Jogendra Lal Saha v State of Bihar and Others
Supreme Court of India

6 November 1990
C.A. No. 232 of 1974
The Order of the Court was as follows:
1. Appellant had entered into a contract with the State of Bihar in the year 1968 for a period of three years in the matter of appropriating tendu leaves from certain forests of the State of Bihar in the Dumka division stipulating to pay the price in three instalments spread over the three years for which the contract was valid. There is no dispute that the first annual instalment had been paid. Nor is there any dispute that the other two had not been paid. At a point of time when the third one had not become due and in regard to the second there had been default, proceedings under the Bihar Public Demands Recovery Act, 1914, were initiated for recovery of the two instalments on the requisition of the forest officer after adjustment of the security deposit and the price obtained at a re-auction. The appellant challenged the action taken in a proceeding u/art. 226 of the Constitution before the Patna High Court.
2. The Patna High Court by the impugned decision in Bhimrao Gururao Deshpande v. Prahlad Subbarao Mutalik Deshpande 1972 Indlaw PAT 68 dismissed the petition and upheld the action. That has led to this appeal by special leave.
3. The main stand taken in support of the appeal before us is that once the contract was rescinded, as would appear from the order dated April 18, 1969, (Annexure 'D') and the notice demanding the payment having not been complied with, the claim was actually for damages and not the balance of the sale price. Therefore, S. 82 of the Indian Forest Act, 1927 which authorises recovery of the amount as a public demand was not attracted and at the most the respondents were entitled to institute civil action with reference to the provisions of the Sale of Goods Act, 1930 and the summary procedure adopted was unauthorised and without jurisdiction.
4. Support for this stand is sought by learned counsel from a series of decisions of different High Courts. He has placed before us the view indicated by the Allahabad High Court in Firm Gobardhan Das v. Collector of Mirzapur 1956 Indlaw ALL 187, Dewan Chand v. State of U.P. 1970 Indlaw ALL 195, State of U.P. v. Deewan Chand , Nanak Singh v. State of U.P. , Bala Datt v. Union of India 1961 Indlaw MP 41, J.A. Dalmet v. State of Mysore 1964 Indlaw KAR 97 and in Prem Singh v. Bank of India. These are cases where reliance has been placed on authorities dealing with recovery of damages on the assumption that the situation is covered by the Sale of Goods Act, 1930.
5. We find that there is reference in the Allahabad decision in Virendra Kumar v. State of U.P. 1979 Indlaw ALL 230 to the provision of S. 83 of the Indian Forest Act but though the provision has been quoted full implication of it has not been brought out.
6. As a result thereof the legislative purpose in providing S. 83 in the Indian Forest Act has really been overlooked.
7. The two sections in the Indian Forest Act, 1927 may now be extracted:
"82. All money payable to the government under this Act, or under any rule made under this Act, or on account of the price of any forest produce, or of expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as it were an arrear of land revenue.
83. (1) When any such money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest Officer until such amount has been paid.
(2) If such amount is not paid when due, the Forest Officer may sell such produce by public auction, and the proceeds of the sale shall be applied first in discharging such amount(3) The surplus, if any, if not claimed within two months from the date of the sale by the person entitled thereto, shall be forfeited to government."
8. S. 83 in clear terms makes the liability of government the first charge on the forest produce sold. Sub-s. (2) authorises the Forest Officer to sell the produce by public auction and the proceeds of such sale to be applied first to satisfy the debt for which the charge is provided. Sub-s. (3) makes clear stipulation that if there be higher amount obtained in the public auction, that would be payable to the contractor. If the scheme u/ss. 82 and 83 of the Act are put together and kept in view, it clearly follows that the entire situation has been provided for by special legislation and there is no need to fall back upon the provisions of the Sale of Goods Act to deal with the claim. There is no quarrel that a special provision would keep away the application of the general law and contracts for the sale of forest produce have, therefore, to be covered by the provisions contained in these two sections.
9. The contract in question is in fact contrary to the scheme of this Act. It tries to take away the right of the contractor to be paid excess money earned on subsequent sale, though S. 83(3) of the Act authorises the contractor to claim the excess amount within the time stipulated. Some of the other terms under the contract also run counter to the provisions. When Parliament provides a special statute to cover a given situation, there is an obligation on the State while entering into contracts with citizens in regard to matters so covered, to follow the special procedure and obtain the protection which the law intends to confer in regard to such transactions instead of allowing its activities to run in a different direction.
10. In the view we have taken of the matter it must be held that the consideration which has weighed with the different High Courts in the decisions referred to above while dealing with the recovery of unpaid forest contract money to which Ss. 82 and 83 apply must be taken not to be good law.
11. It is not disputed that learned counsel for the appellant is right in his submission that the instalment relating to third year was not due when the requisition was sent or the certificate was signed. Therefore, the demand for that amount could not be included in the certificate. We might at this stage refer to the observations of the Privy Council in Baijnath Sahai v. Ramgut Singh where it has been pointed out that the certificate proceeding is of an extraordinary nature and compliance of the requirements of the statute should be meticulously done. At the foot of the certificate in Form No. 1 prescribed under the Act the Certificate Officer has to certify in the following terms
"I further certify that the above mentioned sum of Rs is justly recoverable and its recovery by suit is not barred by law."
12. In view of the fact that the third instalment had not fallen due by the date, the question of including that amount in the certificate did not arise. Therefore, the proceeding as taken was non-est in law in terms of the decision referred to above.
13. Since, this appeal arises out of a proceeding u/art. 226 of the Constitution, we do not propose to interfere in this matter in such a way as would unnecessarily benefit the appellant. The State's dues have got to be recovered on the admitted facts and if the certificate proceeding is quashed on technical grounds which are advanced in this appeal, the interest of the State would be prejudiced. We, therefore, dismiss the appeal relying upon Ss. 82 and 83 of the Indian Forest Act, 1927 and would make it clear that the liability of the appellant shall be confined to two instalments which were due for the second and third years in terms of the contract after setting off the security deposit and the amounts that have been recovered being Rs 2200 and Rs 28,000 respectively.
14. The Certificate Officer before proceeding further shall apply his mind to the facts and if necessary hear the certificate debtor, ascertain the exact due, make an appropriate amendment in the certificate as required u/s. 11 of the Act and proceed to recover the amount that he finds is still recoverable under law. The appellant shall not be burdened with any claim of interest or other charges until the Certificate Officer modifies the certificate and liability for interest u/s. 17 would run only from that date provided any amount has remained unpaid. Parties are directed to bear their own costs throughout.
Appeal dismissed.


Shriram Mandir Sansthan Alias Shri Ram Sansthan Pusda v Vatsalabai and Others
Supreme Court of India

17 December 1998
C.As. No. 1005 of 1991 (From the Judgment and Order Dt. 21 March 1990 of the Bombay High Court in W.P. No. 1564 of 1985) with Nos. 5512 of 1995, 1191 and 3808 of 1992
The Judgment was delivered by: Sujata V. Manohar, J.
1.  The appellants in these appeals are trusts, either for an educational purpose or are institutions for public religious worship. The entire income from the lands belonging to each of these institutions is appropriated by it for the purposes of the trust. All these institutions are covered by S. 129(b) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act of 1958'). S. 129 of the Tenancy Act of 1958 is as follows:
"129. Nothing in the foregoing provision except section 2, the provision of Chapter II (excluding sections 21,22,23, 24 and 37) and s. 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply -
(a) ..............
(b) to lands which are the property of a trust trust for an educational purpose, hospital Panjarpole, Gaushata, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purpose of such trust; and
(c) ..............
(d) ..............
Explanation - For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfies by the trust shall be the conclusive evidence in that behalf Each of these trusts have been granted a certificate by the Collector under the Explanation to S. 129 of the Tenancy Act of 1956."
2.  The respondents in each of the appeals and/or their predecessors-in-title were tenants in respects of the lands belonging to the appellants. On the death of the tenant, the appellants filed an application for summary eviction of the respondents u/s. 120 of the Tenancy Act of l98. The appellants contended that o the death of the tenant, the tenancy came to an end and they were entitled to obtain possession of the lands. In these proceedings, ultimately the Maharashtra Revenue Tribunal in revision held that the tenant of the appellants-trust had not become a statutory purchaser under the Tenancy Act of 1958. However, the heirs of the deceased tenant were entitled to succeed to the tenancy. Hence the revision application of the appellants was dismissed. This decision was challenged by the appellants by filing a writ petition before the High Court. The High Court has dismissed the writ petitions so filed on the ground that the issue is covered against the appellants by a decision of the Full Bench of the Bombay High Court in Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji (1989 Mh.L.J. 891). This has led to the filing of the present appeals.
