Judgement

VENKATARAMA AYYAR, J. This is an appeal by special leave against the Judgment of the High Court of Allahabad affirming the conviction of the appellant by the Sessions Judge, Lucknow under sections 409 and 477-A of the Indian Penal Code.

2. On 12-2-1949 a Society known as the Model Town Co-operative Housing Society, Ltd., was registered under the provisions of the Co-operative Societies Act (II of 1912), its object being to acquire vacant sites in the town of Lucknow and to allot them to its members so as to enable them to build houses of their own. The appellant was the chief promoter thereof, and collected monies from prospective shareholders by way of share money. The first general body meeting of the Society was held on 1-3-1949.

At that meeting, the appellant was elected Honorary Secretary and one Sri Munna Lal Tewari as Treasurer. The later having resigned, one S. C. Varma was appointed Treasurer in his stead. On 22-4-1949, there was a meeting of the Managing Committee, at which the appellant was directed to hand over the accounts of the Society and its funds to its Treasurer. The appellant gave a list of 38 persons a members of the Society, delivered cheques issued by 13 of them as their share money, and paid a sum of Rs. 3,500 being the amount stated to have been received by him from the other 25 members as share money. The Society did not function there after.

3. On 16-7-1949 some of the members wrote a letter to the Registrar of Co-operative Societies pointing out that the Society had not functioned ever since its incorporation, and asking that steps might be taken for examination of its accounts and, if necessary, for its being wound up. On this, there was investigation of the affairs of the Society by two Assistant Registrars and on the basis of their reports dated 22-2-1950 and 18-5-1950 the present prosecution was started against the appellant charging him under section 409 and 477-A of the Indian Penal Code. The charge under section 409 was that he had received a sum of Rs. 500 from one Sri Chaturvedi, a sum of Rs. 100 from Dr. O. P. Bhanti and another sum of Rs. 100 from Dr. R. S. Seth, all as share money in December 1948, and that he had misappropriated the same.

The charge under section 477 A was that on 22-4-1949 the appellant acting as the Secretary of the Society falsified the minute book, Exhibit P-18, by omitting to show therein the share money received from the three persons above mentioned. The defence of the appellant was that the three amounts aforesaid were paid to him not as prospective Secretary for the purpose of allotment of shares, but were deposited with him in his individual capacity for purchasing shares, in case the Society worked well.

4. The trial of the offence under section 409 was held with the aid of assessors and that under section 477-A with the aid of a jury, the same persons acting both as assessors and jurors, and they returned a verdict of not guilty with reference to the charges under both the sections. The Sessions Judge, disagreeing with the verdict of the jury under section 477-A, referred the matter to the High Court under section 307 of the Code of Criminal Procedure.

He also disagreed with the opinion of the assessors with reference to the charge under section 409, and held that the appellant was guilty and sentenced him to four years rigorous imprisonment and a fine of Rs. 1,000. Against this conviction, the appellant preferred and appeal to the High Court. Both the reference under section307 and the appeal were heard together by the High Court, which agreed with the Sessions Judge that the appellant had received the three amounts as share money and in his capacity as Secretary, and accordingly confirmed his conviction under section 409 and the sentence passed by the Sessions Judge.

Disagreeing with the verdict of the jury, it also held him guilty under section 477-A and sentenced him to two years rigorous imprisonment. The present appeal by special leave is directed