to say that Section 215 of the Code would protect any error in the charge and that the finding arrived at by the Designated Court could not be reversed in view of Section 465 of the Code even if argument of Mr. Natarajan is accepted. We, however, do not think that we should dilate on this objection by Mr. Natarajan as powers of Reference Court are quite wide and we have to examine, the evidence regarding conspiracy and to see if there is any irregularity in the charge, which has prejudiced the accused......" 13. In the light of the above settled law, the argument of the learned Senior Counsel that the breach of proviso to Section 212(2) of the Code of Criminal Procedure, 1973 necessarily vitiates the trial has to be rejected. In the light of the above settled law, the argument of the learned Senior Counsel that the breach of proviso to Section 212(2) of the Code of Criminal Procedure, 1973 necessarily vitiates the trial has to be rejected. The charge framed in the present case was with respect to the gross sum embezzled within a period of twelve months, the period being between March 30, 1990 and October 3, 1992. This defect in the charge spliting up the charges into two sub-counts for two different years have not caused any prejudice to the petitioner-accused and there is no difficulty in holding that such an irregularity can be cured both under Section 215 and Section 464 of the Code of Criminal Procedure, 1973. 14. Mr. Kuldip Singh, learned Senior Counsel next contended that the prosecution has failed to prove the entrustment of the amounts with the accused and both the Courts below have gravely erred in appreciating the evidence of PWs 7, 15, 16 and 18 who have specifically not stated that particular amount was entrusted by them on a specific date with the accused who after accepting the amount made particular entry in their pass books in token of having received the amount and, therefore, the orders of conviction recorded against the petitioner-accused by the Courts below deserve to be set-aside. 15. To prove the entrustment, the prosecution examined PWs 7, 15, 16 and 18, PW-7 opened RD Account No. 162984 on 5.11.1988 on monthly deposit of Rs. 100/and pass book Ext. PW-7/B was issued to him. He continued to deposit a total sum of Rs. 3,200 on different dates starting from March 30, 1990 till October 3, 1992 as per the statement recorded by the learned Sessions Judge in paragraph 11 of the judgment. All the entries in the Pass Book were duly signed by the accused with the seal of post office affixed upon it but, their corresponding entries were not made in R.D. journal register (Ext. PW-13/G) by the accused who maintained the register nor he deposited the said amount with the department. PW-7 also opened another RD Account No. 163978 on 5.2.1992 and deposited Rs. 200 per month vide form Ext. PW-7/C and pass book Ext. PW-7/ A was issued to him. Form Ext. PW-7/C and pass book Ext. PW-7/A were allegedly issued and signed by the petitioner-accused. PW-7 also opened another RD Account No. 163978 on 5.2.1992 and deposited Rs. 200 per month vide form Ext. PW-7/C and pass book Ext. PW-7/ A was issued to him. Form Ext. PW-7/C and pass book Ext. PW-7/A were allegedly issued and signed by the petitioner-accused. In RD Account No. 163970 a total sum of Rs. 1,600 was deposited by PW-7 on various dates between 7.3.1992 to 3.10.1992. The entries in the pass book in respect of the receipt of this amount were made which were also signed by the petitioner-accused but no corresponding entries in the RD Journal Register Ext. PW-13/G were made by him maintained for the said purpose nor the said amount was deposited by him with the Department. 16. PW-15 opened RD Account No. 163954 on 25/27.1.1991 and deposited Rs. 150 per month and Card Ext. PW-15/A for the opening of the account was issued which bears the signature of P-15 the depositor as well as that of the petitioner-accused. A total sum of Rs. 1,200 was deposited by PW-15 w.e.f. 15.2.1992 to 3.9.1992. Petitioner-accused again failed to make necessary entries in the relevant RD Journal Register Ext. PW-13/G nor the said amount was deposited with the Department. Similarly PW-16 deposited a total sum of Rs. 1,600 on different dates in his RD Account No. 163977 by filling up form Ext. PW-16/A duly signed by him and by the petitioner-accused. The entries in the pass book of the depositor were also signed by the petitioner-accused but the corresponding entries were not reflected in the relevant RD Journal Register Ext. PW-13/G. PW-18 deposited total amount of Rs. 2,795 by opening the saving bank account No. 614436. Necessary entries in the pass book Ext. PW-13/B under the signatures of the petitioner-accused were reflected therein but no corresponding entries in SB Journal Registers Exts. PW-13/E and PW-13/F were made by the petitioner-accused. 