3.  The question which requires consideration in all these appeals is whether, in the case of lands belonging to a trust or an educational institution falling within S. 129(b) of the Tenancy Act of 1958, the tenancy is heritable on the death of a tenant, by his heirs. U/s. 54 which forms a part of Chapter III of the Tenancy Act, 1958, it is provided as follows:
"54. (1) Where a tenant dies, the landlords shall be deemed to have continued the tenancy -
(a) if such tenant was member of an undivided Hindu family to the surviving member of the said family, and
(b) if such tenant was not a member of an undivided Hindu family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death.
(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow of the charge for maintenance on the profit of such land.
(3) The interest an occupancy tenant in his holding shall on his death pass by in accordance with his personal law."
4.  The marginal note to S. 54 sets out, "Rights of tenants to be heritable".
5.  Section 129, however, which deals with the tenancy of lands belonging, inter alia, to places of public religious worship and educational institutions, provides, (inter alia) that Chapter III of the Tenancy Act, 1958 will not apply to such institutions. Therefore, S. 54 does not apply to the tenants of these institutions, Are these tenancies heritable under any other provision of law? To answer this question we will have to examine, broadly, the scheme of the Tenancy Act of 1958. The preamble to the Act states, inter alia, that:
"WHEREAS it is expedient to amend the law which governs the relations of landlords and tenants of agricultural lands....... in the Vidarbha Region of the State of Maharashtra with a view to bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the State; AND WHEREAS it is expedient in the interests of the general public to regulate and impose restrictions on the transfer of agricultural lands .......... belonging to or occupied by agriculturists, agricultural labourers, .......... and to provide for the assumption of the management of circumstances and to make provisions of certain other matters hereinafter appearing ........"
6.  The Act, therefore, ostensibly seeks to bring the relationship of landlords and tenants in the Vidarbha Region in line with the position prevailing in other parts of the State of Maharashtra. The other object of the Act is to regulate and impose restrictions on the transfer of agricultural lands and to provide for the assumption of the management of the agricultural lands and to make certain other provisions. The Act, therefore, is not meant entirely for the benefit of tenants although it gives valuable rights to the tenants of agricultural land generally. U/s. 2(32) a "tenant" is defined to mean a person who holds land on lease and includes - (a) a person who is deemed to be a tenant under Sections 6,7, or 8 and (b) a person who is a protected lessee or occupancy tenant. Sections 6, 7 and 8 fall under Chapter II of the Tenancy Act of 1958 which deals with general provisions regarding tenancy.
7. U/s. 46 which forms a part of Chapter III, there is a provision for transfer of ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter with effect from 1st of April, 1961. There are certain exceptions to these provisions which are set out in that section. Under Section 49A which was inserted in Chapter III by the Maharashtra Act 2 of 1962, notwithstanding anything contained in ss. 41 or 46, on and from the 1st of April, 1983, the ownership of all lands held by a tenant being land which is not transferred to the tenant under section 46, or which is not purchased by him u/s. 41 or 50, shall stand transferred to and vest in such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is cultivated by him personally, and on condition that the landlord has not given a notice of termination of tenancy as set out in that section and subject to the various other provisions of that section. These sections which form a part of Chapter III do not apply to tenancies of lands covered by S. 129.
8.  Only some of the preceding provisions of the Tenancy Act of 1956 apply to tenancies of lands belonging to trusts for educational purposes or institutions for public religious worship provided the entire income of such land is appropriated for the purposes of such trusts. The provisions which apply are Section 2, all sections falling under Chapter II with the exception of Sections 21, 22, 23, 24 and 37; Section 91, Chapter X and Chapter XII. S. 54 which forms a part of Chapter III, therefore, does not apply to the land belonging to such a trust or and institution for public religious worship. The Full Bench of the High Court in the case of Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji (supra), however, held that although S. 54 which makes a tenancy heritable does not apply, the ordinary law relating to succession would apply and, therefore, tenancy of lands belonging to such trusts for an educational purpose or institutions for public religious worship would also be heritable.
9.  To examine the correctness or otherwise of this view it is necessary to emphasis that S. 54 which makes tenancies heritable is expressly made inapplicable to tenancies of lands falling under S. 129(b). What is the effect of S. 129 which excludes the application of S. 54 to the tenancies of lands belonging to such trusts and institutions? The obvious effect is that the provisions is contained in S. 54 will not apply. But is it, also intended thereby that such a tenancy shall not be heritable? The best way to answer this question would be to see what would be the effect of holding that such a tenancy would be otherwise heritable. First of all, S. 54 makes, if it all, only a slight departure from the ordinary law of succession. Cl. (b) of S. 54(1) provides that if the deceased tenant was not a member of an undivided Hindu family, the tenancy would go to his heirs. Since this is the ordinary law of inheritance, its exclusion must entail exclusion of the ordinary law of inheritance. Sub-s. (3) of S. 54 provides that the interest of an occupancy tenant on his death shall pass by inheritance or survivorship according to his personal law. This also is nothing but a statement of the ordinary law of inheritance and succession. If we were to hold that the ordinary law of succession applies, the result would be, at least in the case of a tenant who is not a member of an undivided Hindu family, and an occupancy tenant, that his heirs would be entitled to succeed to the tenancy. At the same time, exactly the same provision in S. 54(1 )(b) and S. 54(3) would not apply! This would lead to a self-contradictory situation.
10. It is, therefore, clear that at least for tenants of the description falling under S. 54(l)(b) and S. 54(3), the ordinary law of inheritance is not applicable in all cases where tenancies are not governed by S. 54. The exclusion of S. 54 necessarily implies exclusion of ordinary law of testamentary succession. S. 54 does not preserve the right of a tenant to make a will bequeathing his tenancy to a person of his choice in the case of those tenancies which are governed by S. 54. Heritability is to be governed entirely by S. 54. Therefore, by excluding Section 54, the clear intention is to make such tenancies non-heritable. S. 54(1)(a) makes a slight departure from Hindu Law of Succession. Inheritance by survivorship is conferred on all members of the joint family instead of only the coparceners. Therefore, all members of the joint family male and female inherit. The provisions in the Hindu Succession Act in cases where there are female heirs of a male having an interest in the joint family property, are also not applicable. The question the legislature intended that tenancies not covered by S. 54(1)(a) would nevertheless be governed by the ordinary law. In our view S. 54(1)(b) or S. 54(3). The entire section must be read harmoniously. The legislative intention as seen from the scheme of S. 54 is, that heritability of any tenancy falling within the definition off that term under the Tenancy Act of 1958 is governed exclusively by S. 54. Where S. 54 us made expressly non-applicable under the Tenancy Act of 1958, the tenancy us not heritable at all. An express provision in the Act which excludes the operation of certain provisions, cannot be made nugatory by resorting to general law.
11.  This conclusion is strengthened by the fact that S. 37 which forms a part of Chapter II is also expressly excluded from application to the tenancies of such trust. S. 37 provides as follows:
"37. Save as provided in this Act, the rights and privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever, shall not be limited or abridged."
12. Therefore, in the case of tenancies of such trusts, preservation of rights and privileges of a tenant under any law for the time being in force is excluded. Therefore, the rights and privileges of any tenant of such land belonging to a trust or religious institution would only be as prescribed under the Tenancy Act 1958. A resort cannot be had to any other law for the time being in force to determine their rights and privileges.
13.  Learned counsel for the respondents drew our attention to the decision in the case of Gian Devi Anand v. Jeevan Kumar and Ors. [(1985) 2 SCC 583 1985 Indlaw SC 416). The Court has observed in that case that in the absence of any provision in the Act the ordinary law of succession would apply.  However, under the Bombay Tenancy Act of 1958, there is an express provision which excludes from the ambit of Section 54, tenancies of institutions covered by S. 129(b). Since S. 54 alone governs the heritability of tenancies covered by the Tenancy Act, 1958, the exclusion of S. 54 necessarily implies the exclusion of the ordinary law of succession and inheritance as well from the tenancies so excluded. [See in this connection Ratan Lal Adukia v. Union of India 1989 Indlaw SC 653 principle that a special subsequent legislation which is a code in itself excludes the earlier general law on the subject.]
