Barman, J.
1. Khetra Mohan Singh, contingent Bill Clerk attached to the Bacteriologist section of the Veterinary Directorate, Government of Orissa, was acquitted of the charge of having committed criminal breach of trust in respect of Rs. 700 admittedly entrusted with him by the Treasury Sarkar in the Office of the Director of Veterinary Services, Orissa, Cuttack. The defence of the accused was that he handed over the money to the Drawing Officer of the bill in question.
2. On March 26, 1961, the accused gave for encashment a contingent bill for Rs. 700 to the Treasury Sarkar in Cuttack Veterinary Office. The treasury Sarkar drew the amount from the State Rank of India, Cuttack and made over the entire amount of Rs. 700 to the accused on the very date he received the money from the Bank. On March 28, 1961 the accused had given a receipt Ex. 1 in favour of the Treasury Sarkar for the said amount, The prosecution case is that the accused Bill clerk did not hand over the Bill amount of Rs. 700 to the Drawing Officer M. K. Patro, P. W. 6 nor did the accused account for the same. In due course the suspected misappropriation of the money by the accused was brought to the notice of the Officer-in-charge, Mangalabag Police Station, Cuttack. Thereafter the accused was charged with having committed an offence punishable under Section 409, Indian Penal Code and tried by the learned Magistrate. 1st Class, Cuttack who acquitted him.
3. In his statement under Section 364, Criminal Procedure Code the plea that the accused took was:
On the date of drawal of the Bill, I was asked by Sri M. K. Patro (P. W. 6) to make over the amount to him 'as some representation was expected that day. I accompanied P. W. 1 (Treasury Sarkar) with the bill to make corrections if necessary on the bill. After encashment, I received the amount from P. W. 1 and was handing over it to M. K. Patro who told me that no representation had come that day and that the amount should be with me. He told me that he would take the money from me on his requirement. On 24-4-1961 I got fever and took leave. I got some erruptions on my body resembling pox. I then went to Biswanath Mohanti, the P. A. to Director with an application Ex. A. I met M. K. Patro and offered him the amount. I made over the amount (Rs. 700) to him and demanded a receipt. I took a piece of torn paper from his waste paper basket and seribed the receipt on which he put his initial and date. I have not misappropriated this amount or had any intention to do so. On return from leave, I again worked in Contingent Bill Section. After some days I was transferred to Miscellaneous Section. I then made over the Contingent Bill Section to Kishori Mohan Das. I proceeded on leave thereafter to my house as my mother was ill. During the illness of my mother, I received letter from Director and could not come personally leaving my ailing mother. I gave a reply in my worries. My mother was bed-ridden for a long time in cancer and tumour and as none else was there to attend upon her besides myself. I was passing my days in worry. Although I received letters from M. K. Patra and Director, I could not meet them leaving alone my ailing mother. My mother expired on 10-4-1962. T did not see M. K. Patra near Mangalabag as stated by him, I have received no order from Director making me duty bound to maintain Cash Book and Account Book of Bacteriologist Dept.'
4. Do the circumstances brought out in this case show that the defence case is probable The question is one of intention and not a matter of direct proof but if the accused gave a false account of what he had done with the money received by him it may be treated a strong circumstance against the accused. The elements of criminal offence of misappropriation will be established if the prosecution proves that the accused received the money, that he was under a duty to account and had not done so. It is enough to establish facts which give rise to a suspicion and then to throw the onus on the accused to prove his innocence. In a case like this depending on the conclusions drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offence home to him beyond any reasonable doubt.
5. In support of the alleged plea of payment to the Drawing Officer, the accused relied on the receipt Ex. G, dated April 22, 1961. The receipt which is alleged to have been given by the Drawing Officer reads thus:
'Received Rs. 700 (Rupees seven hundred fromSri K. M. Singh, towards the contingent advanceBill No. 1 of 1960-61 which was kept with him.Sd. M. P. 22/4 '
The defence story now is that it was on April 29, 1961, that the accused who at the time was on leave, had gone to the office and handed over the money to the Drawing Officer, P. W. 6 who signed the receipt with his initial 'M. P.' under date '29/4' in the manner as appears from the receipt Ex. G. The contents portion of the receipt was written by the accused himself said to have been at the request of the Drawing Officer. This is the defence version of the receipt Ex. G.
