The acts complained of, namely, misappropriation, cannot be said to have hinged on the duties of the accused as a public servant. They were unconnected with such duties.

( 1 ) THIS is an appeal by Makhan Lal Sen Gupta against his conviction under Section 409 of the Indian Penal Code by Mr. D. N. Chakladar, Judge, Special Court, Burdwan, He was sub-post master at Asansol Railpar Sub-Post Office on 30th July, 1952, and he was there from some time before that. In that Sub-post office there was no other officer. According to the prosecution version, on 30th July, 1952, P. W. 1 Barada Charan Chakrabarty who was then Inspector of Post Offices, Asansol Subdivision, inspected the Sub-post office in the presence of the accused. Verification of cash and stamps was the first item of inspection shortly after 4 P. M. On actual verification the Inspector found cash of Rs. 19-15 annas, postage stamps worth Rs. 156-4-3 pies, revenue stamps worth Rs. 19/- and National Savings Stamps worth Rs. 24/-, in all Rs. 210-3-3 pies showing a shortage of Rs. 316-4-9 pies. The Sub-post master could not account for the shortage. The first count of the charge under Section 409 of the Indian Penal Code against the accused is in respect of this shortage of Rs. 316-4-9 pies. After this shortage had been detected, Inspector Chakraborty proceeded with the inspection of the Sub-post office and detected various irregularities in connection with money orders. It was found that several money order receipts were left blank and some were not sealed with the date-seal. It was also found that in respect of several money order receipts which were shown as issued, their value had not been credited to the Government according to rules. In short, it was found that a sum of Rs. 728-9 annas on account of money orders was not credited to the Government and it is alleged that the accused misappropriated the same. This forms the second count of the charge under Section 409 of the Indian Penal Code against the accused. The substance of the second count of the charge is that between 28th to 30th day of July, 1952, the accused committed criminal breach of trust in respect of the sum of Rs. 728-9 annas being the values and commissions in respect of money orders Nos. 901-904, 917, 917 (sic), 931-940 and 956-961. The accused made a fairly lengthy statement under Section 342 of the Code of Criminal Procedure. The substance of that statement was that Inspector Chakraborty found the cash balance, stamps, etc. in order and endorsed a note in the Sub-post master's account book to the effect "checked and verified". What is alleged to have happened subsequently may be stated in the words of the accused :"as he (Inspector) wanted to take tea, I went out and brought a cup of tea and some biscuits. He took them. He then said that his two daughters had attained marriageable age and asked if I could render pecuniary help in connection with their marriage, I said that I was not very well off and requested him to excuse me. Later on, he struck off his previous remarks "checked and verified''. When asked why he had done that, he said that it was necessary and then wrote Money short to the extent of Rs. 316-4-9 pies. It is false. "as regards the money order commissions etc. said to have been misappropriated by the accused, the accused denied that he had done anything of the sort and in regard to the evidence of certain witnesses, namely, P. Ws. Fatoo Mal, Haripada Roy and Rajnarayan Thakur who had stated that they had made over certain amounts to the accused with money order forms, the accused's version was that these people did not make over any money to him nor any money order form.

( 2 ) THE learned Judge accepted the Prosecution version not being impressed with the defence set up by the accused and convicted him accordingly.

( 3 ) ON behalf of the appellant an objection has been raised for the first time in this Court regarding the competency of Mr. D. N. Chakladar to try this case. It appears that upon the transfer of Mr. G. Section Chatterji, Mr. Chakladar was appointed to try this case, the relevant Gazette Notification being No. 2615 G. A. /