14.  The High Court was, therefore, not right when it held that although S. 54 is excluded, the ordinary law of succession and inheritance is not. And, therefore, the tenancy of lands belonging the institutions covered by S. 129(b) would be heritable under the ordinary law if not under S. 54.
15. In fact, the Bombay High Court from 1958 to 1980 had consistently held the view that the tenancy of a public trust was not heritable. But in 1980 the High Court held that S. 40 of the Bombay Tenancy and Agricultural Lands Act was not the only source of inheritance and as such the tenancy of a public trust was heritable under that Act. The present S. 54 is the relevant section as far as lands in the Vidarbha Region are concerned. The Full Bench upheld the view taken in 1980. In our view, the exclusion of S. 54 by necessary implication also excludes the provisions of ordinary law of succession and inheritance from the tenancy of agricultural lands of institutions falling under S. 129(b).
16. S. 129 clearly seeks to protect certain lands from the provisions of the Tenancy Act of 1958. The section thus protects lands held or leased by a local authority or a university, lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala or an institution for public religious worship, provided the entire income of such land is appropriate for the purposes of such trust. It also protects lands assigned or donated by any person before the commencement of the said Act for the purpose of rendering services useful to the community, namely, maintenance of water works, lighting or filling of water troughs for cattle. It also protects any land taken under management by a civil, revenue or criminal court as set out therein. There is a further safeguard ensuring that the income from such lands is appropriated for the purposes of a trust covered by S. 129(b). The explanation provides for the grant of a certificate by the collector after holding an inquiry.
17. Thus, the clear intention of S. 129 is to protect certain lands from tenancy legislation where the lands or income from such lands is being utilised for public purposes set out there. In this context, if the tenancy of such lands are not made heritable, this would clearly be in furtherance of the purpose of exempting such lands under S. 129.
18.  We, therefore, allow these appeals and set aside the impugned judgment and order of the High Court in each of the appeals. There shall, however, be no order as to costs.
Appeals allowed.


Bhagat Ram v State of Punjab
Supreme Court of India

9 February 1954
Cr.As. Nos. 46 and 47 of 1953.
The Judgment was delivered by: JAGANNADHADAS, J.
1.  These two are appeals by special leave against a common judgment of the High Court of Punjab in its revisional jurisdiction. The appellant who is the same in both was convicted by the Magistrate, First Class, Hoshiarpur at two separate trials, one in respect of a charge u/s. 420 and the other in respect of a charge u/s. 409 of the Indian Penal Code. The convictions were confirmed by the Session Judge on appeal and by the High Court in revisions. The charges relate to connected matters and the evidence, though separately recorded, was substantially the same. It is, therefore, convenient to deal with the two appeals by a common judgment as the High Court did.
2.  The appellant, Bhagat Ram, was the Civil Nazir in the office of the Senior Subordinate Judge, Hoshiarpur. The main charge against him was that in his capacity as a public servant, he committed criminal breach of trust in respect of a sum of Rs.3, 496/5/- of Government money between the 1st December, and the 18h December, 1948.
3. The other charge was that in order to find the money to cover up the embezzlement, he tried to raise a sum of Rs. 3, 350/- by way of loan from one Seth Brij Lal, misrepresenting to him that it was required by the then Subordinate Judge and that by such representation he dishonestly induced the said Seth Brij Lal to issue a cheque for the sum of Rs. 3, 350/-.
4.  At the material period of time Shri K. S. Gambhir was the Senior Subordinate Judge of Hoshiarpur in the place of the regular Senior Subordinate Judge, Shri Bhandari, who was officiating as the District and Sessions Judge, from the 13th November to the 16th December, 1948.
5.  Under arrangement made by the High Court, the Senior Subordinate Judge of the place was vested with certain administrative duties, one of such being that he was to draw and disburse month by month the salaries of the Civil Courts establishments at Hoshiarpur and of three other outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) Garhshankar. The normal procedure for the disbursement of the salaries was to prepare the salary bill of all the four Tahsils and present it to the Treasury on or about the first of the month, the salary for the Sadar Tahsil of Hoshiarpur being drawn in cash and the salaries for the three other Tahsils being draw by means of cash orders authorising payment locally.
6.  The embezzlement in question relates to the salary bill for the month of November, 1948. Departing from the pre-existing practice, the said salary bill was drawn entirely in cash for all the four Tahsils. This was done under the authorisation of the Subordinate Judge, Shri Gambhir, but the actual cash amounting to Rs. 5, 576/6/- was received from the Treasury by the appellant on the 4th December, 1948. Out of this amount a sum of Rs. 811/1/- for Hoshiarpur Sadar and a sum of Rs. 1, 420 for Garhshankar Tahsil were in fact disbursed within a few days. The salaries of Una and Dasuya, totaling an amount of Rs. 3, 347/5- were not disbursed. On the 14th December, a telegram was received by the District Judge, Hoshiarpur, from the Subordinate Judge, Una, complaining that the civil establishment pay of his Tahsil was not so far received and requesting him to arrange for the same.
7.  It is the prosecution case that the appellant had misappropriated the amount and that on receipt of the above telegram by the District Judge, he realised the urgency of finding the money somehow and that he accordingly made attempts to raise the money by way of a loan.
8.  It is in evidence that on the 16th December, he approached two persons, by name Hakim Rai and Lala Shiv Dayal for loans, representing to them that they were required for the subordinate Judge. Failing in these attempts he approached one Seth Brij Lal for the amount of Rs. 3, 350/- also making the same representation. He showed them a 'Ruqqa' from the Subordinate Judge purporting to authorise him to raise the money. On the morning of the 17th Seth Brijlal gave the appellant a bearer cheque on the local Imperial Bank drawn in favour of Shri K. S. Gambhir, Subordinate Judge, by name. The cheque was presented by the appellant on the Bank that very day at 10 a. m. But before the cash was paid to the appellant by the Bank, Seth Brij Lal happened to have gone towards the Court premises and to have met the Subordinate Judge. He informed him that he had issued the cheque to accommodate him. The Subordinate Judge appeared surprised at it and repudiated the same. Consequently Seth Brij Lal rushed up to the Bank and stopped payment, got back the cheque from the bank authorities, and informed the Subordinate Judge. The Subordinate Judge thereafter took a statement from him. This statement and the returned cheque were duly sent up to the Police for investigation.
9. Suspicion having been thereby aroused against the appellant as regards the handling of the moneys drawn by him, the relevant accounts were immediately checked and it was discovered that the salaries of Una and Dasuya establishment were not disbursed. Accordingly, two complaints, one in respect of a charge u/s. 420 and the other in respect of a charge u/s. 409 of the Indian Penal Code were filed against the appellant, the first on the 17th December at 8-30 p.m. and the second on the 18th December. It would appear also that the appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for leave for a month. He was not found for some days and was actually arrested on the 3rd January, 1949. Meanwhile the entire amount was deposited by the brother of the appellant on the 21st of December, 1948. It may also be mentioned that the Subordinate Judge, Shri Gambhir, contacted the two persons, Shiv Dayal and Hakim Rai, whom the appellant had approached for raising the loan, and took their statements on the 19th December. These statements also were forwarded to the Police.
10.  The appellant substantially admits all the material facts above stated. His defence is that it was the Subordinate Judge, Shri Gambhir, that misappropriated the amount and that it was at his request and under his specific authority that he made the attempts to raise the sum of Rs. 3, 350 on the 16th and the 17th of December, from the three persons above mentioned. In support of this defence he has examined a witness and produced a 'Ruqqa'. Ex. D. A dated the 4th December, 1948, purporting to bear the signature in English of Shri K. S. Ghambir acknowledging receipt of
"a sum of Rs. 3, 500/- out of the pay account of the processing serving establishment from the Civil Nazir for a day".
11. The said 'Ruqqa' bears an endorsement of repayment of Rs. 150/- on the 8th December, so that, it is, if true, a receipt for the sum of Rs. 3, 350 said to have been misappropriated. The appellant relies on this in respect of the charge u/s. 409 of the Indian Penal Code.
