Order: This is a revision on behalf of the accused against the judgment of the Sub-Divisional Magistrate, Bhimavaram, dated 28th November, 1955, dismissing his appeal and affirming the judgment of the Sub-Magistrate, Bhimavaram, holding him guilty under section 408, Indian Penal Code and sentencing him to 6 months’ rigorous imprisonment. The facts which gave rise to this revision are: The accused was working as a salesman of Ithampudi Co-operative Marketing Society at Kantheru from nth November, 1948 to 30th June, 1950. The procedure adopted by the Society for the issue of cloth to the salesman and taking remittances of the sale proceeds from the salesman was as follows: A register called salesman liability register was maintained at the Head Office. The salesman made cut indents under his signature and handed them over at the Head Office where the cloth was issued on each indent. The cloth issued on indents was entered in the salesman liability register on the date of issue in terms of its value in rupees, annas and pies. Against this entry in the salesman liability register both the salesman and the Secretary initialled in token of the issue as well as the receipt of the cloth. Whenever the salesman made remittances the same were entered in the salesman liability register under the initials of both the Secretary and the salesman and the liability of the salesman reduced to the extent of the money remitted. Besides the salesman liability register there were other registers such as the General Cash book, the Stock Book, the Daily Sales Register, etc., in which the transactions were also entered.

The liability Register which was maintained with reference to the cloth issued and the money remitted by the appellant from 1st July, 1949 to 30th June, 1950 is Exhibit P-5. On 1st July, 1949, the petitioner was issued cloth worth Rs. 3,309-11-0 on indents bearing Nos. 1 to 4. Thereafter the accused was submitting indents from time to time and drawing cloth. He was also making remittances from time to time. Both the entries of debit and credit have been initialled by the accused and the Secretary. By 30th June, 1950, the accused was issued cloth valued at Rs. 15,016-11-2. The remittances made by the accused came to Rs. 11,879-9-7. On 30th June, 1950, there was a stock valued at Rs. 1,293-6-7 with the accused. Thus there was a balance of Rs. 1,843-11-0 unaccounted. The accused subsequently paid a sum of Rs. 360 on 29th August, 1951 and Rs. 200 on 3rd November, 1951. The accused was charge-sheeted under section 408, Indian Penal Code. He denied the charge. His case was that he rendered correct accounts for the stocks received and that nothing more was due from him and that it was not a case of misappropriation. Four witnesses were examined on behalf of the prosecution. The accused examined four witnesses by way of defence. On the evidence produced the Sub-Magistrate held the accused guilty and sentenced him as above. His judgment was confirmed in appeal, and hence this revision.

The learned counsel for the petitioner relying on the case of King Emperor v. V. Krishnan1, and Gona Achayya v. Emperor2, contended that there was absolutely no evidence in the case to prove that the petitioner had dishonestly misappropriated the amount, and unless that is established the accused could not be held guilty. It was farther contended that the appellate Court relying on section 114 of the Evidence Act has dismissed the appeal raising a presumption against the accused. This, he contends, is not proper. Though the accused in this case has not accepted the liability in Exhibit P-7 there is the statement of P.W. 4 to show that the accused had admitted his liability. Both the Courts, on the evidence, have also held that the accused was liable to the extent of Rs. 1,283-11-0. The question that arises is whether the accused could be held guilty under section 408, Indian Penal Code, which is as follows:

“Whoever, being a clerk or servant or employed as a clerk o

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