JUDGMENT

1. The appellant R.A. Byrne has been tried as an European British subject by a Justice of the Peace and Magistrate of the First Class, Ferozepore, on three charges under 8. 409, Indian Penal Code, has been found guilty on each charge and has been sentenced to an aggregate of six months' rigorous imprisonment and a fine of Rs. 400/-.

2. The finding of the Magistrate is as follows.

3. The appellant, Byrne, was station Electrical Engineer, Ferozepore, up to 31st August 1921. On 1st March he presented a cheque for Rs. 98/7/-at the Alliance Bank Simla, Ferozepur, received payment and failed to account for the money or to deposit it in the Government Treasury. The cheque had been sent to him by the Quartermaster of the Welch Regiment in payment of a charge due to Government. It was drawn?= by Lieutenant Allen of the Welch Regiment on the 2nd February 1921 in favour of the Quartermaster or bearer. It was endorsed on the back by Lieutenant Edwards, the Quartermaster, and was further endorsed "pay self" and signed by the appellant. The original words written were "pay to Babu Munsa Ram;" but the last four words were scored through and the words "self" written above. This cheque and its proceeds were the subject of the first charge and it was found by the learned Magistrate that the appellant being a public servant had committed criminal breach of trust in respect of them and for the offence he was sentenced to three months' imprisonment and a fine of Rs. 200/- with three weeks further imprisonment in default of payment of fine.

4. Subsequently, so the Migistrate holds, on the 21st March 1921 the proceeds of a similar cheque for Rs. 269/3/3, dated 18th March were misappropriated by the appellant, bis endorsement in this case being confined to his own signature. Finally on the 4th May 1921 the appellant received Rs. 119/-8/-in cash from the Quartermaster of the Welch Regiment and omitted to show it in his accounts or credit it in the Treasury. The appellant was charged separately with an offence under Section 409 for each of these amounts and was found guilty on both charges. He was sentenced for the two offences to a further term of three months' rigorous imprisonment and another fine of Rs. 200/- with three weeks imprisonment in default of payment. The two sentences of imprisonment were ordered to run consecutively.

5. There is no doubt of the correctness of the convictions in respect of the two cheques. The evidence that the appellant received the cheques and endorsed them and that he did not pay into the Treasury or enter in his accounts their amounts is not contested. All that is disputed is the Magistrate's finding that he cashed the cheques himself and retained the money. This finding is supported principally by Arjan Das cashier of the Bank who has deposed that he paid to the appellant personally the amount of each cheque. The witness is able to state this positively because invariably he requires the person who gets the money to sign on the back of the cheque, whether the cheque is a bearer cheque or not. The fact that the Agent of the Bank called for the defence has stated that the cashier cannot legally refuse to pay a cheque without such endorsement does not prove that Arjan Das is lying when he says that this is his practice. Arjan Das has no ostensible reason for giving false evidence against the appellant and the theories of the appellants' Counsel for his doing so are quite unintelligible. The defence is able to suggest no other particular person who cashed the cheques. I am asked to hold that it is possible that the appellant sent some chaprasi or clerk to get the money and that the cashier did not obtain the signature of that person. Having done so, I am next to suppose it possible that the appellant having endorsed the cheques and given them to some messenger unspecified, made no demand for the money or enquiry when the messenger returned and took no steps to have any record of the cheque made in his books owing to