12.  So far as the charge u/s. 420 of the Indian Penal Code is concerned, it is his defence that the subordinate Judge gave him on the 16th December another 'Ruqqa', signed by him and specifically authorising him to raise an amount of Rs. 3, 350/- by way of loan on his behalf locally and that he made use of it in his attempts to raise the loan for him. The 'Ruqqa; has not been produced. But it is his case that it was returned to the Subordinate Judge after being shown to Brij Lal. He relies on the evidence of the very witnesses whom he is said to have approached for the loan in support of this defence.
13.  The trial court as well as the appellate Court have disbelieved the defence and convicted him of both the charges and sentenced him to imprisonment as well as fine.
14. The High court on revision confirmed the conviction but considered the fines uncalled for and confined the sentences to the imprisonment awarded.
15. It may be mentioned that after we heard the arguments fully on these appeals, we have been informed that the appellant has served out the sentences of imprisonment. But we have been pressed to express our view on the merits of the case inasmuch as the conviction has affected to official employment of the appellant and has caused him serious loss and dislocation in his life.
16.  On the above statement of the case it is fairly clear that the appellant must be found guilty of the offences charged unless the defence put forward by him can be held to be made out to extent of its being reasonably probable.
17.  In the course of the trial certain circumstances relating to this transaction have been elicited which have been variously relied on by the prosecution as well as the defence as being in support of their respective cases.
18.  The learned Judge of the High Court who dealt with this matter in revision sums up the position as follows in his judgment.
"The issue in the cases is quite simple - either Mr. Ghambir is the villain of the piece and Bhagat Ram is a victim of his oppression and is being made to embezzle a sum of Rs. 3, 500./- for Mr. Ghambir's benefit on the 4th of December, and then falsely being accused of trying to cheat the money-lender Seth Brij Lal when in fact the loan was being taken on behalf of Mr. Ghambir, or else Mr. Ghambir is rather a careless officer who allowed himself to be tricked by the accused in the matter of pay bill on the 4th December and was thereafter falsely by accused Bhagat Ram of being the principal offender when Bhagat Ram's embezzlement of Rs. 3, 500/- could no longer be concealed owing to the urgent demands for the pay of the process-serving establishment at Una and Dasuya. 'It can not be denied that there are circumstances in the evidence on the record which point towards both conclusions'. (Underlined (hear in' ) by me)".
19.  The learned Judge, however, came to the conclusion that the Courts below have carefully considered the circumstances for against and that they rightly held that it was Bhagat Ram, the appellant who was responsible for the embezzlement and that his efforts to throw the blame on the subordinate Judge, Shri Ghambir, were false.
20.  On a consideration of the merits of the case, it is necessary to notice at the outset that the conviction of the appellant is not based upon a mere acceptance of the oath of Shri Ghambir denying the alleged misappropriation by himself and the alleged authorisation by him to the appellant to raise money on his credit but on a consideration of the circumstances brought out in the evidence.
21.  Indeed all the three Courts had severe comments to make against the evidence of the subordinate Judge. The trial Magistrate characterised a material item of the evidence of Shri Ghambir as
"a piece of falsehood unworthy of a judicial officer of the standing of Mr. Ghambir".
22. The sessions Judge at the conclusion of the judgment stated as follows :
"Before concluding I would like to say that though I have exonerated Mr. Ghambir from all complicity in the matter of the misappropriation of Government money. I can not exonerate him from all blame in connection with this affair. He has come in for a good deal of criticism which in my judgment is not altogether unmerited at the hands of the learned trial Magistrate both in regard to the truthfulness of the statement he made in Court and the fact that he arrogated to himself the role of the complainant and the investigator in this case".
23.  The learned Judge of the High Court has also substantially agreed with this opinion. The question, therefore, that arises in this case is whether the circumstances brought out are so clear as to show that the defence is false or improbable. 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 offences home to him beyond any reasonable doubt. This Court has affirmed the proposition in --- 'Hanumant v. State of Madhya Pradesh', 1952 Indlaw SC 89 in the following terms.
"It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude very hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".
24.  We cannot help noticing that the Courts below do not appear to have kept this fundamental approach in view. The first question that arises in this case is whether from the circumstances it is so well-established beyond doubt that it is the appellant that has misappropriated the amount in question.
There are at the outset two circumstances 'against' him.
(1) that the amount in question was drawn by him from the Treasury, and
(2) that it remained unpaid to the parties concerned, viz., to the Civil Establishments at Una and Dasuya. But he asserts that the money was taken from him by the Subordinate Judge himself temporarily for his own purpose. Apart from the alleged receipt, Ex. D. A. which will be dealt with presently, the defence relies on the following circumstances.
25. It is pointed out that the scope for misappropriation by one party or the other arose in this case by virtue of deviation from the normal practice of drawing the pay of outlying Tahsils by way of cash orders and that this deviation was at the instance of the Subordinate Judge himself and with his full knowledge, but that he now falsely denies all knowledge of the same.
26.  It is in evidence that the salary bill as originally presented to the Treasury had a note at the top thereof that the amounts for the three outlying Tahsils were to be paid by cash-orders. The bill was returned on the 4th December for correction of a small mistake in the details thereof. The evidence shows that before representing it to the Treasury, the note above referred to was scored out under signatures of the Subordinate Judge at the two ends of the note, thus converting the bill into one for payment of the entire amount thereof in cash to the appellant. A look at the original bill which has been exhibited also shows this. In addition to this authorisation to draw the entire amount in cash, in departure from the pre-existing practice, another circumstances has also been brought out in the evidence. As already stated the Subordinate Judge of Una sent a telegram to the District Judge of Hoshiarpur on the 14th December complaining that the pay of the Civil establishment was not disbursed till then. The District Judge forwarded it to the Subordinate Judge, Shri Ghambir, on that very date marking it "immediate". No action appears to have been taken on it by him. All that appears is that certain memos were issued to the other Subordinate Judges of the outlying stations requesting that their respective Nazirs should be sent over to the Sadar station for receiving the salaries of their establishments. This order appears to have been issued as part of a general order, Ex. P. W. 9/A, which is as follows:
"Generally salaries of officials in the Mufassil are received late. To avoid this delay it is proposed that Nazirs posted at the Mufassils should personally come to the Sadar along with their respective pay bills in the first week of every month and should not sent anybody else so that they should take with them salary of the establishment. As a rule, pay is drawn at the Sadar on the first day of every month. Hence, all Mufassil Nazirs should bring with them their pay bills within the first week of every month and return the same day after receiving salary of their establishments to avoid cash order or any other trouble. Acquittance roll shall be kept at the Sadar. Nazirs may also take them along with salaries. This is for urgent information.
ORDER
This Robkar be sent to the Sub-Judge. Una, with the request that the Nazir may be kindly instructed to comply (with the above instructions) in future."
27.  Thus not only was there a departure from the previous practice by way of drawing cash also for the outlying stations under the specific orders of the Subordinate Judge but when delay in payment was made a matter of complaint no action was taken thereon but there was only an attempt to gain time by adopting the device of appearing to make a general change in the practice for the future and asking the outlying Nazirs to go over to Sardar for receiving the moneys.
28.  The Subordinate Judge disclaims responsibility for these circumstances, by putting forward the plea that he signed the scoring out in the salary bill merely as a matter of routine and without being conscious of the implication thereof and that the instructions in Ex. P. W. 9/A were issued without his knowledge. He asserts that the appellant alone was responsible in getting his signatures and for issuing these instructions.
29. It cannot be disputed that under the rules, the responsibility was entirely that of the Subordinate Judge and that it was a serious one and that a disclaimer thereof is not to be lightly accepted. The Punjab Financial Rules lay down as follows :
"The head of an office is personally responsible for every pay drawn on a bill signed by him or on his behalf until he has paid it to the person entitled to receive it and obtained his receipt, duly stamped where necessary on the office copy of the pay bill."
30. The Rules and Orders of the Punjab High Court also are as follows :
"As the Government is responsible for the due application of all property and money received in accordance with law by any court of justice the officers presiding over such courts must be held directly and personally responsible for any loss caused by failure to observe rules or neglect on their part to exercise supervision and control over the officials subordinate to them in accordance with law and the orders issued by the High Court......."
31.  To negative the plea of the Subordinate Judge that he had no knowledge of the pre-existing practice, evidence has been given of previous instance when this practice was within his notice. This appears from Ex. P. W. 6/D. A and B. W. 6/D.C. When confronted with these documents in cross-examination, he has no answer except to say that he does not remember. Having regard to the matter therein and dates thereof this answer appears to be false. There can also be no doubt that the orders contained in Ex. P. W. 9/A were issued under his specific instructions.