17. On scrutiny of the oral and documentary evidence on record, the learned Sessions Judge, held that the petitioner-accused received a total sum of Rs. 10,395 from PWs 7, 15, 16 and 18 the depositors had failed to deposit the amounts in the post office nor necessary entries were made in the relevant registers of the post office. These witnesses have categorically stated in their deposition before the trial Court that they had deposited their money with the petitioner-accused. 10,395 from PWs 7, 15, 16 and 18 the depositors had failed to deposit the amounts in the post office nor necessary entries were made in the relevant registers of the post office. These witnesses have categorically stated in their deposition before the trial Court that they had deposited their money with the petitioner-accused. The suggestion put to the witnesses by the defence that entries in the pass books reflecting the deposits of the amounts were made by them and not by the accused has been emphatically denied by all these witnesses. 18. Both the courts below relying upon the oral testimony of PWs 7, 15, 16 and 18 corroborated by the entries made in their pass books duly signed by the accused, came to the conclusion that these witnesses deposited amounts on different period with the petitioner-accused who was appointed as a public servant discharging the official duties. The evidence of these witnesses is positive, reliable and convincing and after accepting their evidence by the Courts below, this Court while exercising the revisional jurisdiction cannot re-appraise and re-assess the evidence. The ratio of the judgment in Dadarao v. The State of Maharashtra, AIR 1974 SC 388, relied upon by the learned Senior Counsel for the petitioner-accused will be of no help to his defence taken in his statement recorded under Section 313 Cr.P.C. In that case it has been held that in the absence of oral evidence to show that books of account were regularly kept in the course of business under Section 34 of Evidence Act and/or any other oral evidence to prove the entrustment of the amount with the accused, the charge of breach of trust cannot be said to have been established against the accused. 19. In Janeshwar Das Aggarwal v. State of U.R, AIR 1981 SC 1646, it has been held that before a conviction under Section 409 can be recorded, the prosecution must prove two essential facts: (1) the factum of entrustment and (2) the factum of mis-appropriation of the entrusted articles. 20. 19. In Janeshwar Das Aggarwal v. State of U.R, AIR 1981 SC 1646, it has been held that before a conviction under Section 409 can be recorded, the prosecution must prove two essential facts: (1) the factum of entrustment and (2) the factum of mis-appropriation of the entrusted articles. 20. In State of Gujarat v. Chandubhai Ramjibhai Patel, 1995 Cri.L.J. 4082, learned Single Judge of Gujarat High Court observed that the prosecution has not been able to prove that the accused had written or changed the entries in the relevant pass books or record of the post office as there was no evidence on record to indicate that the alleged entries in records relied upon by the prosecution were in the handwriting of the accused. In that case it was clearly found from the record that the Branch Post Office records and account books were not in exclusive possession of the accused and the accused was acquitted by the trial Court as the prosecution could not establish the material ingredients of the provisions of Sections 409 and 477-A of the IPC. The acquittal of the accused was found sustainable on the basis of the evidence considered by the trial Court. This decision is also not applicable in the peculiar facts of the present case. 21. The next submission of the learned Senior Counsel for the accused that mere failure of the accused to reflect corresponding entries in the relevant registers will not amount to mis-appropriation of the amount by the petitioner-accused and, therefore, he has been wrongly convicted by the Courts below, cannot be accepted. 22. In Sardar Singh v. State of Haryana, AIR 1977 SC 1766, their Lordships held that mere failure or omission to return property was not sufficient to constitute offence under Section 409 IPC and the prosecution had to go further to show that the accused dishonestly mis-appropriated or converted the receipt-book to his own use or dishonestly used or disposed of it. In that case it was found that the prosecution had not been able to prove that the accused dishonestly mis-appropriated the receipt book and for lacking reliable and cogent evidence, the accused was acquitted. 23. In that case it was found that the prosecution had not been able to prove that the accused dishonestly mis-appropriated the receipt book and for lacking reliable and cogent evidence, the accused was acquitted. 