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Madhya Pradesh High Court · body

1994 DIGILAW 775 (MP)

RAMCHANDRA v. STATE OF MADHYA PRADESH

1994-10-20

R.D.SHUKLA

body1994
R. D. SHUKLA, J. ( 1 ) THIS order shall dispose of Criminal Revision No. 145/89 (Ramchandra v. State of M. P.) and Criminal Revision No. 149/88 (Bapusingh v. State of M P. ). Both these revisions are directed against the Judgment and order dated 5. 8. 1988 of lind Addi. Sessions Judge, Shajapur, passed in Criminal Appeal Nos. 67/85 and 70/85, whereby while dismissing the appeal of accuse-applicants, filed against the judgment and order dated 29. 4. 1985, passed by J. M. F. C. , Shajapur, in Criminal Case No. 64/80, their conviction under Section 409 and 468, I. P. C. and sentence of 3 Yrs. each with ine of Rs. 3,000/- each; in default of payment of fine RI. for six months under Section 489, I. P. C. and sentence of one year RI. each with fine of Rs. 1,000/-; in default of payment of fine imprisonment for six months each under Section 468, I. P. C. has been affirmed. ( 2 ) THE brief history of the case is that the accused-applicants were Secretary and President of Credit Cooperative Society. They received Rs. 9,125/- in that capacity and committed breach of trust by misappropriating it. They also fabricated documents for misappropriating the money. It is alleged that Gangararn deposited Rs. 2025/- in the Society. A receipt in proof of the same was passed over and given to Gangaram. Similarly, Ratan Singh deposited Rs. 700/- on 9. 2. 1972 they falsely exhibited purchase of manner worth Rs. 4400/ -. during such work they received further payment from other members. In the audit report of 71-72 and 72-73 this misappropriation and forgery for the same was detected and the matter was reported to the police. After investigation Police filed the challan. ( 3 ) ON charges being framed and explained accused persons abjured the guilt and pleaded false implication. Accused/applicant Ramchandra appeared as defence witness in support of his contention. After trial the learned trial Judge convicted and sentence them as above. ( 4 ) ACCUSED-APPLICANT Ramchandra filed appeal No. 67/85 while accused-applicant Bapusingh filed appeal No. 70/85. Both the appeals were dismissed by a common order; Hence, these two revisions i. e. , Cri. Revision Nos. 145/88 and 149/88 by Ramchandra and Bapusingh respectively. ( 5 ) THE contention of the learned counsel for the Accused-applicant Ramchandra is that on 28. 6. 1972 Rs. Both the appeals were dismissed by a common order; Hence, these two revisions i. e. , Cri. Revision Nos. 145/88 and 149/88 by Ramchandra and Bapusingh respectively. ( 5 ) THE contention of the learned counsel for the Accused-applicant Ramchandra is that on 28. 6. 1972 Rs. 2,000/- was paid to President Bapusingh, though the receipt Ex. P/9 was passed by Ramchandra. It has been contended on behalf of the accused-applicant Bapusingh that as he was President of the Society the actual transaction of money was done by accused-applicant Ramchandra, who was secretary. It has been contended by both the applicants that sanction under Section 197, Cr. P. C. was not taken and, therefore, the prosecution is bad. ( 6 ) AS against it learned counsel for the N. A. State has submitted that since the accused persons committed Criminal offence of misappropriation and forgery no sanction under Section 197, Cr. P. C. was required. The second contention of the learned counsel for the State is that both the accused persons have signed the documents including receipt and cash book and, therefore, both are responsible or defalcation. ( 7 ) I would like to deal with the first objection as to whether any sanction under Section 197, Cr. P. C. was required in the case? The allegations against the accused persons are that they committed breach of trust and committed forgery in order to misappropriate the public money. The applicants were secretary and the President of the Society and as such were public servants. The Sanction under Section 197, Cr. P. C. for prosecution is required where the offence alleged has been committed while acting or purporting to act in discharge of his official duty. Misappropriation of public money and forgery of documents for that purpose is in no way official duty and as such, in the opinion of this Court, no sanction under Section 197, Cr. P. C. was required in the case. This can also be mentioned here that this objection has probably been taken for the first time, in the Revisional Court and this point was probably not raised during trial and, as such, that contention of the learned counsel for the applicant fails. ( 8 ) THE Court was taken to the evidence. The case started with the written report filed by Mandansingh on 14. 7. 1975 in police station Moman Baridia. ( 8 ) THE Court was taken to the evidence. The case started with the written report filed by Mandansingh on 14. 7. 1975 in police station Moman Baridia. The report was singed by R. P. Vijayvargiya, Manager Central Co-operative Bank Ltd. , Shujalpur. That report including signature of R. P. Vijayvargiya has been proved by P. W. 4 R. P. Vijayvargiya himself. He has stated that the accounts of Co-operative Credit Society, for the years 197 1-72 and 1972-73 were audited and reports Ex. P/24 and P/25 were prepared. He prepared report Ex. P/26 on that basis. In all the accused persons had misappropriated Rs. 28,506/ -. There was over-writing in the cash book. The original receipt for Rs. 2025/- was passed, but, in the cash book it was shown to be 1025/. The carbon copy Ex. P19 bears signatures of both the accused persons. Carbon copy showing deposit of Rs. 1025/- by correcting the figure from 2025/- has been signed by both the accused i. e. , Ramchandra Bapusingh. Similarly, in the original receipt Ex. P110, Rs. 600/- was deposited, but the same was changed to Rs. 100/- vide Ex. P/li. This also bears signatures of both the accused persons. In the cash book only Rs. 100/- has been shown to have deposited. That also bears signatures of both the accused persons. ( 9 ) P. W. 2 Gangaram has stated. that he has deposited Rs. 2025/- in Credit Co-operative Society, Chema. He gave the money to Ramachandra. He has admitted that accused Bapusingh was not present at that time. ( 10 ) P. W. 3 Vijay Kumar has stated that during audit it was revealed that on 9. 