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2000 DIGILAW 1269 (PAT)

Jagat Lal Gupta v. State Of Bihar

2000-11-28

P.K.SINHA

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Judgment P.K.Sinha, J. 1. This revision application is directed against the judgment recorded by 1st Additional Sessions Judge, Katihar in Cr. Appeal No. 60 of 1985 under which the learned appellate Court had upheld the conviction of the petitioner, a Clerk in the Postal Department, under Sec. 409 of the Indian Penal Code and sentenced him to undergo three years of rigorous imprisonment and a fine of Rs. 5,000.00 (five thousand) or to undergo rigorous imprisonment for one year in default to pay the fine. It may be mentioned that the learned lower Court had also convicted the petitioner under Secs. 468 and 420 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for one year on each count also ordering that all the sentence would run concurrently. Learned appellate Court set aside the conviction and sentences under Secs. 420 and 468 of the Indian Penal Code but, as already stated, upheld the conviction and sentence under Sec. 409 of the Indian Penal Code. 2. Earned Counsel for the petitioner also submitted that for similar nature of offence the petitioner in other case was acquitted. However, acquittal in a case of similar nature will not affect the merit of the prosecution case in other case. 3. From perusal of the judgments of the learned lower Courts, viz. of the Court or learned Sub-Divisional Judicial Magistrate, Katihar who had held the trial and oil the appellate Court, find that those judgments have discussed the details including the rules concerned and the impact of the evidence, oral and documentary. On careful consideration of the case, I find that there is no scope for interference in that. 4. The petitioner was charged under Sec. 409 of the Indian Penal Code for committing criminal breach of trust for a sum of Rs. 7,830.00 during given period. 5. On careful consideration of the case, I find that there is no scope for interference in that. 4. The petitioner was charged under Sec. 409 of the Indian Penal Code for committing criminal breach of trust for a sum of Rs. 7,830.00 during given period. 5. Earned Counsel for the petitioner has placed two points before me which are (i) though the petitioner was a Government servant and the offence was alleged to have been committed by him in course of performing his official duty, cognizance of offence which was taken, on which trial was held and the accused was convicted, could not have been taken without sanction of the Central Government as provided under Sec. 197 of the Code of Criminal Procedure ("the Code" in short) and (ii) that in this case F.I.R. was lodged on 28.7.1973 and the trial Court handed down the judgment on 17.6.1995 whereas the appellate Courts judgment is dated 5.2.1997 and now the matter is pending in this Court. It is submitted that for 27 long years this petitioner has faced this case and therefore, had undergone traumatic experience who now has reached at the age of 65 years and having already dismissed from service after this conviction and having deposited the amount of fine, he deserves a lenient consideration in the matter of sentence. 6. In-so-far as the first point is concerned, the sanction of the appropriate Government is essential if such public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. Here the allegation was that on receipt of money from depositor those were not immediately entered into any relevant documents and, therefore, temporary criminal breach of trust was committed. In such a case, when just after the deposit of amount by depositor, the amount has been withheld by the accused, even temporarily, and put to his own use, it cannot be said that the accused was acting or was purporting to act in discharge of his official duty. It is not a case in which while acting in discharge of his official duties the accused had simply exceeded his brief and thereby had committed the offence. In view of the aforesaid, I do not think that the judgment of the lower Court is vitiated for want of sanction under Sec. 197 of the Code. 7. It is not a case in which while acting in discharge of his official duties the accused had simply exceeded his brief and thereby had committed the offence. In view of the aforesaid, I do not think that the judgment of the lower Court is vitiated for want of sanction under Sec. 197 of the Code. 7. In-so-far as second argument of the learned Counsel is concerned, the petitioner has already deposited the fine to which he was sentenced. This case was initiated in the year 1973 and to reach this stage, it has taken 27 long years during which period the accused had been facing the proceedings. In the judgment of the learned lower Court and in examination of the petitioner under Sec. 313 of the Code, his age was noted to be 50 years in the estimation of the Court, which was in the year 1985. Therefore, this petitioner by now has reached the age of 65 years. Earned Counsel also submits that the petitioner already stands dismissed from service. 8. In view of the aforesaid, while maintaining the sentence of fine, I feel that a lenient view should be taken in the matter of substantive sentence. 9. In view of all the facts taken together as discussed above, in my opinion, the ends of justice would be served if the sentence of the petitioner is reduced to six months of rigorous imprisonment. 10. In view of the aforesaid, the sentence of the petitioner under Sec. 409 of the Indian Penal Code is reduced to six months of rigorous imprisonment while maintaining the sentence of fine and conviction. 11. With aforesaid modification in sentence, this application is dismissed.