The judgment establishes the application and interpretation of Section 409 of the Indian Penal Code in convicting the accused for misappropriation of funds.

M.G. Giratkar, J.

The present revision application is against the judgment of Ad-hoc Additional Sessions Judge, Wardha confirming the judgment of Judicial Magistrate, First Class, Arvi, by which the applicant is convicted for offence punishable under Section 409 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and shall pay fine of Rs. 2000/-, in default shall suffer four month rigorous imprisonment.

2. Heard Shri M.B. Naidu, learned counsel for the applicant. He has pointed out cross examination of P.W.2-Mangala and submitted that in the absence of applicant, the cupboard was opened. In the cupboard, the applications were found. There is nothing on record to show that the applicant accepted those applications and amount of copying fees from the concerned clerk. Therefore, benefit of doubt be given to the applicant/accused. Learned counsel has pointed out decision Vasant Moghe Vs. State of Maharashtra reported in, (1979) AIR SC 1008, at last, he submitted that the prosecution has failed to prove the receipt of Rs. 450/- from the clerk of the concerned Advocate by the accused. There is much more delay in lodging the report. Therefore, the applicant/accused is entitled for acquittal.

3. Shri Thakre, learned APP has supported the judgment of trial Court and pointed out the decision in the case of Som Nath Puri Vs. The State of Rajasthan reported in, (1972) 1 SCC 630, to substantiate his stand.

4. The evidence of P.W.1 shows that he was working as Registrar at District Court, Wardha. The accused was working as Junior Clerk in the year 2004 at J.M.F.C. Court Arvi. The accused accepted an amount of Rs. 450/- towards copying fees, but he has not deposited the same in the Government Account. He has verified the record and after satisfying that the accused has misappropriated the amount of Rs. 450/-, he lodged a report against the accused. During the course of cross examination, he has stated that he lodged report on the basis of the documents and he has no personal knowledge in respect of the day-to-day work of the J.M.F.C. Court at Arvi.

5. P.W.2, Mangala, was working as Assistant Superintendent at J.M.F.C. Court Arvi. It was her duty to supervise all the staff. At the end of the day, she used to receive copying fees, fine amount, etc. along with concerned receipt books from the concerned clerk. She has stated in her evidence that accused was working on the table of certified copy. On 10th March, 2004, the accused was on leave. Thereafter, he remained absent without prior permission on 11th and 12th March, 2004. On 10th March, 2004, nobody approached to the office for certified copy. But on 12th March, 2004, one Gulhane came to the office and Shri Shirbhate Attorney of Advocate along with client and stated her that he has given an application for certified copy along with fees for certified copy, but he did not receive the receipt. On 12th March, 2004, she directed Junior Clerk, Shri Hadwe, to work on the table of accused.

6. When Hadwe has opened the cupboard and verified daily book, receipt book, copying register, etc. he found that 18 receipts on which there was signature of clients (in receipt book) and some receipts were scraped.

It was brought to the notice of P.W.2 Mangala.

7. P.W.2 Mangala, Assistant Superintendent, checked the cupboard and then, she found 17 applications for certified copies. All those applications were received by the accused and the amount of fees were also received by the accused. She has pointed out all the applications to the J.M.F.C., Shri Tikhile, She has stated that the accused not handed over amount of copying fees to her. Therefore, it was not taken in the cash book.

The Presiding Judge of J.M.F.C., Court Arvi, Shri Tikhile, also verified all the entries. According to P.W.2-Mangala, she has submitted her detailed report to Civil Judge, Jr.Dn.Arvi, Shri Tikhile.

8. From the perusal her cross-examination, no material is brought on record what has pointed out in her