1. In Sessions Case No. 5 of 1952 of his file, the Sessions Judge of Nagercoil convicted the appellant in this case under Sections 409 and 477A, Penal Code and Sections 53 and 55, Indian Post Office Act and sentenced him to undergo rigorous imprisonment for one year under Section 400, Penal Code, six months under Section 477A, Penal Code, and one year under Sections 53 and 55, Post. Office Act, directing the sentences to run concurrently. This appeal is filed against the said convictions and sentences. In the early part of 1951 the appellant was the Post Master of the Kandartvila Branch Post Office which is under the account jurisdiction of the Neyyoor Sub-Post Office. Botht these Post Offices were under the Inspector of Post Offices, Trivandrum Sub-Division, till 31-3-1951, and are under the Inspector of Post Offices, Nagercoil Sub-Division from 1-4-1951. P.W 1 is the Inspector of Post Offices, Nagercoil, and P.W 2 is the Inspector of Post Offices, Trivandrum. P.W 4 is a sales man of a company known as Brooke Bond India Ltd., which has its head quarters at Brooke House 2 Metcalfe Street, Dharmthala Post, Calcutta.

2. He used to remit money to his company at Calcutta by money orders sent through the Kandanvila Branch Post Office. The main charge against the appellant, who will hereafter be referred to as the accused, was that he committed criminal breach of trust, punishable under Section 409, Penal Code in respect of a sum of Rs. 300/- entrusted to him by P.W 4 on 5-4-1951 for sending a money order to the Brooke Bond India Ltd., Dharmthala Post, Calcutta, and another sum of Rs. 3-12 as entrusted to him on the same date as money order commission for the said money order. He was also charged under Section 477A, Penal Code for falsification of accounts in respect of these amounts, under Section 53 of the Post Office Act for wilfully detaining and delaying the money order, and under Section 55 of the same Act for fraudulent preparation of accounts and registers in respect of them. According to the Prosecution, the defalcation was detected by the Inspector of Post Offices, Nagercoil (P.W 1), when he inspected the Kandanvila Branch Post Office on 12-4-1951 in the company of the Inspector of Post Offices, Trivandrum, on account of reports made by the Sub-Post Master, Neyyoor, to P.W 2 about irregularities in the Branch Post Office and forwarded by the latter to him.

3. On the detection of the offence, P.W 1 reported the matter on the same day to the Sub-Inspector of Police, Eraniel; and the case was subsequently investigated and charged by the Circle Inspector of Police, Thuckalai. There was no dispute in this Court as to whether the accused was a “public servant” and as to whether P.W 4 had entrusted him with the amounts of Rs. 300/- and Rs. 3-12 as on 5-4-1951 for sending a money order to the Brooke Bond India Ltd., Calcutta. The evidence of P.Ws 1 and 2 and P.W 3 who is the Sub-Post Master, Neyyoor, proves conclusively that the accused was the Post Master of the Kandanvila Branch Post Office till 12-4-1951. In his statement in the Sessions Court, the accused admitted that on 54-1951 P.W 4 gave him Rs. 300/- for sending the money order and also Rs. 3-12-0 money order commission and that he gave the receipt, Ex. E3, for the same. The receipt shows that the money order was for Rs. 300/- and that it was addressed to the Brooke Bond India Ltd., Calcutta. It bears the seal of the Kandanvila Branch Post Office and the signature of the accused and is proved by P.Ws 1 to 3 who are familiar with his hand writing and signature and by P.W 4 who got it from the accused. P.W 4 also speaks to the fact of entrustment and its purpose. The evidence of P.Ws 1 to 4 on these matters is not questioned by the appellant's counsel.

4. It is also not disputed that the accused did not despatch the money order from the Kandanvila Post Office P.Ws 1 and 2 have deposed that they recovered the money order form which P.W 4 had given to the accused on 5-4-1951 from his table at the time of their inspection of the Kandanvila Post. Office on 12-4-1951. Exhibit G is that money order form. It is dated 5-4-1951 and is identified by P.W 4. The registers and account books of the Kandanvila Branch Post Office and Neyyyoor Sub Post Office, proved in the case by P.Ws 1 to 3, show that no money order corresponding to Ex. G was despatched from Kandanvila Post Office after P.W 4 gave the money order form and the amounts to the accused on 5-4-1951 and obtained Ex. E3 till the recovery of the form from the accused's table by P.Ws 1 and 2 on 12-4-1951. The accused had not even entered the amount of Rs. 303-12-0 received by him from P.W 4 in the accounts, registers, and statements of the Kandanvila Post Office. The explanation that is now given for the omission is that, as P.W 4 had paid the amount in small coins, the accused was keeping the money in order to change the small corns into currency notes or coins of higher denominations so that he could send the amount conveniently to the Neyyoor Sub-Post Office for transmission of the money order to Calcutta and that he had no dishonest intention in keeping the money.

