Judgment

KHANNA, J. :- Bali Ram Prasad was convicted by Magistrate Ist Class Shorapur under Section 409, Indian Penal Code and was sentenced to undergo simple imprisonment for a period of 90 days and to pay a fine of Rs. 100/- or in default, to undergo simple imprisonment for a further period of one month. On appeal the Sessions Judge Gulbarga maintained the conviction of the accused but reduced the sentence of imprisonment to the period already undergone. The sentence of fine and of imprisonment in default was maintained. Revision filed by the accused was dismissed by the High Court of Mysore. Bali Ram Prasad has now come up in appeal to this Court by special leave.

2. The prosecution case is that during the years 1959 and 1960 the accused was posted as Revenue Inspector in Shorapur Tehsil in Gulbarga District. Some amount was due from Bhimsha, excise contractor and in that connection, Rs. 946/- were paid by Bhimsha to the accused on January 22, 1959 as per receipts P-2, P-3 and P-4 for Rs. 730/-, Rs. 106/- and Rs. 110/- respectively. The accused deposited Rs. 810/- out of the amount realised from Bhimsha on January 27, 1959 in the treasury and failed to deposit the balance. Rs. 136/- were thus misappropriated by the accused. Subsequently, it was brought to the notice of Advi Rao (PW. 1) who was successor of the accused, that Rs. 946/- had been paid to the accused by Bhimsha, Advi Rao reported the matter to the higher authorities. Inquiry was thereafter started against the accused. After the commencement of the inquiry Rs. 130/- were deposited in the treasury by Laxman Prasad (DW), brother of the accused, on November 9, 1960, Rs. 6/- were also deposited but the date of deposit is not clear on the record.

3. The accused in his statement under Section 342, Code of Criminal Procedure denied all the prosecution allegations. In defence Laxman Prasad, brother of the accused, was examined as witness. According to Laxman Prasad, he did not deposit Rs. 130/- in the treasury on November 9, 1960.

4. The Courts below accepted the prosecution case that the accused had received Rs. 946/- from Bhimsha on January 22, 1959 as per receipts P-2, P-3, and P-4 for Rs. 730/-, Rs. 106/- and Rs. 110/- respectively. It was also found that out of the amount realised by the accused in his capacity as Revenue Inspector he had deposited a sum of Rs. 810/- only on January 27, 1959. The accused was, thus, found to have misappropriated the balance amount of Rs. 136/-. The deposit of that amount after the commencement of the inquiry, it was held, did not exculpable the accused.

5. We have heard Mr. Tawakley on behalf of the accused-appellant and are of the opinion that there is no merit in the appeal. According to Mr. Tawakley, the accused received Rs. 810/- only on January 22, 1959 from Bhimsha and issued receipt for Rs. 946/- on the representation of Bhimsha that the balance would be paid to the accused subsequently. It is submitted that whatever amount had been realised by the accused from Bhimsha was deposited by him in the treasury and as such there was no criminal misappropriation by him. We find it difficult to accept this contention. The accused admittedly issued receipts P-2, P-3 and P-4 for Rs. 730/-, Rs. 106/- and Rs. 110/- in favour of Bhimsha on January 22, 1959. If the accused had, in fact, received an amount of Rs. 810/- only and not Rs. 946/- this fact would have been mentioned by him in the forefront of his statement under Section 342, Code of Criminal Procedure. The accused, however, made not even the slightest suggestion to that effect in his statement under Section 342, Code of Criminal Procedure. On the contrary, his plea was denial simpliciter.

6. Argument has then been advanced on behalf of the accused-appellant that Bhimsha, who was not examined as a witness on the ground of being dead was alive during the trial of the case in the Court of the learned Magistrate and that he died subsequently on July 18, 1967. This stand has been controverte