JUDGMENT - (1) This is an appeal by the State of Bombay against an order of acquittal passed by the Additional Sessions Judge, Mehsana, acquitting in appeal the accused Dahyalal dalpatram who was conviced by the Judicial Magistrate, First Class, Radhanpur, of an offence under S. 409 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs. 200/-.

(2) The accused Dahyalal was employed in the revenue Department of the State of Bombay as a Talati of the Piparala Seza which consists of four villages- Piparala. Raza, Madhatra and Cramdi in the Santalpur Taluka of Radhanpur Sub-Division District Banaskantha. One Vagha Ganga had unauthorisedly cultivated land near the village pond of Roza in the year 1951-52 and 1952-53. An enquiry was started by the Mamlatdar of Santalpur in that behalf and the Mamlatdar directred the accused to recover from Vagha Ganga Rs. 4/- as fine for each year for unauthorised cultivation and Rs. 1/12/- as assessment. In enforcement of the order of the Mamlatdar, the accused recovered from Vagha Ganga Rs. 13/9/- sometime between 18th May, 1955 and July 1955, but he did not credit the amount in the revenue account. The accused was transferred to another village in the month of July 1955 and one Ganesh was appointed Talati of Piparala Seza. Ganesh inspected the revenue accounts are found that Vagha Ganga was shown as a debitor for the amount directed to be recovered from him as fine and assessment, and he accordingly called upon Vagha Ganga to pay the amount. Vagha Ganga appeared before Ganesh and showed him a receipt issued by the accused Dahyalal acknowledging receipt of Rs. 13/9/- from Vagha Ganga. Thereafter an enquiry was started against the accused, and in the course of the enquiry the accused made two statements before the Prant Office Radhanpur. In his first statement, dated 1st May, 1956, the accused told the Prant Officer that he had given the receipt for Rs. 13/9/- to Vagha Ganga in acknowledgment of receipt of the amount, and that the amount was not credited in the Goveernment Treasury nor was it credited in the Government accounts and it had remained with him "due to oversight" but he had not intentionally committed any default. In his reply to the notice isssued to him, the accused informed the Mamlatdar that the amount which was recovered by him from Vagha Ganga was not recovered by him as Government dues", that after he had returned the same to the latter and that he had not misappropriated the amount and that he had obtained a receipt from Vagha Ganga for repayment of the amount. The accused was thereafter charged before the Judicial Magistrate, First Class, Radhanpur, for having commited criminal breach of trust in respect of the amount of Rs. 13/9/- and having thereby committed an offence under S. 409 of the Indian Penal Code.

(3) Before the learned Magistrate the accused contended that the State of Bombay was not entitled to recover from the cultivators of Jagagirdari lands, assessment or fine for unauthorised cultivation and that the Jahagirdar of the village was entitled to recover the same till the Jahagir Abolition Act was brought into force on 1st August, 1954 and that one Viramji Harbhanji jahagirdar of the villageRoza had asked him to recover the amount from Vagha Ganga and he had recovered the same from Vagha Ganga and had passed a receipt and subsequently the amount was returned to Vagha Ganga who paid over the same to the Jahagirdar and therefore, he - the accused - had not commited any offence.

(4) The learned trial Magistrate held that the accused had recovered the amount of Rs. 13/9/- from Vagha Ganga and had misappropriated the amount, that the State of Bombay was entitled to recover the amount and that the story of the accused that he had returned the amount to Vegha Ganga was untrue. He accordingly convicted the accused of the offence charged against him.

(5) Against the order of conviction an appeal was preferred by the acc

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