Ranawat, J.—This is an appeal by Ratan Lal against the judgment of the Sessions Judge Bharatpur, dated the 26th April, 1954, convicting him under sec. 409 I.P.C. and sentencing him to one years R. I. and a fine of Rs. 100/-or in default 3 months further R. I. Out of the fine, if paid, Rs. 50/- were ordered to be paid to the Post Office at Bharatpur. The appellant was acquitted of the offences under sec. 477-A I.P.C. and sec. 5(2) of the Prevention of Corruption Act.

2. The prosecution case is that one Sher Singh sent a money order from Kesarganj, Meerut, which was addressed to Rambaboo, Tailor Master, Additional Mathura out-gate Gulal Kund Nali, Bharatpur The amount was entrusted by the Post Office to the accused, Ratanlal, along with the money order form, who was the postman, for disbursement to the addressee on the 28th of May, 1953, and the same day the accused returned the form purporting to have been duly signed by Rambaboo, the addressee, and one witness Kalli Ram Master. Rambaboo, complained to the Post Master on the 7th of July, 1953, that his money order had not been delivered to him and the case was then enquired into. After proper sanction the accused was prosecuted under secs. 477A and 409 I.P.C. and sec. 5(2) of the Prevention of Corruption Act. The case was committed to the Court of Sessions at Bharatpur and the learned Sessions Judge after holding a trial acquitted the accused of the other two offences but convicted him of the offence under sec. 409 I.P.C. and sentenced him as stated above.

3. The case of the defence was that the accused received the amount of Rs. 50/- from the Post Office, Bharatpur, along with the money order form and he made payment to a person who alleged himself to the Rambaboo and who was identified by another parson, Kalli Ram Master, to be such and that the accused did not dishonestly misappropriate the amount or convert it to his own use in any other manner. In his statement the accused further stated that he had been posted in that locality only a few days before this occurrence took place and he made enquiries in order to find out the house of the addressee and while he was going towards the house which was as that of the addressee, two persons met him and he asked them about Ram Baboo and told them that there was a money order for him. One of them, he stated, told him that he was himself Rambaboo and demanded the money order and the other identified him. The accused honestly believed that person to be the real addressee and he made payment to him and obtained his signatures of receipt and also took the signature of the other in witness thereof and paid the amount of the money order to him. The accused has further added that as he was new and as he was afraid of a complaint against him for troubling people he made the payment promptly without further enquiries for ascertaining the identify of the addressee.

4. Mr. Jain on behalf of the appellant has urged that the prosecution has failed to discharge its burden of proving generally that the accused had dishonestly misappropriated the amount of the money order and the offence, therefore, should be taken to have not been proved against the accused.

5. The learned Sessions Judge has observed in his judgment as follows: —

"It is not possible for the prosecution to prove how the money had been misappropriated. Once it is proved that the amount was entrusted to the accused, the burden of proof shifted on him to show what he did with that money (R.L.W. 1952 page, 194). When the accused could not account and the payment as alleged by him is not believed, the natural inference is that he misappropriated it. The accused is guilty of criminal breach of trust and the guilt under sec. 409 I.P.C. is brought home to him upto hilt."

6. It may be pointed out that the judgment referred to above by the learned trial court (1952 RLW page 194) does not support the observation of the learned Judge in the manner in which the learned Judge has tried to take help fr

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