Batty, C.J:— In the case to which appeal No. 469 relates the accused, a Range Forest Officer, was charged with having “misappropriated Rs. 21-6-9 by drawing the pay of one Sonu Copal, a fictitious person, with having prepared false bills, forged his name, and used as genuine forged documents known to be so, and falsified the accounts.”
2. The accused has been convicted by the Sessions Judge, concurring with one assessor. On appeal it has been urged that the accused is a public servant of 18 years service, that the amount is trifling, that the charges are possibly the result of a conspiracy, and that the accused No. 2 having at first alleged that payment to Sonu Copal has been made in his presence, on further investigation being directed, changed front, and admitted that he knew of no such person, and that this change of front indicates the probability of outside influence brought to bear on witnesses for the prosecution; and, further, it is urged that there are discrepancies in the evidence.
3. With regard to the insignificance of the amount said to have been appropriated, we have been informed that the pay of the accused, with allowances, amounts to Rs. 65 per mensem; and we, therefore, think that Rs. 21 might not be to a person in the accused's position so absolutely insignificant that any such insignificance would negative direct evidence of misappropriation.
4. The allegations as to enmity and possible conspiracy are not very definite, and though there are, no doubt, discrepancies in the evidence, the salient facts in the case, which are free from all taint and apparently indisputable, seem to stand quite apart from the defects which would diminish the value of the oral evidence adduced.
5. The prosecution alleges that Sonu Gopal, the alleged recipient of the sums said to have been misappropriated was never appointed, and it is proved that the only Sonu Copal known, never was appointed or made his mark or received any pay.
6. The accused alleges that he made an appointment of a Sonu Gopal (other than the man who has been called as witness) on the 25th of November as a substitute to Krishnadas Pai There are certain facts which militate against the probability of this allegation. Exhibit No. 70 shows that on the 18th of November Krishnadas Pai had been specially deputed to urgent work, and a direction to a subordinate forester was given by the accused to report in case Krishnadas Pai failed to appear at the work On the 23rd of November the subordinate forester in Exhibit No. 69 reported accordingly. On the 20th November, according to Exhibit No. 8, Krishnadas Pai left his work, and there was, therefore, according to the previous correspondence, urgent necessity for the appointment of a substitute in his place, and though Exhibit No. 74, dated the 25th November, purports to have appointed such substitute, and though Exhibits Nos. 7 and 18 of the 28th November show that an application for leave was accompanied by a recommendation of the accused for the appointment of a substitute, yet Exhibit No. 69, dated the 30th November, shows that no appointment was made for the purposes for which the substitute was urgently required, and that the subordinate who demanded the substitute was told to make other arrangement. There was no attempt to make any arrangement for the urgent purpose for which the appointment was said to have been necessary, and there is no mention of Sonu Copal until the 20th February exclusive of Exhibit No. 74, which is impugned as an antedated document.
7. There is no one who says he ever saw Sonu Copal, and the accused brings no one who ever had any dealings with him, Sonu Copal must certainly haveentered into some relations with persona in the neighbourhood. He must have had dealings with some persons for the purpose of daily supplies, and it is inconceivable that he should have been able to disappear without leaving any trace in the memory of anybody in the neighbourhood in which he was employed. He was employed three or four months as a substitute in the department, and yet no information can be obtained as to his place of residence or his antecedents or as to any other circumstances by which it would be possible to identify or trace him.
8. Seeing that this receipt of the money is disproved, and that his presence at the time of signatures on Exhibits Nos. 7, 8 and 9 is disproved it certainly rested with the accused to rebut the inference that arises in the circumstances, and show that there was such a man employed by him at the period for which he has charged Government in the bills.
9. The accused has also been charged with forgery. This offence does not appear to have been established, because on the statement of the case by the prosecution the monies said to have been misappropriated must have been taken from monies advanced before the misappropriation and the pay bills were only vouchers; the money not being obtained by means of vouchers, they appear to have been used rather for the purpose of screening the offender after the offences had been committed.
10. The intention, therefore required to be established by section 463 of the Indian Penal Code in order to constitute forgery does not seem to have been made out. The damage had been already caused, and fraud had already been committed, and therefore it cannot be said that the false document was prepared with such intent as is described in section 463.
11. We think the offence of falsification is part and parcel of the offence of misappropriation, and that the whole transaction must be considered practically as one offence consisting of criminal misappropriation.
12. We consider that in any case the sentence passed on the accused No. 1 is excessive, and that it must be reduced to one year's rigorous imprisonment. It is necessary before parting with the case to comment on the Magisterial examination of the accused by the committing Magistrate, Mr. S.V M???nsinkai. The accused protested at the time, but the Magistrate nevertheless persisted in what must have been a very embarrassing and cruel series of questions intended apparently rather to puzzle the accused than to elucidate the case, or to enable him to furnish an explanation as to the circumstances appearing in evidence against him, for which purpose alone the examination of an accused is permitted by the law. It is hardly to be expected that a man in so critical a position would be prepared to stand this severe cross examination to which he was subjected, and to meet every possible argument that might be adduced against him.
13. If ever the procedure which admits of the examination of accused persons requires to be altered it would be probably in consequence of such abuse of power as is illustrated by this particular instance.