The evidence of a witness who died before cross-examination is not admissible under Section 33 of the Indian Evidence Act unless the accused had a right and opportunity to cross-examine the witness after the framing of the charge.

Mukherji, J. :- Criminal Appeal No. 441 of 1973 arises out of Special Court Case No. 6 of 1967 against an order of conviction and sentence passed by Shri S. K. Ghosh, Judge, Special Court, Nadia, dated 30-7-73 under Section 409 I. P. C. sentencing the appellant to suffer R. I. for 2 years and to pay a fine of Rs. 8,000/-, in default, to suffer R. I. for another term of 2½ years. Criminal Appeal No. 442 of 1973 arises against an order of conviction and sentence passed in Special Court Case No. 1 of 1968 passed by Shri S. K. Ghosh, Judge, Special Court, Nadia, dated 31-7-73 sentencing the appellant to suffer R. I. for 2½ years and to pay a fine of Rs. 1200/- in default, to suffer R. I. for another term of 3 years. The accused was also sentenced to suffer R. I. for one year under S. 468 I. P. C. on each of the two counts, and to pay fine of Rs. 500/- on each of the two counts, in default, to suffer R. I. for another term of 3 months on each count. It was ordered that the substantive terms of imprisonment will run concurrently.

2. The prosecution case in Special Court Case No. 6 of 1967 is as follows :- During the period from 16-12-62 to 30-3-63 accused Kalyan Kumar Lahiri was at the material time an Assistant Revenue Officer of Birnagore under the Sub-divisional Officer, Ranaghat. His duties included realisation of different kinds of Government loans, such as Agricultural loan, cattle purchase loan, Artisan loan, Fertiliser loan, House Building loan and other loans from the debtors and depositing the money in the Ranaghat Branch of the State Bank of India. During the period from 16-12-62 to 30-3-63 the accused realised a total sum of Rupees 12753.17 paise from the various loanees as per 6 duplicate carbon receipt books. But, instead of depositing the entire money with the above Bank or crediting it to the Government, committed criminal breach of trust in respect of Rupees 11070.56. Shri B. N. Mondal, the then Sub-divisional Officer of Ranaghat, lodged a written F.I.R. on 4-4-64 with Ranaghat Police Station alleging Criminal misappropriation of Government money by the accused. The police received the said F. I. R. on 12-4-64, started a case and took up investigation. Documents were seized. Witnesses were examined. The accused was arrested. Specimen writings and signature along with the questioned writings were sent to the handwriting expert. A prima-facie case was made out under S. 409 I. P. C. A Government order allotting this case to the Special Court was obtained. A complaint was filed to the said court by the Public Prosecutor on 9-8-67. The police submitted charge-sheet after several witnesses were examined. A charge was framed by the learned Judge under Sec. 409 I. P. C.

3. The accused pleaded not guilty. He admitted realisation by him of the entire amount in question. But totally denied the misappropriation. According to him, he deposited the entire amount in the State Bank of India, Ranaghat Branch, in instalments, sometimes personally and sometimes through his open Abhimanyu, since deceased. The learned Judge found that the accused committed criminal breach of trust in respect of Rs. 4322.84 and convicted and sentenced him as stated above. Being aggrieved by the aforesaid order of conviction and sentence the present appeal has been filed.

4. The prosecution case in Special Court Case No. 1 of 1968 is that from the period between 21-12-61 to 30-3-62 the accused realised a total sum of Rupees 8637.00 from various loanees of Betai collection Block under 5 duplicate carbon receipt books. But, instead of depositing the said amount in the Bank or crediting it to the Government, misappropriated the same after forging some of the pages of the said D. C. R. books on 24-1-62 and 8-2-62. A written F. I. R. was lodged by Shri B. Bakshi, Officer-in-charge of Loans, Krishnagore, on 25-9-63 with Tehatta Police Station. The police started a case, seized documents, examined witnesses, arrested the accused, took specimen writings and