Judgment

JAGANNADHADAS, J.: 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 under section 420 and the other in respect of a charge under section 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.

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/-.

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.

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.

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.

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.

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 th