P.T. Joseph vs State

H.R. Krishnan, J.—The Appellant, who was a clerk in the Bhopal General Post Office, was found to have fraudulently converted to his own use the value of five postal orders of Rs. 10 each, a total (including the commission-charge) of Rs. 50-50 n. P. He has, therefore, been convicted u/s 409, I. P. C., and for criminal misconduct u/s 5(1) (c) and sentenced to concurrent terms of one year rigorous imprisonment and a fine of Rs. 300 under each of the two counts, (a total of Rs. 600) with further imprisonment in default. The argument here is, firstly that it was a case of innocent mistake, under pressure of work and not one of conversion; secondly, on a point of law, that res gestae being the same, conviction under both the sections i. e., S. 409, I. P. C., and S. 5 (2) of the Prevention of Corruption Act, was illegal. It is contended that this will have some practical consequence in respect of the fine; the substantive sentences being concurrent, there is no practical consequence in that regard.

The Appellant was selling postal orders and was expected to maintain and did actually maintain a journal i. e., a memorandum of the sales and the money realised. At the end of the day, the realisations are deposited and he continues to be responsible for the postal orders left over. Out of those sold on 8-4-1960, the sale of three postal orders of Rs. 10-10 n. P. each, was not shown on the journal. Similarly, on 16-4-1960, two such orders were not shown. Thus there was a shortage in the price of the postal orders of a total of Rs. 50-50 n. P. One of the checks imposed by the department itself is a Count at the end of each day by the post master; but he did not count and these losses or conversions were detected during an inspection on the 23rd.

The defense is that the Appellant was much overworked and instead of writing the journal straightway, he used to keep rough memorandum during the actual sales and copy it out in the journal at the end of the day. This does not explain the losses. So his further explanation is that in hurry of work it might have happened that more postal orders were passed out by wrong count or the money was not realised. On the day of the count itself, that is, on 23rd, there was a shortage of one five-rupee and one one-rupee postal order and an excess of a four-rupee postal order. For these, he has not been charged; but the Appellant has referred to these to show the possibility of mistakes in good faith.

Authority has been shown from a number of rulings that a person cannot be convicted for mere negligence in the discharge of his duties and that where the explanation is intrinsically reasonable, the appellate Court must accept it even though the trial Court may have not considered it satisfactory. These general principles being unexceptional, it is unnecessary to discuss those rulings. The facts however, vary from case to case. In a case of this nature, if the employee reports to his superior the loss of the money or goods or the postal orders of has own accord, then it would be a case of good faith and the worst he would suffer is being called upon to recoup. In every post-office, certain counts and checks have to be made at the end of the day, some by the persons entrusted with the stamps, bonds and postal orders, and others by their superiors. In fact, the work with the public is stopped some time before the proper closing of the office, the interval being used for the purpose. The employee has necessarily to make a count as he closes his journal and enters his balance. If he shows a larger balance of postal orders in the corresponding shorter realisation it may be either the result of negligence or conversion. Either way, it would be discovered when the journal is completed. Whether it is done straightway or after making a rough copy, makes no difference because when the journal is finished, the employee has to show the total sale and the balance in hand. In the event of a shortage, he should go at once to his superior and point it out so that nobody would charge him with conversion.

In the instant case, the shortages were of the 8th and of the 16th and were never brought to the notice of the officers. They were detected in course of the inspection on the 23rd. It is impossible to understand, in these-circumstances, the explanation that there was an in advertant loss during the rush of the business. The journal at the close of the day is a certificate by the clerk concerned that he has so much in hand as unsold postal orders and so much money as sale proceeds. If for days on end, he does not count and still gives an incorrect return, that itself is an indication of conversion. For these reasons, I hold that he was rightly convicted.

The wording of the operative sections of the Prevention of Corruption Act is such that certain offences like receiving gratification, criminal breach of trust committed by public servants, would automatically become misconduct u/s 5. The principle embodied in Section 26 of the General Clauses Act is that there cannot be two sentences under two different sections on the same set of facts. Looked at that way, in principle separate sentences (but not separate convictions) under a section of the Indian Penal Code and again u/s 5 of the Prevention of Corruption Act, would not be legal; this actually is the view taken in a few cases by the Madras High Court (e. g. in re P.S. Aravamudha Iyengar- A. I. R. 1960 Mad 27). On the other hand, Section 5(4) of the Prevention of Corruption Act, has the effect of making misconduct an altogether separate offence. From that view-point, it may be that even separate sentences would be proper. From a purely academic view-point, the problem is no doubt interesting; but often there is no practical effect, and none in this case. The substantive sentences are concurrent. The total fine of Rs. 600/- with imprisonment in default for six months in all, is such as could be imposed under either of the two sections. I would, therefore, leave this question open for fuller examination in time in an appropriate case. The convictions and sentences are upheld and the appeal is dismissed.