Prosecution must present cogent evidence to establish misappropriation under Section 409; failure to meet burden results in acquittal.

ORDER :

G Basavaraja, J.

This Criminal Revision Petition is filed by the accused against the Judgment of conviction and Order of sentence dated 24^th March 2014, passed in CC No.79 of 2008 by the Principal Civil Judge & JMFC, Mulbagal (for short “the trial Court”), which is confirmed by I Additional Sessions Judge, Kolar (for short “the appellate Court) in Criminal Appeal No.28 of 2014 dated 6^th February, 2018.

2. For the sake of convenience, the parties herein referred to as per their rank before the trial Court.

3. Facts leading to this revision petition are that the Police Sub-Inspector, Mulbagal, submitted charge-sheet against the accused for offence punishable under Section 408 of INDIAN PENAL CODE . It is alleged by the prosecution that from 30^th January, 1999 to 28^th September, 2004, the accused was working as Branch Postmaster at Kothamangala Branch Post Office and during that period, the accused has dishonestly misappropriated the amount deposited by the customers. The same is as under:

“a) Not remitted Rs.4,200/- to the government deposited by CW.2-K.Narayanappa from 12.5.2003 to 20.9.2004 to his SB Account No. 193031.

b) Not remitted Rs.2,000/- out of Rs.2,250/- to the government which was deposited by CW.3- K.Suvarna from 27.1.2004 to 20.9.2004 to her RD A/c. No.241101.

c) Not remitted Rs.4,200/- to the government deposited by CW.4-Sarswathamma from 17.8.2002 to 21.7.2004 to her RD A/c.No.240742.

d) Not remitted Rs.1,600/- out of Rs.2,000/-deposited by CW.5-Venkatalakshmamma from 24.11.2003 to 23.9.2004 to her RD A/c.No.240425.

e) Not remitted Rs.6,000/- to the government deposited by CW.6-Vishalakshamma on26.2.2004 to her SB A/c. No.193602.

f) CW.7-R.Munireddy, Head Master, Govt Higher Primary School, Kothamangala had withdrawn Rs.600/- on 24.7.2003 and Rs.200/- on 29.10.2003 from SB A/c. No.191498, but the accused has drawn Rs.1,600/- and Rs.1,200/- respectively and has misappropriated excess amount of Rs.2,000/-.”

4. The accused, despite mentioning the deposits and withdrawal in the respective account Passbooks, has not remitted the amount to the Government and has drawn excess amount from the account of Headmaster, Government Higher Primary School, Kothamangala and has dishonestly misappropriated the amount and used for his own purpose, thereby committed the offence punishable under Section 408 of INDIAN PENAL CODE . The accused appeared before the trial Court and was enlarged on bail.

5. Upon hearing on framing of charges, the trial Court has framed charges for the offence punishable under Section 408 of INDIAN PENAL CODE . Thereafter, the charge was altered for the offence punishable under Section 409 of INDIAN PENAL CODE . The same was read over and explained to the accused in the language known to him. Accused, having understood the same, pleaded not guilty and claimed to be tried. To prove the guilt of the accused prosecution, in all, has examined, fifteen witnesses as PW1 to PW15 and marked 28 documents as Exhibits P1 to P28. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the incriminating evidence appearing against him but has not chosen to lead any defence evidence on his behalf.

6. Having heard the arguments on both sides, the trial Court convicted the accused for the offence punishable under Section 409 of INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for a period of two years with fine of Rs.10,000/- and in default of payment of fine, to und