23. In Narendra Pratap Narain Singh and another v. State of U.P., AIR 1991 SC 1394, the conviction and sentences passed by the High Court of Allahabad against the appellants were set-aside on the ground that the prosecution could not prove by positive and satisfactory evidence that the appellants in that case committed any offence under Sections 409, 467 and 471 of the Indian Penal Code. 24. In the light of the ratio of the above said decisions of the apex Court, I have re-examined the entire material on record. On re-consideration of the reasonings and findings recorded by both the Courts below I have no hesitation to hold that the courts have rightly held the petitioner-accused not guilty of the offence punishable under Section 409 IPC as it was not mere failure on the part of the petitioner-accused to reflect the entries of the amounts received by him from the depositors in the relevant registers maintained by him for the said purpose but it is found that the petitioner-accused had mis-appropriated the amounts as he failed to account for the said amounts. 25. It has been stated by the learned trial Magistrate in his order that the amount mis-appropriated by the accused was later on recovered by the Department with interest from him and disbursed to the depositors whose amounts were mis-appropriated by the petitioner-accused. The recovery of the mis-appropriated amount from the petitioner-accused will also corroborate the essential ingredients of Section 405 IPC punishable under Section 409 IPC that petitioner-accused was entrusted with the amounts by the depositors which he criminally mis-appropriated without reflecting the corresponding entries in the relevant registers or depositing the amounts in the post office department being a public servant discharging his official duties. 26. In Jaikrishandas Manohardas Desai and another v. State of Bombay, AIR 1960 SC 889, it has been held in paragraph 4 as under: "4... 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. 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” 27. Mr. Kuldip Singh, learned Senior Counsel next contended that the prosecution has failed to prove on record that the various disputed entries in the pass books were in the hand-writing of petitioner-accused or those entries were initialled by him as the disputed writings were connected with the admitted hand-writing of the petitioner-accused without obtaining the opinion of hand-writing expert. In support of this submission the learned Senior Counsel placed reliance upon State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14. In that case the Supreme Court observed in paragraph 29 (AIR page 21) as under: "29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand-writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a hand-writing which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert." 28. In the present case admittedly the entries in the pass books of the depositors, signatures or initials appended thereon by the petitioner-accused had not been sent to the hand-writing expert for comparison with his admitted signatures or initials. The learned Sessions Judge has compared the signatures of the petitioner-accused on the forms Exts. PW-4/A, PW-7/C, PW-15/A, PW-16/A and PW-4/B on the basis of which the accounts were opened by the above said witnesses-depositors in their respective accounts. Their accounts were settled by the petitioner-accused in the Branch Post Office where he was posted and entrusted with such duty. Those forms were found duly signed by the depositors as well as by the petitioner-accused. One entry was made by the petitioner-accused in respect of the deposits in relevant register Ext. PW-13/G. It has been observed by the learned Sessions Judge in his order that the petitioner-accused refused to give his admitted signatures during investigation before the Magistrate for comparison with his signatures or initials on the forms and or pass books of the depositors. The conviction of the petitioner-accused is not based solely on comparison of his signatures or initials by the learned Sessions Judge with his admitted and proved documents. PWs-7, 15, 16 and 18 unequivocally and positively deposed before the trial Magistrate that they had made deposits of their money with the petitioner-accused and he made necessary entries in their pass books in token thereof. In the face of the reliable, trust-worthy and unimpeachable evidence of the depositors, the defence of the petitioner-accused that he did not make any entry on the pass books of the depositors nor he •put his initials thereon is not sustainable and tenable. 