Ramesh Datta Shengali v. State — 1994 DIGILAW 219 (BOM)

JUDGMENT (ORAL) A.A. Halbe, J. - Being aggrieved by the concurrent findings of conviction for offence under section 408 Indian Penal Code and conviction by the Learned Trial Judge i.e. Judicial Magistrate, First Class, Bicholim, dated 30th April, 1992 in Criminal Case No. 18/5/1982 and sentence to undergo R.I. for 15 days and fine of Rs. 5,000/- and the same having been confirmed by the Additional Sessions Judge in Criminal Appeal Nos. 11 and 12 of 1992, the petitioner/appellant in Criminal Appeal No. 11/92 has preferred this revision inter alia contending that the approach by both the Courts below is not only illegal, erroneous, but is fraught with serious legal infirmities inasmuch as the Courts have bypassed the important letter, dated 14.2.1978 by accused No. 1 in original complaint and that the said letter is to the effect that there was a clear admission on the part of the original accused No. 1 that the amount involved in the misappropriation was the amount which was in his custody and that he was responsible for the same. It is also urged that the same amount now has been tendered by the original accused No. 1. The learned advocate for the petitioner has further urged by drawing my attention to various observations of the Court below that at best the liability of the misappropriated amount of the present petitioner would be within the arena of civil liability, but on no reckoning a criminal liability, and in that light of the matter although this is a revision, this Court should interfere in the findings recorded by the courts below and should allow the revision and set aside the conviction and acquit the petitioner of the offence under Section 408, I.P.C. 2. The learned Public Prosecutor, on the other hand, has submitted and supported the judgments and has tried to emphasize that the approach by the Courts below is perfectly legal and that this Court should observe the caution of sparingly invoking the revisional jurisdiction and in that light the revision deserves to be dismissed. 3. In order to appreciate these rival arguments, it is imperative to traverse through broadly the facts canvassed on behalf of the prosecution. The present petitioner has been working as a Chairman of Narva Vividh Karyakari Sahkari Seva Society Limited; whereas other accused Suryakant Bhaskar Falari was a Secretary between the period 1.7.1977 and 14.2.1978. 3. In order to appreciate these rival arguments, it is imperative to traverse through broadly the facts canvassed on behalf of the prosecution. The present petitioner has been working as a Chairman of Narva Vividh Karyakari Sahkari Seva Society Limited; whereas other accused Suryakant Bhaskar Falari was a Secretary between the period 1.7.1977 and 14.2.1978. This is a relevant period for the prosecution because it is alleged that when the auditor carried out the audit of the Society he found that amount of Rs. 6235.81 ps. was in the custody of the Secretary and Rs. 88.50 ps. in the custody of present petitioner, who was the Chairman and that this amount although shown in the cash at balance was not forthcoming when the petitioner and the Secretary were called upon to produce the same. This was, therefore, clearly a case of criminal breach of trust by the petitioner as well as the Secretary on the basis of this audit report, police case was filed and the petitioner and. the Secretary were prosecuted for offence under section 408 r/w section 34, I.P.C. 4. The learned Trial Judge, on the appreciation of the evidence led on behalf of the prosecution was pleased to uphold the allegation of misappropriation and was pleased to convict the present Petitioner along with the Secretary for offence under section 408 r/w section 34, I.P.C. and impose the sentence of R.I. for 15 days and fine of Rs. 5,000/- in default further R.I, for two months. The learned Appellate Judge also on the extensive consideration of the evidence was pleased to uphold the findings recorded by the Trial Judge. He concurred also on the point of sentence and accordingly the appeals of the appellants were dismissed. 5. Being aggrieved by this conviction and sentence, the present petitioner has preferred this revision. It may be stated that Secretary Suryakant Bhaskar Falari has chosen to suffer the conviction and accordingly did not file any revision before this Court. This has to be highlighted in view of the fact that there is a clear letter by him that he had misappropriated the amount and possibly finding that he had no way out, he has not preferred revision and seems to have undergone the sentence. 6. This has to be highlighted in view of the fact that there is a clear letter by him that he had misappropriated the amount and possibly finding that he had no way out, he has not preferred revision and seems to have undergone the sentence. 