Judgment : Indrajit Chatterjee, J. This Court is hearing this appeal as against the judgment and order of conviction respectively dated 20-04-2010 and 21-08-2012 passed by the then learned Additional District & Sessions Judge, 2nd Court, Purulia, in Special Court Case No. 05 of 1990 arising out of Puncha P.S. Case No. 2 dated 04-04-1987 in which the appellant was convicted in respect of the charge punishable under Section 409 of the Indian Penal Code (hereinafter called as the Code) and he was sentenced to suffer rigorous imprisonment for five years and was further directed to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months more. The accused was given the right of get set off, which is however automatic being a right of the accused as enacted in that section. This Court issued Rule for enhancement of sentence as per order dated 08-06-2010. The case which was before the trial court can be stated in brief thus:-that this accused appellant was at one point of time was the Extra Departmental Branch Postmaster of Rajnowagarh Extra Departmental Branch Post Office (hereinafter called as the said post office) which was attached Balakdih sub-post office under Purulia Head Post Office for the period from 15-5-1982 to 12-4-1986 and during that period, he defrauded government money to the tune of Rs.2500/- from the said Post Office in respect of Savings Bank Account No. 226461 which stood in the name of one Bhutu Mahato (since deceased). It was further case of the prosecution that once Sri Bhutu Mahato tendered Rs.2500/- to the accused-appellant through his son, Sunil Kumar Mahato, on 06-09-1985 to make deposit in the said account but the accused-appellant, Saktipada Bouri, entered the particulars of the said deposit in the relevant passbook under his initial and date, stamp, impression of the office and granted counterfoil receipt of the pay-in-slip initial, date and stamp to the depositor, his son. However, this accused-appellant did not enter that transaction of deposit in the Office Journal, Branch Office Savings Bank Journal etc. However, this accused-appellant did not enter that transaction of deposit in the Office Journal, Branch Office Savings Bank Journal etc. and he also did not take that amount to Government Account on the same day or any subsequent date and as such, he defrauded the Government money to the tune of Rs.2500/- The First Information Report was filed with Puncha Police Station, District: Purulia, by one Subrata Chattaraj (Sub-Divisional Inspector of Post Offices, Purulia Central Sub-Division), (P.W.-1) and regarding this Puncha P.S. Case No. 2 dated 04-04-1987 was registered. The said case was also subsequently registered as G.R. Case No. 407 of 1987 of the then S.D.J.M., Purulia. The investigation was taken up by the District Enforcement Brach, Purulia and it was investigated by P.W.-5, Subodh Chaki, one S.I. of Police. During the course of investigation, he could not seize any document from the said Post Office since those were not available, several attempts were made to trace out the accused but in vain. He seized some documents from the Head Post Office, Purulia on 19-04-1998 being S. B. Journal of Rajnowagarh E.D.B.O. (Extra Departmental Branch Post Office) for the period from 14-10-1980 to 23-01-1987. Account book for the period from November, 1984 to November, 1985, B.O. Journal of the said E.D.B.O. from 05-07-1985 to 21-09-1985, Postal passbook No. 226461 standing in the name of Bhutu Mahato written from 20-01-1979 from 21-01-1987 including the entry dated 06-09-1985 for Rs.2500/- all as per seizure list dated 04-04-1997 (Ext.2). The Investigating Officer also seized the attested copy of the selection letter in the name of the present appellant appointing him in the post of E.D.B.P.M. of Rajnowagarh, E.D.P.O. (marked as Ext.7). The accused made a statement, which was recorded in presence of the de facto complainant, Purulia on 06-02-1987, wherein this accused admitted his guilt and gave an undertaking that he will deposit the same by March 20-03-1987 or 25-03-1987. The said letter of admission was marked as Ext. 5 before the learned trial court. Ext. 4 is the report submitted by the de facto complainant to the Superintendent of Posts, Purulia Division dated 05.02.1987. The said letter of admission was marked as Ext. 5 before the learned trial court. Ext. 4 is the report submitted by the de facto complainant to the Superintendent of Posts, Purulia Division dated 05.02.1987. One carbon copy of a letter dated 19-04-1988 of the Superintendent of Post Offices, Purulia Division which was seized by the Investigating Officer was marked as Ext.3 before the trial court to prove that this accused appellant had deposited Rs.600/- on 27-02-1987, Rs.900/- on 24-03-1987, Rs.500/- on 06-11-1987 and Rs.500/- on 29-01-1987 respectively as per the receipt nos. 56, 57, 58 and 59. The said document also shows that the penal interest of Rs.555/- was not deposited by the accused-appellant. The Investigating Officer also seized some other documents, that is, savings bank pass book standing in the name of Bhutu Mahato (material Ext.1), Branch Officer Journal of the said E.D.P.O. from 05-07-2005 to 21-09-2005 (Material Ext. 1(a)), one account book of the said Post Office for the period from November, 1984 to November, 1985 (Material Ext.1(b)). The Investigating Officer also seized the savings book journal of the said post office for the period from 14-10-1980 to 23-07-1987 which was marked as Material Ext.1(c). Some articles