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1971 Supreme(SC) 621
SUPREME COURT OF INDIA
A.N. RAY AND D.G. PALEKAR, JJ.
Rasul Mohammad Hanif Gujandaj, Appellant
Versus
The State of Maharashtra, Respondent.
Criminal Appeal No. 252 of 1968, D/- 25-11-1971.
Advocates appeared
Mr. P. N. Tewari, Advocate, amicus curiae, for Appellant; Mr. M. C. Bhandare, Sr. Advocate, (Mr. B. D. Sharma, Advocate, with him), for Respondent.
Headnote:
Indian Penal Code,1860 - Sections 409 and 477-A - Appeal Against Conviction - Abstract Bill for payment of rent - Head Clerk in Office of the Diagnostic Centre Employees State Insurance Scheme Sholapur - In-charge of Centre who was Medical Officer - Office was situated in building owned by Dhanrajgirji Hospital Sholapur and Centre had to pay monthly rent to managing trustee of Hospital - Abstract Bill was sent to Treasury and which was a Saturday amount was withdrawn from Treasury by appellant - Amount was shown as received from Treasury and on same date a debit entry was made to effect that it was paid to Hospital by way of rent - Whether he had received amount of rent for period already referred to replied that amount had not been received - Whether Head Clerk Joshi of Hospital in telling truth or appellant is telling truth - Held, Objection Book itself was not produced before Court and there is nothing to show that within a reasonable time after receipt of Contingency Bills non-receipt of voucher as per abstract Bill No had been intimated to Centre - We are informed that such objections are to be noted in Objection Book within a week of receipt of Contingency Bills - In any event it is clear from evidence that till wrote to accountant General Office five months later Accountant General Office had not informed Centre that original voucher for Abstract Bill No had not been received in Office - It is quite likely that original document might not have been sent at all by appellant - But it is equally probable that it might have been sent and same is missing - There was an original receipt for amount of rent paid to Hospital - On one hand therefore there is evidence of Head Clerk Joshi of hospital that no payment had been received by him and he had not issued any receipt for rent and on other hand there is evidence of which clearly shows that there was a document in Officer which purported to be a rent receipt issued by Hospital - Simplest way therefore of establishing truth of matter would be to obtain original receipt from Accountant General Office - It if was a genuine receipt issued body Hospital it would only show that Head Clerk Joshi must have misappropriated amount after issuing receipt - On other hand if it was not a genuine receipt given by Joshi on behalf of Hospital case against appellant would automatically stand proved - Appeal allowed
Judgment
PALEKAR, J.:- This is an appeal by special leave from an order of the High Court of Bombay summarily dismissing the appeal filed by the appellant from the order of conviction and sentence passed by the learned Additional Sessions Judge, Sholapur. The appellant, was found guilty of the offence under Sections 409 and 477-A of the Indian Penal Code and was sentenced to rigorous imprisonment for three years and a fine of Rs. 1,000/-
2. The appellant was the Head Clerk in the Office of the Diagnostic Centre (hereinafter called the Centre) Employees State Insurance Scheme, Sholapur. The in-charge of the Centre was Dr. Gajanan Dattatraya Joglekar who was the Medical Officer. The Office was situated in the building owned by the Dhanrajgirji Hospital, Sholapur and the Centre had to pay monthly rent to the managing trustee of the Hospital.
3. On 24-9-1964 the appellant prepared Abstract Bill No. 16 for Rs. 827.42 n.p. for the payment of rent 30-6-1964. The Abstract Bill was sent to the Treasury and on 7-11-1964 which was a Saturday the amount was withdrawn from the Treasury by the appellant. On 9-11-1964 the amount was shown as received from the Treasury and on the same date a debit entry was made to the effect that it was paid to the Hospital by way of rent. The Cash Book was checked and signed by Dr. Joglekar and Dr. Joglekar has admitted that he had seen and verified on 9-11-1964 that a receipt for the amount had been received from the Hospital for the amount paid to it.
4. On 31-5-1965 the appellant prepared detailed Contingency Bills Nos 6 to 10 for being sent to the Accountant General, Bombay. The rules required that these Contingency Bills should countain all the withdrawals and disbursements made by the Office and must be supported by the Abstract Bills and the receipt and vouchers in the original Accordingly, the original receipt received from the Hospital in connection with the payment of the above rent had also to be sent along with the detailed Contingency Bill Detailed Contingency Bill No. 6 made reference to this Abstract Bill No. 16 and it is the case of the appellant that in the due course of official business this original receipt for rent accompanied that particular Contingency Bill At the time when these bills were sent to the Accountant General, Bombay i.e. on 31-5-1965, Dr. Joglekar was on leave but one Dr. Miss Shirshikar was holding the charge of the Centre. Dr. Shirshikar admits that at the time when these Contingency Bills were sent, a true copy of the rent receipt had been prepared by the appellant for being kept in the Office record and that she had checked this true copy with original rent receipt which had to be sent to the Accountant General. Office routine in the Accountant General s Office requires that if any objection is raised with regard to the detailed Contingency Bills which had been received by the Accountant General s Office, the same is to be immediately noted in what is known as the Objection Book . If vouchers which should accompany the detailed Contingency Bills are not sent along with the bills, objections would be raised forthwith and the concerned office intimated about the same.
5. It appears that some five months later, an internal audit party came to audit the accounts in the Office of the Centre. It is not clear from the evidence how Dr. Joglekar same to know that this particular rent had not been paid. He says that somebody in the audit party told him about it. But that does not appear to be correct because the audit party could have no reason to suspect anything because the Cash Book showed the amount of the payment on 9-11-1964 and there was the true copy of the receipt from the Hospital. But it is a fact that on 1-11-1965 Dr. Joglekar wrote to the Managing Trustee of the Hospital, Dr. Mulay, and asked him whether he had received the amount of rent for the period already referred to. Dr. Mulay replied that the amount had not been received. So Dr. Joglekar wrote to the Office