6. The accused did not call any witness in support of his story nor did he choose to get himself examined under Section 342-A, Criminal Procedure Code to give evidence on oath in disproof of the charges against him which could have been used as a substantive evidence in support of his case.
7. The Drawing Officer, Mohit Kumar Patra P. W. 6 totally denied having executed the alleged receipt Ex. G. His evidence on this point, so far as material, is this:
'M. O. I (Ex. G) is not the receipt granted by me to the accused. The initial on MO. I appears to be of mine. I put such type of initials over Daks received by me and I presume, this piece of paper containing MO. I is a portion of some Dak on which I had put by initial and sent it to the accused. Since MO. I is a torn piece of paper and my initial does not contain the year, I say that this is not a receipt granted by me.
* * * *Whenever a receipt for money is given by me, it is always either in my own handwriting or typed bearing my full signature. 'M. Patra' is my full signature and on bills T put this full signature of mine. 1 also put my full signature in the Drawal Books when I receive the amount. .
I put my initial 'M. P.' in the Bill register. Ex. 7/1 contains my initial 'M. P' with date 26/3. It (is)means the initial in my hand-writing. Difference of letter 'P' is only visible between my initial Ex. 7/1 and M. O. T. I cannot deny altogether if T am suggested that the initial 'M. P' on M. O. I is mine.
* * * *It is not a fact that the accused wrote out the contents in M. O. I and put my initial there. Since he has not appeared before me his writing outM. O. T does not arise * * *
I see M. O. I for the first time in the Court to-day.'
8. The circumstances on which the accused relies in support of his alleged plea of payment to the Drawing Officer P. W. 6 are these: It is said that it is apparent from the accused's leave application Ex. A that he personally brought the application to the office on April 29, 1961. It was on that occasion that he handed over the money to P. W. 6 and got the receipt Ex. G. The signature of P. W. 6 on Ex. G is admitted. There is no evidence that Ex. G is part of a Dak torn out: the counter-part of the paper on which Ex. G was written is not in evidence, The defence also commented on the unusual anxiety on the part of P. W. 6 in writing letters to the accused and even going to the accused's village in connection with the money. It is also alleged that the past conduct of P. W. 6 is not free from suspicion: hence he is not a reliable person.
9. All these defence contentions lose their force as based on mere conjectures and surmises and not on evidence. The leave application Ex. A only shows that it was filed in office on April 29, 1961. None of the defence witnesses say that the accused came to the office personally with the leave application. In fact, the accused is said to have been suffering from small-pox at the time, and thus was not in a position to come to the office personally. The alleged visit of P. W. 6 to the accused's village was rightly explained in that P. W. 6 in course of his usual tour stopped at the accused's village and demanded payment The anxiety to recover the money from the accused is not unusual on the part of P. W. 6 his superior officer. The letters were also written by P. W. 6 demanding the money in the usual course. The alleged previous conduct of P. W. 6 in the present context are only extraneous matters not relevant for deciding this particular case.
10. The staggering circumstance against the accused is his silence about the receipt Ex. G. in his replies to the different letters written from the office demanding the money as hereinafter discussed.
11. The first of these letters is dated July 16, 1901, Ex. 15 written by the Deputy Director to the accused stating, that a sum of Rs. 700 was lying with the accused on account of contingent advance money drawn in March 1961 and that the Government has ordered that this money has to be refunded into the treasury. By the said letter the accused was ordered to hand over the money so that it can be deposited on the 17th July 1961 positively if not on the 15th July. 1961. The accused was threatened with disciplinary action in case of failure to comply with the said order. In reply to the said letter the accused wrote a letter Ex. 16 merely stating that he was not in charge and had got nothing to hand over to the Deputy Director at the time of proceeding on leave. In this letter the accused did not mention about the receipt Ex. G, dated April 29, 1961 which, if genuine, ought to have been in possession of the accused and he would have mentioned about it. It is inexplicable why the accused did not even mention about this receipt which would have been a complete answer to the demand for money from him.
12. On October 3, 1961 the Deputy Director P. W. 6 wrote a letter to the Veterinary Stockman Ex. 9 requesting him to proceed to the village of the accused and hand over the letter which was enclosed therewith and get a receipt from the accused to the effect. The letter so sent was received by the accused. On October 18, 1961 he wrote in reply a letter Ex. 10 stating that he was not given any charge in the office of the Bacteriologist and so he was not required to hand over any charge on that account as demanded and further that he had already handed over charge in the Department he was serving. In this letter also the accused did not refer to the receipt Ex. G.