were also seized as regards that transaction which were also marked as material Exts. The Investigating Officer of this case after completion of investigation submitted charge sheet against the accused for the offence punishable under Section 409 of the Indian Penal Code. The case was made over to the Special Court at Purulia and the trial of Special Case No. 05 of 1990 started. The charge was framed against the accused for the offence under Section 409 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. Before the learned trial court, as many as five witnesses were examined. P.W. 1, Subrata Chattaraj, the de facto complainant, P.W.2 Radharaman Kumar who was the postmaster of Purulia Post Office at that relevant point of time, P.W.3 Sunil Mahato, son of Bhutu Mahato (who died even during the pendency of the trial), P.W. 4 Bholanath Mondal who was then posted as In-Charge of Complaint Inspector of Post Offices under the Superintendent of Post Offices, Purulia and P.W.5 Subodh Chaki, that is the Investigating Officer who was attached to District Enforcement Branch. The defence did not adduce any oral or documentary evidence. The defence did not adduce any oral or documentary evidence. In examination under Section 313 of the Code of Criminal Procedure, the accused admitted that at that point of time he was attached to the said Post Office as Postmaster, that he received Rs.2500/- on 06-09-1985 from Bhutu Mahato to be deposited in his account but he claimed that he duly recorded the said receipt in the entries of the office book. As regards the extra judicial confessional which was written by him the accused appellant took the defence that he was scolded by P.W.1 and he was also threatened with order of dismissal and this accused while answering the question no.8 said “ I do not know how he obtained (confession)”. The accused-appellant did not dispute that S.B Account no.22686 was in the name of Bhutu Mahato. Thus, the positive case of the accused convict was that he received the said amount from Bhutu Mahato to be deposited in that account and he also deposited the same and duly entered such entries in the office record. This witness in 313 examination claimed while answering question no. 4 that all the incident about which he was asked did not take place in his presence. Answer given by the appellant in question no. 15 shows that the accused got his employment as a Primary School Teacher and at that time he was well aware regarding the present incident. Learned trial court after appreciating the oral and documentary evidence convicted the accused and I have already stated the sentence imposed. After the oral argument was closed, one written argument was filed on behalf of the appellant alleging inter alia that the charge framed under Section 409 of I.P.C. was defective one as it would have been framed under Section 403 of the I.P.C. It was also taken up in the written note of argument that there was delay in lodging of the F.I.R and that the accused being a government employee sanctioned order was a must before the lodging of the F.I.R. As regards the extra-judicial confessional statement made by the accused to the de facto complainant, it has been submitted in the oral argument that he was not examined by any handwriting expert before it was marked as Ext. that an extra-judicial confession has very little role in a criminal trial and that as per law no confession whether it is extra-judicial or judicial cannot be taken care of as evidence after the initiation of a proceeding as one person cannot be made to be witness against him under Article 21(3) of the Constitution. In the written argument, it has also been claimed that the evidence of P.W.1 was not corroborated by other witnesses, that this witness candidly deposed that generally because of heavy pressure of work the Postmaster of different post offices cannot enter into the ledger all the entries on day-to-day basis and as such, this statement will destroy the entire prosecution case. Regarding the lodging of the F.I.R. by P.W.1, it has also been claimed in the written argument that P.W.1 denied that he lodged the F.I.R. upon the pressure of the higher authority but he also admitted that the F.I.R. was drawn only after obtaining the permission from the superior authority. Thus, the defence has prayed for acquittal of the accused. In counter to all this, Mr. Dutta, learned Advocate, appearing on behalf of the State also submitted a written note of argument and according to him, there was no delay in lodging the F.I.R. as it took time to unearth the crime to make it necessary and thereafter to decide regarding the filing of the F.I.R. One point was taken in such note to convincing this Court that Extra Departmental Branch Postmaster is a public servant in terms of Section 21 of the I.P.C. Mr. Dutta submitted that it is true that this point was not raised before this Court but on a similar fact as decided by Allahabad High Court as reported in 1975 Cri.L.J. 1122 in the case of Shob Nath –vs- State, it was held that such an Extra Departmental Staff is a public servant within the meaning of Section 21. He submitted both orally and through the written notes that there is enough evidence and also admission on the part of this appellant that on that point of time the accused was such an Extra Departmental Postmaster. He submitted both orally and through the written notes that there is enough evidence and also admission on the part of this appellant that on that point of time the