Judgement

SIKRI, C.J.I.: This appeal by Special Leave is directed against the judgment of the Punjab & Harayana High Court dismissing the revision petition under Section 439 of the Criminal Procedure Code and confirming the conviction and sentences of the appellant Des Raj under S. 406, I.P.C.

2. The relevant facts are as follows :

The Managing Committee of a cooperative society, known as The Banga Urban Co-operative Thrift and Credit Society Ltd. Banga, passed a resolution on August 26, 1963, to raise a loan of Rs. 4000/- from the Nawansher Central Co-operative Bank, Banga. The Society authorised the appellant, who was an ordinary member of the society, to receive Rs.4000/- from the Bank on the basis of a promissory note executed by some members of the Executive Committee on behalf of the Society.

3. The learned Counsel for the State has not been able to explain why none of the officials of the Society was authorised to draw the money and why the appellant was chosen to receive the money from the Bank. It appears that the Secretary of the Society, Mahnga Ram had authenticated a copy of the resolution. According to the Manager of the Bank, the Secretary of the Society, Mahnga Ram, had accompanied the appellant when the payment was made to him in the Bank and also attested the signatures of the persons on the Management of the Co-operative Society. The resolution does not contain any instructions as to what the appellant had to do with the money but according to the President of the Society the appellant had to pay the money to the Cashier, Balbir Singh, who would make the entry in the accounts. Balbir Singh, unfortunately, is dead. On 23rd of December, 1963 a notice was sent by the Sub Inspector of the Co-operative Society, Banga, to the appellant stating that he had withdrawn Rs. 4,000/- on 28-8-1963 but had not got the amount so received entered in the books of the Society, and an explanation was called for. In his reply dated Junuary 9, 1964, the appellant stated that as per instructions of the Commitee he had given the amount to Shri Mahnga Ram, Secretary of the Society, and he did not know as to whether the aforesaid amount was entered in the books or not. He said that it was only on the receipt of the notice that he had come to know that the entries regarding this amount had not been made. He said that the money was paid to Secretary, Mahnga Ram, in the presence of Sarwan Ram, Piara Singh and Satnam Singh at the repair shop of Sarwan Ram. On January 31, 1964, the Sub-Inspector called upon the appellant to produce written proof in support of these two statements viz., about the instructions of the Committee and regarding the payment of the amount to the Secretary .

4. The appellant was charged under Section 406 of the Indian Penal Code for having committed criminal breach of trust in respect of Rs. 4,000/- entrusted to him. It is amazing that the President of the Society stated that Balbir Singh, deceased, had orally brought to his notice that the money had not been diposited by the appellant with him, and yet he said that no written demand on the appellant was made for payment of the amount with drawn from the Bank. He did not even say that he orally complained to the appellant. He further stated that Mahnga Ram had absconded, and was still absconding at the time when the evidence was being taken in January, 1967. There is no doubt that the appellant admits that he received the money. The only question is whether there is any evidence that he had mis-appropriated the money. The appellant examined 3 witnesses in his defence. D.W. 1 Sarwan Ram, a cycle repairer, stated that the appellant had paid the money to Mahnga Ram in his presence at his shop on August 28, 1963. He said that he did approach the police and told them that the payment had been made in his presence but he did not make any written application to anybody. The fact that he did not make a written complaint has been commented upon by the learned Magistrate. We do n