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Judgment
S.S. Dewan, J.
Kirpal Singh, petitioner, who at the material time was working as a SubInspector in Punjab State Civil Supplies Corporation Ltd., (for short, Punsup) centre at Dunera, was brought to trial on the charge under S. 409, Indian Penal Code, before the Judicial Magistrate Ist Class, Pathankot and having been found guilty thereunder, was sentenced to 2 years rigorous imprisonment and a fine of Rs. 1000/. On appeal, the learned Additional Sessions Judge, Gurdaspur, in a considered judgment adverted to the prosecution case and upheld the conviction and sentence imposed on the petitioner. He has now come up in revision.
The facts giving rise to this revision are in a very narrow compass. While being posted as a SubInspector in Punsup at Dunera centre, the accused collected an amount of Rs. 2269.93 from different shops of the Punsaup and those amounts were not deposited by him in the Bank. He thus misappropriated the amounts which belonged to the Government. When it was discovered that he had collected the aforementioned amount but had not deposited the same in the Bank, the present can against the accused was registered. It is said that during the investigation of the case, the accused was asked to give his specimen signatures but he refused to give his signatures. In support of its case, the prosecution examined as many as 13 witnesses. When examined under S. 313, Criminal Procedure Code, the accused admitted the facts that he was posted as SubInspector in Punsup at Dunera on 11.11.1977 and that it was the duty of the Inspector to collect money from the Punsup shops but denied the other allegations of the prosecution. He, however, led no evidence in defence.
It is contended on behalf of the petitioner that the prosecution had failed to prove the entrustment of the alleged embezzled amount to the petitioner and also the mode of misappropriation. The submission appears to be misconceived. On a charge under S. 409 Indian Penal Code, it is not necessary for the prosecution to prove in what manner money alleged to have been misappropriated, had actually been disposed of by the accused. If it is shown that the money entrusted to the accused was not accounted for nor returned by him in accordance with his duty, if unspent, it lies on the accused to prove his defence. Although the proving of entrustment of money rests on the prosecution, if it is proved that the accused was not in possession of the amount entrusted to him, it is for the accused to prove satisfactorily that he had not embezzled or misappropriated the amount. If the prosecution proves its case, the accused must prove his defence as would carry a reasonable belief. In this case there is ample evidence of entrustment of the aforementioned amount to the petitioner as a public servant. Then there is the evidence of Vijay Kumar, P.W. 12, who was working as a Junior Auditor in the Punsup. He has categorically stated that the amounts which were collected by the petitioner from different shops were not deposited in the Bank.
The next argument laboured with little persistence on behalf of the petitioner was that no prosecution can be launched against a government servant if he has committed any offence in the discharge of his official duty except with the previous sanction of the government by which he had been appointed. I find no substance in this contention. As regards the sanction of the competent authority as envisaged in S. 197 of the Criminal Procedure Code, it may be observed that defalcation or misappropriation of the property entrusted to a public servant is not part of his duties and in doing so he is not acting in the discharge of his duties and, therefore, the question of prior sanction for prosecution does not arise. Their Lordships of the Supreme Court in Harihar Prasad etc. v. State of Bihar, (1972) 3 SCC 89, negatived a similar contention by observing that it was not part of the duty of a public servant while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and want of sanction under S. 197 of the Criminal Procedure Code, is therefore, no bar to a prosecution under S. 120B read with S. 409, Indian Penal Code.
Mr. Walia appearing for the petitioner, sought to sustain his submission from Single Bench decision in The State of Haryana v. Iqbal Singh, 1978 Cri.L.J. 46 and Ram Kishan v. The State of Haryana, 1981 C.L.R. (Pb & Har) 624. I have gone through these authorities and I am of the considered view that these cases are clearly distinguishable and the ratio thereof is not applicable to the facts and circumstances of this case. In these cases, the decision of the Supreme Court in Harihar Prasad''s case, (supra), has not been considered. In view of the authoritative decision of the Supreme Court on the point, the authorities cited by Mr. Walia shall be of no assistance to him. No other point was urged.
Inevitably, a prayer has been made on behalf of the petitioner for reduction in the sentence. Emphasis is laid on the fact that the occurrence took place in the year 1979 and that the petitioner has lost his job. Keeping in view the fact that the petitioner has lost job and the case is quite an old one, there is marginal scope for reduction in the sentence. I accordingly reduce his sentence of imprisonment to one year. The sentence of fine, with its default clause, shall, however, remain. With this modification in the sentence, the revision petition fails and is herein dismissed.
Revision dismissed.