accused was such an Extra Departmental Postmaster. He took me the evidence of P.W.1 and P.W.3 to show that such amount of Rs.2500/- was received by this appellant but that was not deposited in the documents of the post office even though the necessary entries were made in the passbook which thereafter was handed over to the son of Sunil Mahato (P.W.3). As to the defect in framing of charge it was his argument that there was no defect in the framing of charge and the ingredient of the offence punishable under Section 409 were duly mentioned in the body of the charge and as such, there was no failure of justice. Regarding the confessional statement of the appellant, Mr. Dutta submitted that such statement was duly taken care of by the learned trial court when the accused was examined under Section 313 of Cr.P.C. and the accused answered that he had to right it as P.W.1 scolded him. He submitted that there is no reason to disbelieve the confessional statement which is very much admissible in evidence. He further submitted that Article 21(3) of the Constitution cannot be a bar regarding the admissibility of this extra-judicial confessional statement of the accused-appellant. As regards the mens rea, it was his submission that this accused received the amount but did not enter the same in the books of account and this is enough mens rea to constitute a crime under Section 409 of the Code. Mr. Dutta also took me to internal page no.8 of the judgement to show further that in materials Ext. 1(c)(a)(i) there was interpolation and at first the said amount was entered in the said journal of the Savings Bank Account of that sub post office but thereafter those entries were struck out by the accused with his signature. He also referred to the evidence of P.W.1 on this point at page 10 of the paper book wherein the said witness also deposed to substantiate the claim of the prosecution. As regards subsequent deposit of the misappropriated or defalcated amount by the accused-appellant on a subsequent date cannot wash out the act and charge of misappropriation or defalcation and it cannot absolve him of the criminal liability. As regards subsequent deposit of the misappropriated or defalcated amount by the accused-appellant on a subsequent date cannot wash out the act and charge of misappropriation or defalcation and it cannot absolve him of the criminal liability. Thus, Mr. Dutta submitted that the learned trial court rightly convicted the accused-appellant in respect of the charge under Section 409 and that be retained. In reply it was submitted by the learned defence counsel on the point of enhancement of sentence that the rule was not served, that the accused appellant is a senior citizen, if the nature of the offence and the fact and circumstance of the case is considered then this court may conclude that it is not an exceptional case in which sentence imposed be enhanced. He cited the decision of this court as reported in (2011) 2 CLJ 650 (Md. Faiaz @ Faiz vs. State of West Bengal). I have taken stock of the argument submitted by the learned Advocates of the parties, perused the judgment of the trial court considered the oral and documentary evidence adduced by the prosecution and also the answers given by the accused appellant in his statement under Section 313 Cr.P.C. The evidence on record shows that PW 3 gave Rs.2500/- to the accused appellant and the said amount was duly entered into the passbook. The evidence of the postal employees like PW 1, PW 2 and PW 4 have duly proved supported by documentary evidence that the said amount was not entered into the book of accounts of the postal department. The accused appellant made written extra judicial confession marked as Exbt. 5. He admitted that in his examination under Section 313 Cr.P.C but claimed that he was scolded by PW 1 and he also threatened him that he would be sacked. This statement was absolutely false as when confessed he had already resigned as the Extra Departmental Post Master and joined as a primary school teacher. I have nothing to disbelieve this extra judicial confessional statement. This gives further weight to the prosecution case. As to the argument of the defence that such confessional statement is hit by Article 21(3) of the Constitution I am of the view that if such confessional statement is hit by such Article then ‘admission’ or ‘confession’ matters as enacted in Indian Evidence Act ought to have been declared ultra vires within these long years. As to the argument of the defence that such confessional statement is hit by Article 21(3) of the Constitution I am of the view that if such confessional statement is hit by such Article then ‘admission’ or ‘confession’ matters as enacted in Indian Evidence Act ought to have been declared ultra vires within these long years. As regards the argument of the defence that no sanction was awarded before proceeding with the appellant under Section 409 of the Code this court is of the opinion that criminal breach of trust committed by the public servant is not an protected act under Section 197 of the Cr.P.C. Such act cannot be said to be in discharge of official duty. Thus, the argument has no leg to stand upon. The point of no ‘mens rea’ or the failure on the part of the accused to enter into the ledger due to heavy pressure of work will not come in the rescue of the appellant. It is difficult to fathom what was in the mind of the accused at that point of time. The pressure of work as supported by PW 1 cannot be agreed supported