32. The Subordinate Judge takes advantage of the fact that Ex. P. W. 9/A is signed by P. W. 6 and the matter thereof is in the hand-writing of the appellant. But P. W. 6 deposes that the Subordinate Judge admitted before him that he did instruct the appellant to send for the Mofassil Nazirs to receive payment at Sadar. P. W. 6 also deposes that he made similar admission before Shri Bhandari in the departmental enquiry against the appellant which followed, pending the prosecution. Shri Bhandari's evidence confirms this but the Subordinate Judge, Shri Ghambir, falsely denied having so admitted. If as appears to us to be clear, the pleas put forward by the Subordinate Judge to explain these circumstances are false and if the Subordinate Judge not only authorised cash to be drawn for outside stations instead of mere cash-orders but when the delay in disbursement was specifically drawn to his attention, he did not also take any notice of it as against the appellant and only authorised the issue of instructions to the outlying stations that their Nazirs should be sent over to the Sadar in order to receive the moneys, the reasonable probability is that the non-availability of the money for disbursement by about the 16th December was a situation for which the Subordinate Judge was deliberately and primarily responsible.
33.  It is as against this background that the defence of the appellant, that he in fact handed over the money to the Subordinate Judge, has got to be considered. As already stated he produced a receipt Ex. D-A in support of it. The Courts below have discredited that receipt. All the three Courts below were inclined to hold that that receipt bears the genuine signature of the Subordinate Judge notwithstanding the denial thereof by him. But, all the same, they held it to be a forgery. The reasons given by the trial Court and the appellate Court for this are not by themselves convincing. The main reason given is that the very look at the piece of paper on which this receipt was written indicates its forged character.
34. We have had the opportunity of looking at the original 'Ruqqa'. Ex. D. A. ourselves, but do not think that it can be definitely pronounced to be a forgery by appearance. The Courts below were inclined to think that it is on a piece of paper which may have been torn out from a larger sheet containing the genuine signature of the Subordinate Judge in which a blank space was by some chance left above it. But a look at it shows clearly that the suggested blank space is about 2 to 3 inches in size commencing from the normal uncut top line of an ordinary sheet. It is not easy to see how a blank space of that size and in that position was likely to have been left above a genuine signature. The impression of the Court below in this behalf is mere speculation and there is nothing in the evidence of the Subordinate Judge to indicate any such likelihood.
35.  Another consideration which weighted with the trial Court and the appellate Court in rejecting this 'Ruqqa' is that the Subordinate Judge was very unlikely to have admitted in a piece of paper under his signature that he had taken a sum out of the pay account of the process-establishment even for a day, for that would have meant a complete ruin of his official position and of his further career and that so responsible an officer was not likely to have done so. This consideration is not without force. But the Court do not seem to have appreciated that the same consideration equally weights in favour of the appellant. The trial Magistrate has noted in his judgment that the appellant had an unblemished record of service. The prospect of jeopardizing the same is one which would equally weigh with him to prevent his misappropriating the money for his own use. The reaction on his position and on his future, consequent on such misappropriation, is not the less for him, from his point of view, merely because he is a person in lesser official situation and drawing a lower salary.
36.  One cannot held feeling that in viewing this circumstances as in others, the Courts below have without justification - unconsciously it may be - adopted differing standards as between the Subordinate Judge and the Civil Nazir. One of the main reason which persuaded the learned Judge of the High Court to accept the view of the Courts below that Ex. D. A. was a forgery was the following. The very next day after the incident took place i.e. on the 18th December, the appellant sent two letters, Exs. P. W. 6/C and P. W. 6/D, one to the clerk, P. W. 6, Ramdas, and another to a process-server, Barkat Ram. In the letter, Ex. P. W. 6/D, he states as follows :
"On the 4th December, 1948, he took Rs. 3, 500/- in each and gave a ruqqa. But he took back that ruqqa on the 17th December."
37.  In view of this categorical admission, the learned Judge was inclined to think that the piece of paper that has now been produced into Court as Ex. D. A. could not have been genuine. While this inference is not without force, it must be noticed that the accused who has put forward this 'Ruqqa' in the forefront of his defence throughout and who has admitted the genuineness of the two letters. Exs. P. W. 6/C and P. W. 6/D has not at all been asked to explain how with reference to his previous statement in Ex. P. W. 6/D he was now able to produce it into Court. One cannot imagine what explanation he may have been able to give. Having read the two letters Exs. P. W. 6/C & P. W. 6/D carefully together, we feel that it is not altogether unlikely that the statement in Ex. P. W. 6/D which has been relied on as negativing the genuineness of Ex. P. W. 6/A, may have been due to some confusion at the time, for, we find that in Ex. P. W. 6/C which is much more detailed and categorical as regards the material facts in this case, the only 'Ruqqa' stated to have been returned to the Subordinate Judge is the second 'Ruqqa' of the 16th December & not the first Ruqqa' dated the 4th December, while there is reference to both in the contents thereof. However that may be, it is unnecessary for the purpose of this case to find positively that Ex. D. A. is genuine. It is sufficient to say that we cannot agree with the view taken by the Courts below that it is proved to be a forgery.
38.  In this context it is also relevant to consider whether there is any indication in the case as to who out of the two was likely to have had need for the money at the time.
39.  The learned Judge of the High Court very rightly touched on this aspect of the case. But his assumption that there is no indication in the evidence that the Subordinate Judge had any need for the money at the time is not correct. It is in the evidence of P. W. 4, Shiv Dayal, that, when approached by the appellant for a loan on behalf of the Subordinate Judge, he believed it to be genuine because he knew already that the Subordinate Judge, Shri K. S. Ghambir, had purchased land and therefore guessed that the money may have been required by him in that connection. Even in the earliest statement (Ex. P. B. dated the 19th December, 1948), which he made to the Subordinate Judge, Shri Ghambir, he stated as follows :
"He (the appellant), however, told me that the Sub-Judge had to repay the amount in respect of land. Since it was within my knowledge that the S. Kartar Singh, Sub-Judge, had purchased land, I guessed that the said Sardar Sahib might have asked for money."
The Subordinate Judge himself in his cross-examination says as follows :
"I offered a bid to purchase two plots of land offered to the refugees by the East Punjab Government for sale at Hoshiarpur on 25-6-48 and 10 per cent of the amount was paid the same day. It was about Rs. 580/- or a little above or less. It was paid on the same day and after a month or so the Government refused to confirm the sale and the money was refunded to the bidders and the balance was never paid. Two plots were purchased by me one in my name and one in the name of my son Kewal Krishan and another plot was purchased by my father-in-law. I had taken to the spot Rs. 300/- I handed over that money to S. Harkishan Singh A. D. M. and my father-in-law gave me a cheque for Rs. 4, 000/-. I think I gave that cheque to the accused for getting it credited into my account with the Punjab National Bank and gave him another cheque either to Bhani Ram my orderly or to the accused and perhaps this cheque was for Rs. 6000/- or 7000/-"
40.  All this, no doubt, is far from proving that the Subordinate Judge had any substantial need for money at the time. But such as it is, it gives some indication that there may have been need for him in connection with the land transaction. It does not appear whether there has been any investigation of the circumstances of the Subordinate Judge relating to his land transactions though the statement of Shiv Dayal made to the Subordinate Judge himself on the 19th December indicating this was forwarded to the Police and was before them during investigation. In the circumstances, the remark made by the learned Judge of the High Court that the Subordinate Judge may have had no need for the money at the time cannot be of much weight.
41. On the other hand it is a matter not without some significance in this context, that no need of the appellant for any finance at the time has even been indicated. The fact that his brother has paid up the entire amount so quickly as the 21st December, obviously in response to the suggestion conveyed in the letter, Ex. P. W. 6/D, must furnish some indication that the appellant could command ready money for a crisis like this and have been able to make it up on his own account if he had himself misappropriated the amount instead of having to go about in the open market trying to raise money by false representations as to the authority of the Subordinate Judge.
42.  It appears to us, therefore, that the defence put forward by the accused on this part of the case cannot be said to have been disproved or to be so improbable that his guilt must be taken to have been established beyond reasonable doubt.
