Judgment

BHAGWATI, J.: This is an appeal by special leave from a judgment of the High Court of judicature at Patna affirming the conviction and sentence of seven years rigorous imprisonment imposed upon the Appellant by the Second Assistant Sessions Judge, Gaya.

2. The Appellant, a public servant, was a Tax Daroga in the employ of the Gaya Municipality. One Ram Dayal Singh was a peon in the said employ and was working under the Appellant. Collections of the taxes due to the Municipality used to be made by the various Tax Collectors who used to hand over the sums collected every day to the Appellant. A sum of Rs. 3,773-10-9 was thus collected and handed over to the Appellant on the 8th November 1949 and a sum of Rs. 4,240-3-3 on the 10th November 1949.

The practice of the Appellant was to put these collection into a cash box which was carried to a vault in the premises of the Imperial Bank of India at the end of the day s work. The key of the cash box and the vault remained with the Appellant. The Appellant used to prepared a challan in triplicate for the deposit of the moneys the next day and this challan was sent by the Appellant to the Treasurey for being passed through the Ram Dayal Singh. After the challan was passed by the Treasury Officer the peon used to bring the challan back to the Appellant. The Appellant then went to the vault, took out the cash box and the money was thereafter deposited with the Bank as per the challan.

The challans used to be signed by the Accountant as well as the Cashier of the Municipality, initialled by the Treasury Officer and stamped by the Bank in token of the receipt of payment. These stamps used to bear the initials of the Cashier who received the payments. One part of the challan was handed over to the depositor. The other part was retained by the Bank and the third part used to be sent by the Bank after about a month to the office of the Municipality. The Account of the Municipality used to make the entries in the cash book of the Municipality on receipt of such part of the challan.

The Bank also used to send scrolls to the Treasury Account offices intimating the deposits that had been made and also used to fill in entries with regard to such deposits in the pass book which was written up from time to time.

The Appellant maintained a note book in which the receipts from the Tax Collectors were noted and totalled up at the end of each day. He also maintained a cash book in which all the receipt as well as disbursements were shown. The peon Ram Dayal Singh also maintained a note book in which he noted the amounts received by the Appellant from the Tax Collectors every day. The challans after being received by the Appellant in connection with the deposits made each day were kept by him in an almariah and were available for checking up the accounts of the payments made from time to time in the account of the Municipality with the Bank.

3. A sum of Rs. 4,887/4/- had been collected by the 5th October 1949 but had not been deposited with the Bank upto the 9th November 1949. Two challans bearing Nos. 257 and 263 were prepared by the Appellant on 9-11-1949 for the respective amounts of Rs. 2,522/- and Rs. 2,365/4/- aggregating to Rs. 4887-4-0 and sent to the Treasury Officer for his initial through the peon Ram Dayal Singh. A sum of Rs. 5,262-1-3 had been collected by the 29th October 1949 but had been deposited with the Bank upto the 11th November 1949. The Appellant on the 11th November 1949 prepared a challan bearing No. 225 in respect of this sum and sent it to the Treasury Officer for his initials through the peon. The amounts of Rs. 4,887/4/- and Rs. 5,262-1-3 were in the ordinary course sent by the Appellant with the peon to the bank together with the respective challans and were deposited by the peon with the Bank and the respective challans with the stamps of the receipt of the payment duly initialled by the Cashier of the Bank were brought back by him and handed over to the Appellant and wer