by the fact that he did not make it up within the next few days. The offence was committed on 06.09.1985 and the FIR was lodged on 04.04.1987. The accused resigned from the said job on 12.04.1986 but did not make good the loss till he in total Rs.2500 in phase respectively on 27.02.1987, 24.03.1987, 06.11.1987 and 29.01.1988. He even did not pay the penal interest of Rs.557.This shows how much adamant he was and his only intention was to grab public money. He was fortunate to continue with the new job as a school teacher. The lower court will show that this accused tried to delay the proceeding with this hope that if a criminal trial is delayed than half of the battle may be won. This court is not unmindful of the observation made by the trial court in internal page No.8 “It is the evidence of the PW 1 that on 06.09.1985 PW 3 deposited a sum of Rs.2500/- in the Branch Post Office and accused Saktipada Bouri made entry on the said deposit in the Branch Office S.B. Journal but scored out and he did not incorporate the said amount in government account. Mat Ext. Mat Ext. I© (a) (i) also proves that the accused Saktipada Bouri then then Branch Post Master of Rajnowagarh Branch Post Office entered the particular of deposit of Rs.2500/- showing dated 06.09.1985 in the journal of the Savings Bank Account of Rajnowagarh Branch Post Office but afterwards those entries were struck out by him with his signature. Therefore, on consideration of the evidence of the PW 1 and Mat Ext I (c) (a) (i) I hold that there was intention on the part of the accused to retain the amount of Rs.2500/- permanently and that intention of the accused was not bona fide but mala fide and it does not indicate an honest motive.” This circumstance will add further feather in the cap of the prosecution as regards the dirty mind of the accused. As regards the argument of the defence that the charge ought to have been framed under Section 403 of the Code this court is of the opinion that the fact disclosed from the police papers did rightly reveal that it was an offence punishable under Section 409 of the Code. I find no defect in the framing of the charge. The argument of the defence cannot be conceded by this Court. Regarding the argument of the defence long delay in lodging of the FIR this court is of the view that in such a case the departmental enquiry was made and when the department was satisfied regarding the existence of prima facie case as against the present appellant only thereafter the FIR was lodged on 04.04.1987 and this cannot be treated as delay rather it be treated as a guard against his false implication instantly. Thus, considering the discussion so long made this court is satisfied that the accused appellant was rightly convicted in respect of the charge punishable under Section 409 of the Code. Thus, finding of guilt is hereby confirmed. Now the question is whether the sentence imposed is to be enhanced in view of the rule issued by this Court. Much was argued by the learned lawyer appearing on behalf of the present petitioner as against the enhancement rule. The fact remains that this accused is now more than 60 years. He has been facing this legal battle since 1987. This Court is not unmindful of the fact that he was also a party for this delayed trial. Much was argued by the learned lawyer appearing on behalf of the present petitioner as against the enhancement rule. The fact remains that this accused is now more than 60 years. He has been facing this legal battle since 1987. This Court is not unmindful of the fact that he was also a party for this delayed trial. The learned trial court sentenced the appellant to suffer rigorous imprisonment for 5 year and also directed to pay fine of Rs.1000/- in default to suffer rigorous imprisonment for six months more. Considering the nature and gravity of the offence about which I have discussed in details I think that there is no reason to enhance the punishment. Thus rule is answered in the negative. It was argued by the appellant that considering the age of the accused and this long legal battle the sentence be reduced. This is a case under Section 409 of the Code for misappropriation of Government fund but the amount was only Rs.2500/- and the said amount was recovered in the year 1988, except the penal interest portion. Thus this court is satisfied that the substantive sentence of 5 years be reduced to 4 years but at the same time the fine amount be enhanced to Rs.20,000/- from Rs.1000/- in default to suffer further rigorous imprisonment for 1 year. The period of imprisonment already undergone be set off from the period of substantive sentence. The convict appellant is enjoying bail as granted by this Court in CRAN No.2064 of 2010 as per order dated 09/06/2010. The said order of bail is hereby cancelled. The accused appellant must surrender before the learned trial court within 15 days from the service of notice to be effected by the Officer-in-Charge of Kenda Police Station, District Purulia. Failure to do so will entitle the trial court to issue warrant of arrest as against the present appellant to serve out the sentence as mentioned above. The trial court on receipt of the record communicate the ordering portion of the order to the Officer-in-Charge of Kenda Police Station, District Purulia for compliance. Department is directed to transmit the LCR along with a copy of this judgment forthwith to the learned trial court. The appeal is thus answered in part and disposed of accordingly without any costs.