43.  Coming to the other part of the case which is the subject matter of the prosecution u/s. 420 of the Indian Penal Code it is clear that in the above view, his defence on this part also cannot be said to be improbable. If the defence of the appellant that the Subordinate Judge took the money from him is accepted as not improbable, it follows that the defence that the attempts to raise the loan were for him and on his authorisation, becomes probable. There is also some evidence in support of this. Hakim Rai, P. W. 5 and Seth Brij Lal, P. W. 14, both definitely say that a 'Ruqqa' bearing the signature of the Subordinate Judge and authorising the raising of a loan on his behalf for a sum of Rs. 3, 350/- was shown to them.
44. No doubt the 'Ruqqa' itself has not been produced and P. W. 5 says that he was not in a position to identify the signature of the Subordinate Judge. But he does say that he read the 'Ruqqa' carefully and was satisfied that the Judge Sahib really wanted money. In his earliest statement Ex. P/B dated the 19th December, made to this very Subordinate Judge, P. W. 5, sets out the contents of the 'Ruqqa' as follows :
"I (i.e. Sardar Ghambir Singh, Sub-Judge) need Rs. 3.350/- which I will repay to you after some days."
45.  Here again it is not either necessary or feasible to hold definitely that this defence has been completely made out. But it certainly cannot be said that it is improbable or false.
46.  One of the outstanding features of this case is that the defence which has been put forward at the trial is one which has been very elaborately and categorically set out the very next day after incident in Ex. P. W. 6/C. 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 Judges of the Courts below have almost ignored this letter excepting to make a reference to it for the purpose of discrediting the defence.
47. They do not seem to have realised the significance of the fact that quite a number of details furnished therein have found ample corroboration from the very evidence of the prosecution witnessess Nos. 4, 5 and 14, persons in respect of whom the appellant could not have felt sure at the time when he was setting out the details in his letter. It is somewhat unusual to find the accused in a case like this coming out with his entire defence so early after the occurrence and the same finding substantial corroboration at the trial from the witnesses for the prosecution. The only reason that the learned Judges give for discrediting this is that a period of 24 hours had elapsed by them. Having regard to the nature and contents of the letter and the fact that it has been sent by registered posts the next day from a different place probably at a distance - called Daulatpur as indicated by the stamping on the registered envelope thereof, we are not able to share the view that there was time enough for concocting such a false defence in this letter. To our mind, the very fact that the defence was given out such early stage and that it has, to such a large extent, been corroborated is a strong reason for thinking that the defence was very likely to have been true.
48.  The Courts below have relied on a number of circumstances which they consider to be against the accused, most of which appear to us inconsequential and to be based on sufficient appreciation of the surrounding situation. For instance the learned Judge of the High Court thinks that
"there was no necessity for the Subordinate Judge, Shri Ghambir, to repudiate the whole scheme when confronted by Seth Brij Lal on the 17th December after the loan had in fact been raised and the money was about to be realised which would tide over the embezzlement and give Shri Ghambir a breathing space for some time, if in fact he was a party and indeed the principal figure in the embezzlement".
He treats this as crucial in the case.
49.  With respect, the learned Judge does not seem to have appreciated that the fact of Brij Lal having issued a cheque in the name of the Subordinate Judge himself makes all the difference. It is obvious that if the embezzlement, however temporary, came to light, the fact of the amount having been raised on the basis of a cheque in his name and his having taken advantage of it in spite of information thereof having been conveyed by Seth Brij Lal himself, would have been a serious matter. The cheque itself would have been fairly strong evidence against him. It is not unlikely that he expected merely cash accommodation which would leave no documentary evidence behind but that when he found that that expectation did not materialise, he saw the danger into which he was running.
50.  Again the Courts below were inclined to think that if the defence of the appellant was true and he had in his possession a 'Ruqqa' Ex. D. A., acknowledging receipt of the amount of Rs. 3, 500/-, the appellant would have at once put it forward on the 17th itself at the premises of the Imperial Bank when Seth Brij Lal stopped payment on the ground of misrepresentation of the Subordinate Judge's authorisation in this behalf.
51. But it does not appear to have been appreciated that the question uppermost in the minds of everybody at that time was as to whether he was obtaining the loan on the authority of the Subordinate Judge. For this it was the 'Ruqqa' alleged to have been given to the appellant by the Subordinate Judge on the 16th that would have been material and not the Ruqqa' of the 4th December. If what is stated in Ex. P. W. 6/C namely that the 'Ruqqa' of the 16th December was returned by the appellant to the Subordinate Judge at the suggestion of Seth Brij Lal himself is true, he may well have become panicky on the realisation of the mistake he had committed in so returning it in view of the prosecution for an offence u/s. 420 of the Indian Penal Code that was imminent and probably the reatened.
52.  There are a number of other similar circumstances relied on by the Courts below into which it is unnecessary to go at length. It is enough to say that in our opinion none of them can be legitimately treated as circumstances which disprove the defence put forward by the appellant. We are clearly of the opinion, as already stated, that the defence was not improbable both as regards the assertion that the money was taken by the Subordinate Judge from the appellant by way of temporary accommodation and as regards the assertion that the Subordinate Judge not being able to put the money back within the expected time and in view of the urgency, authorised the appellant to raise money for him.
53. In this view it would follow that the offences charged cannot be said to have been brought home to the appellant beyond reasonable doubt. The Courts below in taking the contrary view have failed to keep in mind the fundamental rule stated at the outset relating to the proof of guilt based on circumstantial evidence and have proceeded on conjectures in a case where statedly the circumstances are more or less equally balanced. They have adopted varying standards as between the accused and the subordinate Judge in weighing the circumstances against them. They have also virtually ignored a crucial circumstance in favour of appellant, 'viz.' that he came forward with his defence on the very next day which finds considerable support from the prosecution evidence itself. The interference of this Court to prevent miscarriage of justice is accordingly called for.
54.  It may be noted that in the above discussion we have ignored the alleged embezzlement of the small extra amount of Rs. 149/- since we consider the appellant's explanation therefor in answer to question No. 7 on 19-11-1949 not to be improbable and the same has also been paid up.
55.  There is, however, one other aspect of the matter which requires consideration. The very receipt, Ex. D. A., on which the appellant relies shows that the appellant intentionally handed over the money in his custody to the Subordinate Judge for being utilised by him for purposes other than the disbursement of the salaries though it be statedly for a day.
56. The trial Court has pointed out that even on this view the offence u/s. 409 of the Indian Penal Code stands committed. That is also the view taken by the Sessions Judge on appeal as an alternative.
57.  The correctness of this view, however, would depend upon whether the Civil Nazir, in drawing the money from the treasury under the authority of the Subordinate Judge, and keeping the same in his custody, can be said to have been entrusted with the money. The exact legal position as to the nature of the custody of the money by the Civil Nazir in such a case has not been clarified. We have been shown no rule which authorises or enables the Civil Nazir in such cases to keep custody of the money with himself pending disbursal. If there was any such rule such custody may well amount to entrustment.
58.  The only rule that has been placed before us shows that it is the Subordinate Judge that is fully responsible for the drawal and the disbursal. It is he that must be primarily taken to be entrusted with the money. No doubt the Subordinate Judge himself in his evidence says that it is the duty of the Civil Nazir to draw the pay of the subordinate employees and to keep the same in his personal custody along with any other Government money in the safe provided to him which is kept in the Nazir Khan. Also one of the witnesses, P. W. 10, a Civil' Nazir, states that it is incumbent on the Civil Nazir to keep all the Government money lying undisbursed with him in the safe provided by the Government fixed in the Nazir's room.
59.  The appellant when asked about these matters under section 342, Cr. P. C. in question 1, 2 and 3 makes a distinction between amounts drawn in respect of pay and the amounts drawn on contingent bills and says that it was his duty to keep only contingent amounts with him implying that in respect of salaries it was not his regular duty. In the absence of a clear rule defining this responsibility in this behalf and the nature of his custody of money in such circumstances, we do not think that he can be held to have been entrusted with the custody of the money.
60. But, inasmuch as he has handed over the money to the Subordinate Judge with the knowledge that it was to be utilised for a purpose other than that for which it was legally intended, he may be said to have abetted criminal breach of trust by the Subordinate Judge. In an appropriate case the conviction may probably have been altered to one of abetment of an offence u/s. 409 of the Indian Penal Code. But in this case an alteration of the appellant's conviction u/s. 409 of the Indian Penal Code into one of abetment thereof would imply a definite finding of guilt against the Subordinate Judge, Shri Ghambir, who is not before us. It would, therefore, be unfair to make such an alteration. We do not accordingly feel called upon to do so in an appeal on special leave.