29. In K.S. Satyanarayana v. V.R. Narayana Rao, AIR 1999 SC 2544, their Lordships while dealing with the provision of Section 73 of the Indian Evidence Act said in paragraph 7; thus : "7. A piquant situation had developed before the trial Court when the 1st defendant denied his signatures on the written statement and Vakalatnama in favour of his counsel. Trial Court should have immediately probed into the matter. A piquant situation had developed before the trial Court when the 1st defendant denied his signatures on the written statement and Vakalatnama in favour of his counsel. Trial Court should have immediately probed into the matter. It should have recorded statement of the counsels for the 1st defendant to find out if Vakalatnama in his favour and written statement were not signed by the 1st defendant whom he represented. It was apparent that the 1st defendant was trying to get out of the situation when confronted with his signatures on the Vakalatnama and the written statement and his having earlier denied his signatures on Exh. P-l and Exh. P-2 in order to defeat the claim of the plaintiff. Falsehood of the claim of the 1st defendant was writ large on the face of it. Trial Court could have also compared the signatures of the 1st defendant as provided in Section 73 of the Indian Evidence Act. Section 73 is reproduced as under: Comparison of signature, writing or seal with others admitted or proved. 73. In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made : by that person may be compared with the one which is to be proved, although that signature writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This Section applies also, with any necessary modifications, to tinger impressions." 30. Mr. Kuldip Singh, learned Senior Counsel lastly contended that no specific question about the specific entries incorporated in the various pass books of the depositors, having been made by the petitioner-accused, appending his signatures or initials thereon, filling and signing of forms prescribed for opening the accounts were put to the petitioner-accused in his statement recorded under Section 313 Cr.P.C. and the lapse will amount to illegality causing prejudice to the defence of the petitioner-accused. I am afraid to accept this submission as the accused was in the knowledge of the entire case of the prosecution registered against him. He cross-examined the witnesses and put his vague and unfounded defence that it was a false case fastened upon him because he happened to be Secretary of the Union of EDA staff. He could not explain as to why he was picked up by the authorities to be involved in a false case when there were other office holders of the Union of EDA who equally took interest in the welfare of their colleague. The petitioner-accused has not explained as to why he politely and silently allowed the authority of his department to recover the entire embezzled amount from him together with interest which was later on paid to the depositors. Mere assertion of false implication without showing any malice or hostility will not be a cogent ground for dis-believing and dis-crediting the testimony of the depositors who have no enmity or hostility against the petitioner-accused involving him in a false case. The trial Magistrate put all the incriminating circumstances against the petitioner-accused and he was afforded full opportunity to meet the prosecution case and no prejudice is caused to him. 31. In Gulam Din Buck and others v. State of ] & K, (1996) 9 SCC 239, it has been held that circumstances in respect of which accused was not examined under Section 313 Cr.P.C. 1973, cannot be used against him as no opportunity is provided to the accused to explain the circumstances appearing against him and in those circumstances the conviction of the said accused was found unsustainable. In this case as stated above all the circumstances were put to the petitioner-accused in his statement under Section 313 Cr.P.C. Both the courts below have rightly appreciated and evaluated the entire evidence and other material on record and I find no infirmity or perversity in the findings and reasonings recorded by them to interfere as the revisional jurisdiction of this Court is only supervisory in nature and this Court will not re-appraise or re-assess the evidence sitting as second Appellate Court. 32. No other point is urged before me by the learned Counsel on either side. 33. For the above said reasons, there is no merit in this Revision Petition and it is accordingly dismissed. 32. No other point is urged before me by the learned Counsel on either side. 33. For the above said reasons, there is no merit in this Revision Petition and it is accordingly dismissed. The conviction and sentence of the petitioner-accused recorded by the Courts below are confirmed. The petitioner-accused is on bail. His bail and surety bonds are cancelled. He shall surrender to custody forthwith before the Additional Chief Judicial Magistrate or Chief Judicial Magistrate, Sirmaur at Nahan to serve out the sentence imposed upon him by the trial Magistrate. Revision petition dismissed.