13. Then again on October 26, 1961 the Deputy Director P. W. 6 wrote to the accused a letter Ex. 11 referring to the insistent effects made by the writer of the letter for the settlement of the accounts by the accused. Yet the accused did not explain the accounts for which he had received the money from the Treasury Sarkar. This letter was sent by registered post and the Acknowledgment Receipt Ex. 12 shows that it was received by the accused. Still there was no reply by the accused to the said letter
14. It is also in evidence that in the meantime the Deputy Director P. W. 6 in his natural anxiety, as a responsible superior officer, for getting the money from the accused met the accused at Raghunathpur on October 12, 1961 when the Deputy Director was on tour in that area. It is also said that the Deputy Director contacted him thus on a previous occasion with a view to have the accounts settled up by the accused but all efforts failed Ultimately the matter was reported to the Police on February 27 1962 as aforesaid.
15. The first time the receipt Ex. G was introduced by the accused and it came into the picture was two months after the First Information Report in a representation made by the accused on April 23, 1963 to the Director Ex. F where the accused while seeking to explain the facts mentioned about the receipt which he stated he obtained from the Deputy Director Sri M. K. Patra, P. W. 6 to whom the accused handed over the amount. A copy of the receipt Ex. G was also enclosed with the said representation. As the investigation was then going on the police seized the receipt Ex. G on April 28, 1962 on production by the accused himself as per seizure list Ex. 6. It was on July 22, 1968 that in his examination under Section 342, Criminal Procedure Code the accused took the defence mainly relying on the receipt Ex. G all as quoted above.
16. It is abundantly clear that the receipt Ex. G was introduced by the accused in defence as an after-thought. If in fact he had this receipt in his possession it would have been a complete answer to the charge against him. The date of receipt April 29, without mentioning the year is also significant. That apart it is not understandable how the accused, while then on leave as suffering from small-pox, could be in a position to come to the office personally on April 29, 1961 as alleged. He was on leave from April 24, 1961 to May 17, 1961. It is further significant that none of the defence witnesses could say that the accused came to the office on April 29, 1961 nor had the defence called any other witness to prove the presence of the accused in the office on that date on which the accused is alleged to have handed over the money to P. W. 6 and obtained the receipt Ex. G as alleged. Nobody said that the accused came to the office on that date; he was suffering from small-pox; normally he would not be in a position to come to the office on that day.
17. The learned Magistrate's finding that the defence story is probable is based on certain presumptions and mere surmises without evidence. The reasoning on which the learned Magistrate acquitted the accused is this:
'So, it is not improbable that the accused might have paid up the money on 29-4-196.1 to P. W. 6 and obtained receipt Ex. G. The probability of the defence story is strengthened by the fact that P. W. 6 recommended earned leave for 24 days for the accused commencing from 24-4-1961 (Ex. G) knowing fully well that an incumbent is required to be relieved of the charge of cash if he is granted earned leave for more than 10 days. If the amount was retained with the accused till then he would not have ordinarily granted E. L. for 24 days. This obviously leads to the presumption that the accused might have handed over the amount before his earned leave was sanctioned.' In our opinion the presumption which the learned Magistrate had drawn is not borne out by the evidence and is apparently not correct. As regards grant of leave to the accused while the accused was still retaining the money, no question was put to P. W 6 in cross-examination, who had granted the leave, as to why he had given earned leave to the accused when he (P. W. 6) knew that the accused had not accounted for the money and misappropriated the same.
18. One other circumstance against the accused is the feet that he had not handed over the Cash Book which he had taken charged of. If the Cash Book had been produced it would have shown the alleged payment of the money to the Drawing Officer P. W. 6 and there would have been no necessity for the receipt Ex. G. It is clear from discharge report Ex. 21 that the accused had taken registers including the Cash Book of Bacteriologist and Contingent Register of Bacteriologist on February 26, 1958 when he took over charge. The evidence of the Drawing Officer P. W. 6 is that be did not check up verily the Cash Book as it was with the accused on the next day of encashment of the Bill. P. W. 6 also said that by Cash Book he means the Acquittance Roll. It is also the evidence of P. W. 6 that there is an order to the effect that the accused was duty bound to maintain the Cash Book, Account BOOK and to handle cash. In the normal course the Cash Book has to be countersigned. The accused had been in charge of the Cash Book since 1958. The successor to the accused who took over charge was called as a defence witness D, W. 1. This witness said that after handing over charge of the Contingent Section to him, the accused remained absent from office. The witness admitted that the accused did not hand over to him (D. W. 1) the charge of any matter of the office of Bacteriologist under the Director. This witness does not say that he received back the Cash Book from the accused.