61.  In the result Criminal Appeals 46 and 47 of 1953 are allowed and the convictions of the appellant for both the offences with which he was charged are hereby set aside.
Appeals allowed.


Earabhadrappa Alias Krishnappa v State of Karnataka
Supreme Court of India

11 March 1983
Criminal Appeal No. 669 of 1982. Appeal by Special leave from the judgment and order dated the 29th October, 1981 of the Karnataka High Court in Crl. Appeal No. 241 of 1981
The Judgment was delivered by : A. P. Sen, J.
1. Appellant Earabhadrappa @ Krishnappa is under sentence of death and this appeal by special leave is directed against the judgment of the High Court of Karnataka dated October 29, 1981. The Sessions Judge, Kolar by his judgment dated March 21, 1981 convicted the appellant under s. 302 of the Indian Penal Code for having committed the murder of one Smt. Bachamma, wife of P.W. 3 Makrappa and sentenced him to death. On reference, the High Court has upheld the conviction of the appellant under s. 302 of the Indian Penal Code and confirmed the death sentence passed on him. The appellant has also been convicted by the learned Sessions Judge under s. 302 of the Indian Penal Code for having robbed the deceased of her gold ornaments and clothes and sentenced him to undergo rigorous imprisonment for a term of 10 years.
2. Upon the evidence presented at the trial it transpired that on the night between March 21 and 22, 1979 the deceased Smt. Bachamma was throttled to death at her house in village Mallur and relieved of her gold ornaments. On the night in question, the deceased Smt. Bachamma as usual served dinner to the family members. After taking his meals, P.W.3 went upstairs to his bed-room, her mother-in-law P.W.2 Smt. Bayamma went to the 'Kana' to keep a vigil while the deceased slept in the hall adjoining the kitchen and her son P.W.4 G.M. Parkash slept in the courtyard of the house. The appellant who had recently been employed as a servant by P.W. 3 slept in a room on the ground floor where the silk cocoons used to be reared and kept. On the 22nd morning at about 6 a.m when P.W.4 went to wake up his mother he found that she was lying dead and he therefore went upstairs and called his father P.W.3. They saw that the deceased had been strangulated to death and relieved of her ornament. Her gold mangalsutra and gold-rope chain were missing so also the gold nose-ring and gold ear-rings. On the right side of the bed was lying the screw of the missing gold nose-ring. There was also lying a towel (M.O. 1) which had been given by P.W. 3 to the appellant for his use, and apparently the deceased has been strangulated with the towel. The iron safe and almirah kept in the hall were found open and bunch of keys which the deceased carried with her was found missing. All the jewellery and cash of Rs. 1700/- kept in the iron safe and six silk sarees kept in the almirah were also found missing. There was a search made for the appellant but he was not to be found either in the house or in the village and he had therefore absconded with the jewellery and valuables.
3. Intelligence report received by P.W. 26 Abdul Mazeed, Circle Inspector of Police who had taken over the investigation from P.W. 25 Sreenivasa Rao, Station officer Shidalaghatta on 28 March 1980 revealed that the appellant was seen moving in Hosakote and Anekal Taluks and accordingly P.W. 26 along with his staff searched for the appellant in both the taluks but he could not be found, and therefore he encamped at Anekal on that day. On March 29, 1980 he got definite information that the appellant was seen in village Hosahally in Hosakote Taluk and was able to apprehend him at that village at about 2 p,m. On being taken into custody, the appellant made a statement Ex. P-35 leading to the discovery of the ornaments and clothes belonging to the deceased from several places. He first led P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma in village Gudisagarapelly leading to the recovery of four silk sarees (M. Os. 11 to 14) which were seized under seizure memo Ex. P-4. From that place, he took him to village Mattakur, from where he hails, to the house of one Dasappa leading to the recovery of the screw of the missing gold nose-ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O.15) which was seized under seizure memo Ex. P-5 and then to the house of P.W. 13 Narayanareddy leading to the recovery of the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7 & 8) which were seized under seizure memo Ex. P-6. The very day he took P.W. 26 to the house of P.W. 15 Chinnamma in Village Sollepura leading to the recovery of a silk saree (M.O.10) which was seized under seizure memo Ex. P-8. On the next day i.e. on the 30th the appellant took P.W. 26 to the house of P.W. 21 Ramachari in village Hosur who led them to the shop of P.W. 22 Palaniyachar leading to the recovery of a pair of gold earrings (M.Os. 3 & 4) and a gold ingot (M.O. 9) which were seized under seizure memo Ex. P-15. The seized articles have all been identified by P.W. 3 Makrappa and his mother P.W. 2 Smt. Bayamma and son P.W. 4. G.M. Prakash as belonging to the deceased.
4. The appellant abjured his guilt and denied the commission of the alleged offence stating that he had been falsely implicated. He also denied that he ever made the statement Ex. P-35 or that the stolen articles were recovered as a direct consequence to such statement.
5. In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the fact and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. The chain of circumstances brought out by the prosecution are these:
The appellant who hails from village Mattakur was a stranger to village Mallur ostensibly in search of employment. He falsely stated his name to be Krishnappa and gave a wrong address stating that he belonged to a nearby village. The securing of employment by giving out false name and wrong address shows that he had some oblique motive in his mind. He obtained employment with p.w. 3 and gained his confidence and was allowed to sleep in a room on the ground floor where the silk cocoons were kept. He thus became familiar with the places where the inmates of the house used to sleep and where the jewellery, cash and other valuable belongings used to be kept i.e. in the iron safe and almirah kept in the hall adjoining the kitchen.
It appears that the appellant had pre-planned the commission of robbery. Earlier in the evening he went to P.W. 6 Narayanappa and borrowed Rs. 2 and thereafter went to the toddy shop of P.W. 7 Smt. Anasuyamma and took liquor. On the night in question he reached the 'kana' at about 9 p.m. and was reprimanded by P.W. 2 for being late. Upon reaching the house he went upstairs in an inebriated state and told P.W. 3 that he no longer wanted to serve and he should settle his accounts. P.W. 3 told him to come in the morning and take his wages. It therefore appears that the appellant had made up his mind to leave the village.
On the next morning i.e. on the 22nd at about 6 a.m. it was discovered that the deceased Smt. Bachamma had been strangulated to death. The gold ornaments on her person and in the iron safe had been stolen. There was a search made for the appellant but he was not to be found anywhere. Near the dead body of the deceased was lying the blood-stained towel (M.O. 1) given by P.W. 3 to the appellant for his use with which the deceased had apparently been strangulated. The appellant had therefore absconded from the scene of occurrence after committing the murder and robbery.
After the appellant had suddenly disappeared from the house of P.W. 3 with the gold ornaments and other valuables, there was a frantic search made by P.W. 25, Sreenivasa Rao and P.W. 26 Abdul Mazeed at various places and he was absconding till March 29, 1980 until he was apprehended by P.W. 26 at village Hosahally in Hosakote taluk at about 2 p.m. On being arrested after a year of the incident on March 29, 1980, the appellant made the statement Ex. P-35 leading to the recovery of some of the stolen gold ornaments of the deceased and her six silk sarees from different places and they have all been identified by P.Ws. 2, 3 and 4 as belonging to the deceased.
The appellant falsely denied the recoveries and could offer no explanation for his possession of the stolen articles.
It appears from the prosecution evidence that after the commission of the murder and robbery, the appellant had with him the incriminating articles and taken them to his native place Mattakur where he disposed them of to several persons. The testimony of P.W. 26 reveals that in consequence of the information given by the appellant he recovered the missing screw of the gold nose ring (M.O.5) from one Dasappa in village Mattakur, that of P.W,12 Guruvareddy that appellant had sold to him the silk saree (M.O.15) for Rs. 150/-, and that of P.W.13 Narayanareddy discloses that the appellant had sold to him a gold rope chain (M.O.6) and a pair of gold bangles (M.Os. 7&8) for Rs. 2000/-, The testimony of P.W.8, Smt, Yallamma, sister of the appellant, hailing from village Gudisagarapally show that the appellant had given her four silk sarees (M.Os.11 to 14), and that of P.W.15 Smt. Chinnamma of village Sollepura, who was known to the appellant from before, shows that the appellant gave her the silk saree for Re. 1/- when she refused to take his gratis. The testimony of P.W. 21 Ramachari of village Hosur shows that appellant brought with him a pair of gold ear- rings and a gold ingot and wanted to sell them saying that he was hard-pressed. This witness took him to P.W. 22 Palaniyachar and the appellant sold the gold ingot (M.O.9) for Rs. 330/-and a pair of gold ear-rings (M.Os. 3&4) for Rs. 500/-.