5. In support of this explanation it is pointed out that P.W 4 admits that he had paid the amouns in small coins, that on prior occasions also there have been delays in transmitting the money orders-received from P.W 4, and that after the recovery of Ex. G from his table the accused has made good the amount. We are, however, unable to accept; this explanation. If the accused had no intention to dishonestly misappropriate the amount he would not have omitted to enter it in the account books registers. Not only did he omit to enter it in the account books and registers but he also made false entries in the counter-foil of Ex. E3. Exhibit E2 is the counterfoil. P.W 4 had entrusted the accused with Rs. 425/- on 29-3-1951 for sending another money order to the Brooke Bond India Ltd. For that money order the accused had given him the receipt, Ex. E5. The particulars entered in Ex. E2 relate to the money order for which Ex. E5 was given and not to the money order of 5-4-1951 for which Ex. E3 was given. The date stamp on Ex. E2 is that of 6-4-1951.

6. It is abundantly clear from these facts that the accused was committing systematic defalcations and covering up some of the earlier defalcations by despatching on later dates some of the earlier money orders with the help of the money received for subsequent money orders and entering the particulars of the earlier money orders in the counterfoils of the receipts issued for the subsequent money orders. Before the joint inspection on 12-4-1951, P.W 1 alone had inspected the Kandanvila Branch Post Office on 9-4-1951. On that occasion he verified the cash balance and found that it tallied with the accounts. Since the money order, evidenced by Ex. G, was not then entered in the accounts, from the fact that the cash balance tallied with the accounts it can be safely inferred that the accused had taken away from the Post Office the amount of Rs. 303-12-O entrusted to him by P.W 4 on 5-4-1951 for sending that money order. If the accused had not taken away that amount from the Post Office the actual cash balance on 9-4-1951 should have been more than the cash balance as per the accounts on that date and the two could not have tallied.

7. These facts prove conclusively that the accused had dishonestly misappropriated the amount entrusted to him for sending Ex. G and falsifying the accounts and registers to cover up the misappropriation. According to P.W 1, he recovered Ex. G from the accused's table at about noon on 12-4-1951. The fact that the accused paid up the amount under it at about 6 P.M that evening after the detection of the defalcation only shows-that he wanted to avoid consequences of his act and not that he had no dishonest intention. Under explanation 1 to Section 403, Penal Code a dishonest misappropriation for a time only is a misappropriation within the meaning of that section. In view or the facts and circumstances mentioned above, the accused is clearly guilty of the offences punishable under Sections 409 and 477A, Penal Code, and we hold that he has been rightly convicted under the said sections. Section 72 of the Post Office Act 6 of 1898 provides:

“No Court shall take cognisance of an offence, punishable under any of the provisions of Sections 51, 53, 54, clauses (a) and (b), 55, 56, 58, 59, 61, 64, 65, 66, and 67 of this Act, unless upon complaint made by order of, or under authority from, the Director-General or a Post Master-General”.

8. The learned Sessions Judge overruled an objection that was taken at the trial, on the strength of this section, that there was no complaint before him as required by law, saying in para. 11 of his judgment:

“P.W 2 the Inspector of Post Offices, Trivandrum Sub Division proves Ex. N letter sent by the Superintendent of Post Offices, Trivandrum Division, authorising him to prosecute the accused if a prima facie case was made out against him. It is argued by the Public Prosecutor that this is sufficient compliance with the provision of Post Office Act as it has to be presumed that the Superintendent must have acted under powers delegated to him by the Director General or Post Master General. As no written authority is contemplated under Section 72, Post Office Act, I accept his view. I therefore find that there is authority for P.W 1 and P.W 2 to take legal steps against the accused as contemplated under Section 72, Post Office Act”.

9. What is required by Section 72 is ‘complaint made by order of, or under authority from the Director General or the Post Master General’, and not a mere letter of authority from the superintendent to the Inspector to prosecute the accused or take legal steps against him if there is a prima facie case. In — ‘Emperor v. Rohini Kumar’, 10 Cal WN 1029 (A) it was held that a prosecution under Section 61, Post Office Act although authorised by the Post Master General is illegal unless such prosecution takes place on a complaint as defined in Section 4 clause (h), Criminal P.C There is no such complaint in this case. Further, Section 72 does not authorise the Director General and the Post Master General to delegate to another person the powers conferred on them by it.

10. In the absence of any provision for delegation, there is no room for a presumption that the Post Master General must have delegated his powers to the Superintendent of Post Offices, Travancore Division. If there was any delegation as a matter of fact the Prosecution could have easily proved the same by producing a copy of the order or proceedings. Since there is no complaint in this case as required by Section 72, we hold that the offences under Sections 53 and 55, Post Office Act cannot be taken cognizance of and that the conviction of the accused and sentence passed on him under the said sections are unsustainable.

11. For the reasons stated above, the conviction of the accused and the sentences passed on him under Sections 409 and 477A, Penal Code are confirmed; but his conviction and the sentence passed on him under Sections 53 and 55 of the Post Office Act are set aside. His bail bonds are cancelled, and he will be taken into custody.

B/G.M.J

12. Order accordingly.