@JUDGMENTTAG-ORDER
P.D. Dinakaran, J.@mdashHeard both the parties.
2. The above revision is directed against the order of conviction and sentence dated 25.1.1995 in C.A. No. 76 of 1994 on the file of the Learned
District Sessions Judge, Nagapat-tinam confirming the order of conviction and sentence of learned Judicial Magistrate, Man-nargudi, Nagai
Quaid-e-Milleth District dated 8.7.94 in C.C. No. 544 of 1991, for the offence punishable u/s 409 (4 counts), I.P.C. sentencing him to undergo
eight months simple imprisonment, with a fine of Rs. 500/- in default, 50 days simple imprisonment for each count, all to run concurrently.
3. The petitioner was facing trial for the offence punishable u/s 409(4 counts) I.P.C. in C.C. No. 544 of 1991 before the learned Judicial
Magistrate, Mannargudi, for the alleged occurrence said to have taken place on6.12.1983,23.12.1984,5.11.1985 and 10.7.1986 when the
petitioner withdraw a sum of Rs. 1077.55, 1077.60, 1077.60 and 9938.00 respectively, totalling to a sum of Rs. 13,170.75, on behalf of PW2,
by using withdrawal slip duly and knowingly signed by PW2, when he was working as a public servant in Mullaivasal Village Post Office during the
period 30.12.1982 and 10.7.1982, but not handed over the said amount to PW2, after the same was withdrawn.
4. 0n behalf of the prosecution, four witnesses were examined as PWs 1 to 4 and four documents were filed as exhibits PI to P4. If it suffice to
mention that PW1 is the brother of PW2.
5. The learned Judicial Magistrate, Mannargudi in his order dated 8.7.1994 in CC. No. 544/91 in the light of the evidence of PWs 1 to 4 and
exhibits PI to P4, convicted the petitioner for the offence punishable u/s 409 (4 counts) I.P.C. namely for the said four independent withdrawal,
and sentenced him to undergo eight months simple imprisonment with a fine of Rs. 500/- in default, fifty days simple imprisonment for each count,
all to run concurrently, and the same was, on appeal in C.A. No. 76 of 1994, by an order dated 25.1.1995 confirmed by the learned District and
Sessions Judge, Nagapattinam. Hence, the above Revision.
6. The learned counsel for the petitioner forcibly challenges the order of conviction and sentence on the following grounds:
(i) In view of the clear and unambiguous testimony of PW2, who was a graduate and an account holder, had knowingly signed the withdrawal slips
on the said dates namely 6.12.1983, 23.12.1984, 5.11.1985 and 10.7.1986 and handed over the same to the petitioner to withdraw a sum of Rs.
1077.55, 1077.60, 1077.60 and 9933.00 respectively and accordingly the same was withdrawn, but, however, without her knowledge, her
brother, PW1, had given a complaint;
(ii) The said cause of action falls in the year 1993 to 1986, while the complaint was preferred only in the year 1991, which would reflect that there
was neither genuine grievance by PW2 nor no mala fide intention by the petitioners, as the entire withdrawal has been done with a proper
knowledge and approval of PW2.
(iii)There was no complaint by PW2 that the petitioner either refused to hand over the amount withdrawn or misappropriated the amount or
committed criminal breach of trust entrusted by PW2 or the said amount was disposed in violation of any direction of law prescribing the mode in
which such trust was to be discharged or there was any complaint that the petitioner has cheated PW2 and
iv) the implicit understanding between petitioner and PW2 should be given proper respect and weightage before charging him for an offence
punishable u/s 409,I.P.C. as PW2 herself was not given the complaint since she never felt that she has cheated or her money was misappropriated
or the petitioner committed criminal breach of trust.
7. The learned counsel for the petitioner contends that the case of the prosecution is clouded with imaginary assumptions and presumptions
forgetting the reality of understanding between the petitioner and PW2, as she categorically states that without her knowledge, her brother has
made a complaint, which would prove that more than the charge levelled against the petitioner on behalf of PW2, the understanding between the
petitioner and PW2 is greater and deeper. Hence, he claims that the petitioner is entitled for an acquittal.
8. Per contra, learned Government Advocate contends that the petitioner being incharge of Village Post Office and entrusted with the maintenance
of Public accounts should not misuse the confidence of PW2 and make use of the withdrawal slips assuming the same was knowingly signed by
PW2 and take undue advantage by using the amount withdrawn without returning to PW2.
9. The learned Government Advocate also contends that since the petitioner was working as a public servant and only on account of the post he
was holding, PW2, gave the withdrawal slip to him believing his statement that he would withdraw the amount and handover the same to PW2, he
is expected to complete his promise by returning the amount withdrawn from the post office. Having failed to do so, the petitioner had squarely
committed criminal breach of trust punishable u/s 409 I.P.C.
l0. The learned Government Advocate further contends that mere want of a complaint by PW2 or an allegation by PW2 that the petitioner has
misappropriated the amount or refused to hand over the amount much less the petitioner had cheated PW2 will not eschew him for the offence,
punishable u/s 409 I.P.C.. He also states that in the absence of any plea or evidence on record, on behalf of the defence, as to the personal
relationship or understanding between the petitioner and PW2 which was sought to be sabotage by PW 1 , cannot be given any weightage while
trying an offence against the petitioner, which has been duly proved by the prosecution with sufficient evidence and materials on record.
11. I have given careful consideration to the submissions of both the sides.
12. At the outset, I do not propose to go into the merits and demerits, much less any assumption or presumption as to the so-called understanding
between the petitioner and PW2, as claimed by the petitioner or objected by the prosecution, as the same is totally outside the scope of the trial.
However, in the light of the evidence on record, I am obliged to observe that PW2, a graduate, who was holding an account, had categorically
stated that she signed the withdrawal slip with her full knowledge and handed over the same to the petitioner to withdraw the amount, which was
subsequently withdrawn but not handed over to PW2. It is clear that the petitioner, as a public servant, has not committed any misappropriation of
fund or criminal breach of Trust or there was any allegation punishable for cheating, but still the fact remains that he has no kept his individual
promise to PW2, to hand over the amount after withdrawing the same, which would definitely attract Section 406, I.P.C. if not, constitute an
offence punishable u/s 409, I.P.C.
13. I am satisfied that to this extent, the petitioner is punishable for the offence u/s 406, I.P.C. Hence, the order of conviction of the Courts below,
convicting the petitioner for the offence punishable u/s 409 (4 counts), I.P.C. are set aside but however, the petitioner is convicted for the offence
punishable u/s 406 (4 counts) I.P.C. With regard to the punishment, it is relevant to refer that PW2 is also equally responsible for giving a free
hand to the petitioner to withdraw the amount and keeping the same with him for years together till a complaint was made by her brother, namely
PW1, of course, without her knowledge. Considering the peculiar facts and circumstances of the case, I am obliged to invoke Section 4(1) of the
Probation of Offenders Act and direct the petitioner to be released on probation of good conduct, on his entering into a bond for a sum of Rs.
1000/- with one surety to appear and receive sentence when called upon during a period of six months, and in the meantime to keep the peace and
be of good behaviour. In this connection, I also make it clear that as contemplated u/s 12 of the Probation of Offenders Act, the petitioner shall not
suffer disqualification, if any, attaching to this conviction.
14. In the result, revision is ordered accordingly. No costs.