6. From this evidence it is apparent that the appellant while he was absconding moved from place to place trying to dispose of the stolen property to various persons.
7. The learned Sessions Judge as well as the High Court have come to the conclusion that the circumstances alleged have been fully proved and they are consistent only with the hypothesis of the guilt of the accused. We are inclined to agree both with their conclusion and the reasoning. The chain of circumstances set out above establishes the guilt of the appellant beyond all reasonable doubt
8. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under s. 27 of the Evidence Act. Under s. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kottaya v. Emperor:
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact".
9. For the applicability of s. 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. In the present case, there was a suggestion during the trial that P.W. 26 had prior knowledge from other sources that the incriminating articles were concealed at certain places and that statement Ex. P-35 was prepared after the recoveries had been made and therefore there was no 'fact discovered' within the meaning of s. 27 of the Evidence Act. We need not dilate on the question because there was no suggestion made to P.W. 26 during his cross- examination that he had known the places where the incriminating articles were kept. That being so, the statement made by the appellant Ex. P-35 is clearly admissible in evidence.
10. In Jaffer Hussein Dastgir v. State of Maharasetra, the portion of the statement with reference to which this question arose read as follows:
"I will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom I have given a Packet containing diamonds of different sizes more than 200 in number."
11. The only question for decision in that case before the Court was whether the aforesaid statement made by the accused was admissible in evidence by virtue of s. 27 of the Evidence Act, the diamonds having been found with the person named. In the facts of that case the Court came to the conclusion that the police had already known that the diamonds were with the person named by the accused with the result that there was no fact discovered by the police as a result of the statement made by the accused. However, it was held clearly that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence.
12. In the present case, some of the material portions in the statement Ex. P-35 which distinctly relate to the fact discovered read:
"If I am taken to Gudisagarapally, I shall get the four silk sarees."
13. At village Gudisagarapally the appellant took P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma who produced four silk sarees (M.Os. 11 to 14) which were seized under seizure memo Ex. P-4. P.W. 8 Smt. Yallamma states that she is the sister of the appellant and that he had given to her the four silk sarees. It was suggested that the police had not only planted P.W. 8 as a sister of the appellant but also the four silk sarees in question, but there is no basis for this assertion. Then the statement Ex. P-35 recites:
"If I am taken to native place Mattakur, I shall get one gold nose ring without screw .. one silk saree..... one gold rope chain and one pair of gold ear rings."
14. At village Mattakur from where he hails, the appellant took P.W. 26 to the house of one Dasappa leading to the recovery of the screw of the missing gold nose ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O. 15) which was seized under seizure memo Ex. P-5. He then took P.W. 26 to the house of P.W. 13 Narayanareddy leading to the recovery of a gold rope chain (M.O. 6) and a pair of gold bangles (MOs. 7&8) which were seized under seizure memo Ex. P-6. The prosecution could not examine Dasappa because he was dead during the trial. P.W. 12 stated that the appellant had sold him a silk saree for Rs. 150 while P.W. 13 stated that he had sold him a gold rope chain and a pair of gold bangles for Rs. 2000/-. The statement Ex. P-35 contains similar recitals leading to the recovery of the other incriminating articles, viz (1) A silk saree (M.O.10) given by the appellant to P.W. 15 Smt. Chinnamma of village Sollepura whom he knew from before, for a token price of Re. 1/ -; (2) A pair of gold ear rings (M.Os. 3&4) and a gold ingot (M.O.9) from P.W. 22 Palaniyachar which he had purchased from the appellant for Rs. 830.
15. Apart from the question of sentence, two other contentions are raised, namely:
(1) There is no proper identification that the seized ornaments belonged to the deceased Smt. Bachamma; and
(2) the presumption arising under illustration (a) to s. 114 of the Evidence Act, looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles, should be that the appellant was merely a receiver of the stolen articles and therefore guilty of an offence punishable under s. 411 of the Indian Penal Code and not that he was guilty of culpable homicide amounting to murder punishable under s. 302 as well. We are afraid, none of these contentions can prevail.
16. Our attention was drawn to the testimony of P.W. 13 Narayanareddy who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. Nothing really turns on this because P.W. 2 Smt. Bayamma, mother-in-law of the deceased, her husband P.W. 13 Makarappa and son P.W. 4 G.M. Prakash have categorically stated that the seized ornaments belonged to the deceased Smt. Bachamma. There is no reason why the testimony of these witnesses should not be relied upon particularly when P.W. 2 Smt. Baymma was not cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M.Os. 10 to 15). It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.
17. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to s. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a) to s. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particulary when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.
18. Finally, there remains the question of sentence, it was cruel hand of destiny that the deceased Smt. Bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master p.w. 3 and committed her pre-planned cold-blooded murder for greed in achieving his object of committing robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night. The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in Bachan Singh v. State of Punjab where the Court moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the 'rarest of the rare' cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. A sentence or pattern of sentence with fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality-will bring to naught the sentence of death provided by s. 302 of the Indian Penal Code. The test laid down in Bachan Singh's case (supra) is unfortunately not fulfilled in the instant case. Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.
19. Subject to this modification in the sentence, the appeal fails and is dismissed.


Balwinder Singh v State of Punjab
Supreme Court of India

21 February 2001
Cr. Appeal No. 75 of 2001
The Order of the Court was as follows:
1.  The appellant stands convicted under three sections of three different enactments. Principal among them is Section 5 of the Terrorist and Disruptive Activities (Prevention) Act (TADA).
2. The other provisions are Section 25 of the Arms Act and Section 5 of the Explosives Act. On the whole a sentence of rigorous imprisonment of five years had been imposed on him besides a fine of Rs. 1000/-. He filed this appeal as of right under Section 19 of the TADA.
3.  During the course of arguments we came across certain deficiencies which crept in the trial proceedings. One is that the deposition of Babu Ram (we are not sure whether Babu Ram was in the rank of P.W. 1 or P.W. 2), remains unsigned by him. How it happended is not explained to us by the learned counsel for the respondent as he is also taken by surprise when this was brought to his notice. A plea was made that the entire record purported to be the testimony of Babu Ram should be kept aside on account of that deficiency. Such a course will not be consistent with the principles of criminal justice.
4. We, therefore, thought it more expedient to remit the case to the trial Court for filling up the said deficiency, for which Babu Ram has to be recalled and re-examined afresh.
5.  The second aspect is, two documents purported to be affidavits signed by Shrimati Bimal Kaur Khalsa and Shri Kamal Jit Singh are seen marked as 'A' and 'B'. Apparantly they were not proved by the defence.
6. Mr. Jaspal Singh, learned Senior Counsel made an endeavour to show that they may be relied on by this Court as evidence. Without adverting to the said contention, we adopt a course that the defence may be given an opportunity to prove those documents, for whatever worth they may be.
7.  For the aforesaid reasons, we set aside the conviction and sentence passed on the appellant and remit the case to the trial Court for disposal of the trial afresh. We make it clear that we are not ordering a de-novo-trial. For the prosecution Babu Ram alone need be recalled for examination afresh. Other evidence already recorded will remain.
8. Thereafter the Court is to put questions to the accused under Section 313 of the Code of Criminal Procedure with reference to the evidence of Babu Ram so recorded. The trial should proceed to the next stage of calling upon the accused to enter on his defence. If the accused wants, he can avail himself of the said opportunity to prove the aforesaid two documents purported to be the affidavit and any other evidence which he may wish to adduce.
9.  The appellant will remain in jail (judicial custody) during the trial. But this is subject to a rider that if he makes any application for bail during the remaining part of trial, it is for the trial Court to consider that application untrammelled by any observation made by this Court.
10. It is needless to point out that the trial Court shall dispose of the case as expeditiously as possible.
This appeal is disposed of accordingly.
Appeal disposed of.