2. 1972 one Ratansingh deposited Rs. 700/-, but the same was not credited in the cash book. Similarly, on 15. 6. 1972 Rs. 4400/- was shown as having been spent for purchase of manure. The Society had no powers to purchase chemical fertilizer in cash. The cash book was written by Ramchandra and has been signed by accused Bapusingh. He has, further, stated that no fertilizer was purchased and falsely the purchase was shown, which was written by Ramchandra. That also contains signature of Bapusingh. He has also stated about the forgery and over-writing regarding the deposit of money by Gangaram, which was corrected from 2025/- to 10251 -. This witness has also stated that between 1. 2. He has, further, stated that no fertilizer was purchased and falsely the purchase was shown, which was written by Ramchandra. That also contains signature of Bapusingh. He has also stated about the forgery and over-writing regarding the deposit of money by Gangaram, which was corrected from 2025/- to 10251 -. This witness has also stated that between 1. 2. 1972 to 19. 7. 1972 accused Ramchandra misappropriated Rs. 8,100/- ( 11 ) MAHENDRASINGH (P. W. 5) Handwriting expert has proved the signatures of both the accused persons in the receipts and cash book, as referred above. ( 12 ) P. W. 6 Shakurkhan turned hostile and has not supported the case of the prosecution. ( 13 ) P. W. 7 Bhagwat Prasad has stated that the documents Ex. P12 to P110, P113 to P117 and P120 bears signatures of Bapusingh. Similarly, he has identified Ex. P179 and P182 to be the signatures of Bapusingh. Accused Ramchandra has appeared in the witness box as D. W. 3. During cross-examination he has admitted signatures in documents Ex. P/i to P14, P110, P114 to P117, P119 and P120. He has tried to state that there was a resolution by the Board of Directors about the purchase of fertilizer, but he could not refute as to whether the Society has any power of purchasing fertilizer in cash instead of receiving it from the Marketing Society or other Central Co-operative Society, He has admitted in para 26 of his statement that Rs. 4400/- was given to the President that is Bapusingh for purchase of fertilizer, but he had produced no receipt for the same. He has also admitted that he never saw stock of fertilizer in the Society. In para-2 9 of his statement he has admitted that he received the money on the basis of Ex. P/i and further stated that the money vide Ex. P12, P13 and P14 was received by Bapusingh. Similarly, he had admitted the receipt of money vide Ex. P114. Thus, from the admission of Ramchandra also the documents including document Ex. P19 contains the signatures of Ram chandra. Gangaram has also stated about the money having been given to accused Ramchandra. ( 14 ) BAPUSINGH in his statement under Section 313 of the Cr. P. C. has tried to take a plea that he blindly signed the documents, receipts and cash books as requested by Ramchandra. P19 contains the signatures of Ram chandra. Gangaram has also stated about the money having been given to accused Ramchandra. ( 14 ) BAPUSINGH in his statement under Section 313 of the Cr. P. C. has tried to take a plea that he blindly signed the documents, receipts and cash books as requested by Ramchandra. Bapusingh is a literate person who was President of the Society, the forged documents contained his signatures. It is not his case that forgery was done afterwards by Ramchandra. He has signed the cash book which mentions the deposit of Rs. 1025/- in place of Rs. 2025/-, This goes to show that he was also a participates criminals in the act of misappropriation and forgery. The finding arrived at by the two Courts below, therefore, calls for no interference. ( 15 ) THE last contention of the learned counsel for the applicants is that the incident happens somewhere in 1972 and now nearly 21 years have elapsed and, therefore, a liberal attitude in punishment may be taken. ( 16 ) THE accused persons were the trustees of public money as President and Secretary of the Co-operative Society. They misappropriated the money meant for poor persons and, therefore, undue leniency in the matter of sentence will be. against the principle of natural justice. However, substantive sentence of imprisonment may be reduced by increasing the amount of fine. As such, while maintaining the conviction under Sections 409 and 469, I. P. C. , the revision is partly accepted regarding the punishment. The sentence imposed on both the accused-applicants u/s. 409, I. P. C. is reduced to imprisonment of one year and a fine of Rs. 6,000/- each; in default of payment of fine they shall suffer imprisonment for 20 months each. The sentence imposed on both the accused applicants u/s. 468, I. P. C. is also reduced to RI. for six months each with a fine of Rs. 1,000/-; in default of payment of fine they shall suffer imprisonment for 4 months each. The substantive sentence of imprisonment shall run concurrently. Revision ordered accordingly. .