19. It is thus evident that the accused has been suppressing the Cash Book of which he has been in possession. On this point the learned Magistrate's finding is this:
'About the custody of the Cash Book and bill register, no doubt, it is admitted under Ex. 21 that the accused received them in the year 1958 while he was an assistant in the Pathologist section. It is again admitted by prosecution that he was transferred to 'Bacteriologist office. There is no evidence showing the person to whom charge was given after he was transferred to another section. Since the prosecution has failed to produce any fact as a missing link it can be safely and ordinarily presumed that the accused might have handed over the registers to somebody else while he was transferred to another section.'
This again is not a justifiable presumption based on evidence. It is drawn from inferences based on mere surmises. It is not understandable how it can be inferred that the accused might have handed over the registers to somebody. In our opinion any conclusion on such surmises not based on evidence cannot be accepted as correct.
20. In the ultimate analysis, therefore, it comes to this: The execution of the receipt Ex. G which is the street anchor of the defence case has not been proved. Mere admission by P. W. 6 of his initials 'M. P.' with a date without reference to the year of the date on a torn scrap of paper the contents of which were admittedly not written by P. W. 6 does not amount to admission of execution of the receipt. Execution of a document means that the executant must have signed or put his thumb marie impression only after the contents of the document have been fully stated and read by the executant before he puts his signature thereon. The scrap of paper on which the alleged receipt was written and the nature of writing and the mere initial of P. W. 6 thereon are clearly suspicious features which make the defence story improbable. Thus the execution of the receipt has not been proved.
21. The attempted explanation in the statement of the accused under Section 342 Criminal Procedure Code is not evidence. The position might have been different if the accused had called a witness to prove that the receipt was executed in his presence. There is no such evidence. So, the receipt, as such, is not proved. In the absence of evidence, Ext. G cannot be accepted as a receipt for the alleged payment. We have only the initials 'M. P.' on a piece of paper. It is a sheet or blank paper with the said initials. The defence case cannot be accepted as reasonably probable.
22. The learned Magistrate had not kept in view the correct legal position as to what the execution of a document means. This is where his approach to the case was wrong. That apart, the non-mention about the alleged receipt Ext. G by the accused in his replies to the repeated demands for the money as aforesaid is also a strong circumstance against the accused.
23. The accused strongly relied on a decision of the Supreme Court in Bhagat Ram v. State of Punjab, AIR 1954 SC 621 where a Civil Nazir in the office of the Subordinate Judge, Hoshiarpur was charged that in his capacity as public servant he committed criminal breach of trust in respect of a certain sum of Government money. His defence was that it was the Subordinate Judge who had misappropriated the amount. In that particular case their Lordships of the Supreme Court allowed the appeal of the accused the Civil Nazir and the order of conviction passed by the High Court was set aside. The present case is however clearly distinguishable from the case cited above on facts. Indeed their Lordships of the Supreme Court in paragraph 11 of their judgment noticed that one of the outstanding features of that case was that the defence which had been put forward at the trial was one which had been very elaborately and categorically set out the very next day after the incident in Ex. P. W. 6/C. As their Lordships put it:
'One has only to read the whole of that letter closely and carefully to see that the great deal of detail that has been set out therein was very unlikely to have been an anticipatory false defence. The learned Judge of the Courts below have almost ignored this letter excepting to make a reference to it for the purpose of discrediting the defence.' In that particular case, the courts below had apparently not realised the significance of the fact that quite a number of details furnished in the letter had found ample corroboration from the very evidence of the prosecution witnesses. It is on this reasoning that the accused was acquitted of the charge in that case. The position here is however different. In the present case the accused did not even mention about the alleged receipt Ext. G in his replies to the repeated demands for handing over the money. For this and other distinguishing features the Supreme Court decision relied on by the accused respondent in this case does not help him.
24. In this view of the case the order of: acquittal passed by the learned Magistrate is set aside. He is convicted under Section 409 Indian Penal Code and sentenced to imprisonment for one year. The Government appeal is allowed.
Misra, J.
25. I agree.