Samiruddin Sarkar v. Nibaran Chandra Ghose Opposite Party.

This is a Rule calling upon the District Magistrate to show cause why the conviction of the Petitioner under sec. 408 of the Indian Penal Code should not be set aside, the first ground being that the trial should have been confined to three instances of alleged misappropriation occurring with the period of one year.

The charge recites that the accused realised by certain rent receipts 23 in number the sum of Rs. 103 of which the accused misappropriated the sum of Rs. 67. We think such a charge comes clearly within the provisions of cl. (2) of sec. 222 of the Code of Criminal Procedure. By specifying the rent receipts the charge went beyond what was necessary and was to this extent favourable to the accused because it gave him an opportunity of meeting the accusation regarding the misappropriation of a gross sum Rs. 67. The case of Emperor v. Gulzari Lal is in point and supports this view of the matter.

The second ground is that the Sessions Judge does not appear to have given due consideration to the allegations of the accused that the rent receipts were tampered with by the raiyats and to the fact that only one witness gave evidence regarding each receipt.

It now appears that the rent receipts bear no sign of being tampered with and that they are supported by other evidence besides that of the tenants to whom the receipts were granted. As has been pointed out by the Deputy Magistrate in his explanation, the witness Bholanath proved certain receipts. Sheriatullah Munshi who knows the handwriting of the accused proves it upon ten of the receipts.

Under the circumstances we see no reason to interfere. The Rule is discharged, and the prisoner must surrender to his bail in order to serve out the remainder of his sentence.

Rule discharged.