6. The learned advocate for the petitioner has contended that in the first instance the petitioner was the Chairman and although it may be that he may be in general charge of the accounts and the cash but so far as these amounts were concerned he was not involved in the matter. Now, in this regard the prosecution has examined the auditor - Chandrakant Gaude, who has stated that during the course of audit in the above period, he found that the above amounts were not coming forth in the items of cash balance, the cash balance should have been in the custody of the society and should have been readily available £or verification. According to him, original accused No.1 was the Secretary and he was exclusively responsible for maintaining the accounts and likewise the cash book. He has deposed that accused No.2 was generally responsible for the cash. But it is further stated by him that the closing balance was Rs. 4655.81 supposed to be in the custody of the Secretary and Rs. 88.50 ps. with the present petitioner, who was the original accused No.2. There is also reference to another entry dt. 10.9.1977, wherein amount of Rs.1580/- was utilized for purchase of fertilizers but the fertilizers were not purchased and even that balance was missing. In this regard, it is not in dispute that even this amount has been counted for by the Secretary and the question of the involvement of the present petitioner really does not arise. In the cross-examination, he has categorically admitted that the Secretary had given in writing on 14.2.1978 that it was he who had used the misappropriated amount for his personal requirements. In this regard, the defence of the Secretary is very relevant inasmuch as according to him he was suffering from some mental disease on account of the fits. He could not recollect what was happening, but all the same with the passage of time he clearly admitted that he was responsible for the misappropriation of the amount alleged to have been misappropriated. 7. He could not recollect what was happening, but all the same with the passage of time he clearly admitted that he was responsible for the misappropriation of the amount alleged to have been misappropriated. 7. It also cannot be lost sight of that the auditor has admitted that there might be resolution of the society which rather authorised the Chairman to retain the balance of Rs. 100/-, but it is further admitted by him that the Secretary was having domain over the property of the Society. All that was qualified is this was subject to the supervision of the Chairman i.e. the present petitioner. With this clear admission, it is difficult to spell out that the present petitioner was responsible for the misappropriation of the amount. 8. (P.W.3) Narayan Parab has corroborated the claim of the prosecution that at the relevant time original accused No. 1 was functioning as a Secretary while accused No. 2 present petitioner as Chairman. It seems that he did not subscribe to the prosecution story and was declared hostile to the prosecution. 9. The other witness (P.W. 5) Vasant Bhato has also confirmed the manner in which the affairs of the Society were handled respectively by Secretary and Chairman. But he has not been able to clarify as to who had made the relevant entries. According to him, both the accused were handling transactions including the cash. But he has not been able to clearly show that the cash balance was in the joint custody of the Secretary and the Chairman: He has not been able to affirm positively that the present petitioner was handling the cash in an active association with the Secretary. Now, in view of this evidence, the approach of the Courts that the present Chairman was equally responsible for the cash balance appears to be not tenable. 10. (P.W. 6) Vishnu Bhate has also stood the line of the other witnesses, but in his zeal to do so, he has not been able to fill in the lacuna left by the other witnesses. He has been abscessed with the plea that the Chairman was responsible for the cash. 11. In view of the stand taken by the Secretary that he has been responsible for the misappropriated amount, it is difficult to read as to how logic could be that the Chairman is also responsible for the misappropriation. He has been abscessed with the plea that the Chairman was responsible for the cash. 11. In view of the stand taken by the Secretary that he has been responsible for the misappropriated amount, it is difficult to read as to how logic could be that the Chairman is also responsible for the misappropriation. On the other hand, what is seen from the evidence of these witnesses is that as per the bye-laws of the Society the Chairman might have a power of superintendence over the affairs of the Society, but that by itself cannot foist the liability, on the Chairman the present petitioner. 12. Both the Courts below have been rather impressed by the bye - laws and the evidence that the Chairman and Secretary were responsible for the cash balance. In face of the fact that the Secretary admitted to have misappropriated the amount the lapse on the part of the Chairman, at best can be said to be lapse in the matter of superintendence of the accounts but by no stretch of imagination, it can be said that he was criminally responsible for the misappropriated amount. There is, therefore, a basic error in the approach of both the Courts below. 13. The learned advocate for the petitioner has also drawn my attention to the observation of the Supreme Court reported in Chhutanni v. State of Uttar Pradesh1 that the provisions of Section 408 cannot be invoked against the servant or the clerk. According to her, at best the petitioner can be said to be agent and his actions, therefore, would not be covered under section 408, I.P.C. I feel that/there is force in this argument, but without dilating anymore on that aspect, it will have to be held that the clinching admission on the part of the Secretary should have persuaded the Courts below not to find the petitioner guilty. Since this goes to the root of the approach, the revision shall have to be allowed, and accordingly the following order. 14. Criminal Revision Application is allowed. The judgment of conviction and sentence recorded by the Courts below be set aside. The petitioner is acquired of the charge under section 408, I.P.C. Revision allowed. 1. A.I.R. 1956 S.C. 407.