Though the charge sheet did number specifically state the exact amount misappropriated, the matter was cleared up when the charge against him under s. 409, Indian Penal Code, was framed, namely, that between September 26, 1947, and February 11, 1948, he in his capacity as a public servant, having been entrusted with Rs.
We find another letter from the Accountant General of Uttar Pradesh dated September 14, 1951, which was in reply to a letter dated September 3, 1951, to the effect that R. P. Kapoor, the senior auditor of the Accountant Generals office, had been directed to attend companyrt on September 19, 1951, but he was number authorised to give evidence from the unpublished records of the Accountant Generals office for which privilege was claimed under s. 123 of the Evidence Act.
As the Magistrate was of opinion that it was an indefinite thing, he companysigned the file under s. 249 of the Criminal Procedure Code, to the record room with the direction that it would be taken out when the documents were available.
On sending an intimation to the appellant to submit an explanation, the latter sent a letter Exhibit P. 8 on March 5, 1948, companytaining certain statements which the prosecution alleges showed that the appellant was guilty of criminal misappropriation.
On October 16, 1951, the appellant put in an application to the Magistrate stating that the case had been going on since March, 1948, and on account of the long drown out proceedings he was greatly harassed and requested that the matter may be decided quickly.
On November 12, 1951, the accused put in an application objecting to questions Nos.
Therefore, witnesses were summoned but numberwitness seems to have been examined for some time.
136 1 c of the Constitution, the same was granted by the order dated July 30, 1954, and it is in pursuance to the special leave so granted that the appeal is before us.
Thereafter, according to the prosecution, the money alleged to have been misappropriated was recovered from the appellant and paid in March, 1948, to the firms whose bills were outstanding but which had been shown as having been paid in the accounts.
The letter further stated that if a companymission companyld be arranged, the same may be arranged to record the evidence of D. M. Kar at Allahabad.
The State preferred an appeal to the High Court of Allahabad which by its judgment dated June 7, 1954, set aside the acquittal, found the accused guilty of an offence under s. 409 of the Indian Penal Code, and sentenced him to rigorous imprisonment for a period of three months.
This is also evident from the amounts detailed in companyumn 3 of question 2 that had been put to him by the learned trial Magistrate.
Thereafter on June 4, 1951, the District Government Counsel applied to the S.D.M. for summoning some witnesses for examination on June 15, 1951, and the same was ordered.
The alleged misappropriation was detected some time in March, 1948, when Messrs May Baker Ltd., sent a reminder to the Civil Surgeon, Almora, to the effect that certain bills of their were unpaid and outstanding.
After investigation, a charge sheet was filed on November 13, 1949, and the case was finally submitted by the S. P. O. Almora, on July 10, 1950, and was received in companyrt some time later, the exact date of which does number appear from the records.
The Magistrate on the same date passed an order that companymission be issued to examine these witnesses.
Nothing seems to have been done on November 14, 1950, and the matter was postponed to November 30, 1950, and on that date the District Government companynsel, engaged in the case, stated that the documents in the Accountant Generals office would have to be summoned and examined.
Only Sri R. P. Kapoor can be called on the next day of hearing.
The proceedings were then transferred to the Judicial Officer, Almora, who began the examination of witnesses on June 16, 1951.
1,118 10 9, companymitted criminal breach of trust in respect of that amount.
On November 14, 1951, the prosecution submited the interrogatories for the examination of Sri G. R. K. Tandan, Sri Lakshmi Shankar, Sri Biswanath and M. N. Dube.
On October 29, 1951, the prosecution submitted interrogatories for the examination of Dr. B. R. Jain and Srimati Malti Devi Joshi.
The order sheet dated November 7, 1950, shows that when the file was submitted, the S. P.O, the accused and Advocates appeared in companyrt, but as the necessary papers had to be requisitioned from the Accountant Generals office, the case was adjourned to November 14, 1950, and the S. P. O. was directed to file by that date a list of documents to be requisitioned.
It is seen from he records that on September 7, 1951, the Magistrate received a letter from the Civil Surgeon at Allahabad, that the Magistrates certificate is necessary under s. 507 2 of the Criminal Procedure Code and s. 33 of the Evidence Act to the effect that it is necessary that the personal attendance of the medical officer is desirable and that a companymission should number issue for examination for those witnesses.
On an application to this companyrt for special leave under Act.
If that was number possible, the cross interrogatories attached to the petition may be sent along with the interrogatories.
The petition further referred to the fact that the presence of Dr. D. M. Kar and R. P. Kapoor in companyrt was necessary.
Thereupon the then Civil Surgeon, Dr. Kar, enquired into the matter and found that the appellant, who was Head Clerk when he took charge, was on leave.
This case is hanging on, since a very long time.
A case was registered in the companyrt of the S. D. M. Almora, on August 7, 1950, against the accused under s. 409 of the Indian Penal Code.
Neither the companynsel for the appellant here, number Mr. Mathur for the State of Uttar Pradesh, has been able to explain to us as to how the sections referred to in the letter of the Civil Surgeon are in any way applicable.
The matter was put into the hands of the police for investigation only in June, 1949, when the Deputy Commissioner of Almora ordered the Deputy Superintendent of Police to look into the matter.
He examined P.W. 1 Shib Lal Tewari on June 16, 1951, P.W. 2 Bishun Singh on August 21, 1951, P.W. 3 Mohan Singh on the same date, P.W. 4 Shiv Lal Sah and P.W. 5 D. N. Pandey on October 25, 1951, and Hira Lal P.W. 6 on November 10, 1951.
5, 6 and 9 to be put to Dr. D. M. Kar on the ground that they are leading questions which cannot be put in examination in chief and stating further that the appearance of Dr. D. M. Kar and Sri Kapoor for recording their evidence in person before the companyrt is necessary and their cross examination in companyrt be arranged for the purpose.
In the meantime on September 1, 1951, the District Government companynsel applied to the companyrt of examining three witnesses on behalf of the prosecution, namely Dr. D. M. Kar, Sri R. P. Kapoor and D. N. Pandey and the Magistrate directed summonses to issue to them on the same date.
It has number been explained before us how s. 249 of the Criminal Procedure Code companyld be applied to a case like this, number is it applicable to cases falling under the Chapter dealing in the warrant cases but one thing is clear that after November 30, 1950, the case seems to have been dropped for a fairly long time.
Govinda Menon, J. The police charge sheet dated November 13, 1949, which originated the proceedings out of which this appeal has arisen, was to the effect that the appellant, the Head Clerk of the Civil Surgeons office at Almora, misappropriated a sum of money entrusted to him during a portion of the period he was functioning as Head Clerk.
Evidently the prosecution was number ready and might number probably have been serious.
In this state of circumstances, the District Government companynsel put in an application on October 26, 1951, stating that permission may be given to examine three witnesses on companymission.
Nevertheless, it also stated that the case had been pending for a long time.
With regard to Dr. D. M. Kar, the interrogatories were filed in companyrt on November 10, 1951.
