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2003 DIGILAW 1083 (BOM)

Keshav Mahadeo Ingole v. State of Maharashtra

2003-10-07

D.D.SINHA

body2003
JUDGMENT - SINHA D.D., J.:---Heard Mr. Bangde, learned Advocate holding for Mr. Chaudhary, Counsel for the applicant and Mr. Mirza learned Additional Public Prosecutor for the respondent. 2. Criminal Revision is directed against the judgment and order of conviction dated 30-8-1996, passed by the Judicial Magistrate, First Class, Wani in Regular Criminal Case No. 83 of 1988, whereby the applicant is convicted for the offence punishable under section 409, Indian Penal Code, and sentenced to suffer rigorous imprisonment for one year as well as the judgment and order, dated 6th March, 2000, passed by Third Additional Sessions Judge, Yavatmal, in Criminal Appeal No. 34 of 1996, whereby the said appeal preferred by the applicant came to be dismissed. 3. Counsel for the applicant contended that in the instant case the courts below ignored the provisions of section 219 of Criminal Procedure Code, 1973 and framed charges against the applicant accused clubbing more than three offences together alleged to have been committed by the applicant accused within a span of twelve months. It is contended that as per provisions of sub-section (1) of section 219, Criminal Procedure Code, it is permissible to club only three offences committed by the accused of the same kind within a span of twelve months only. However, in the instant case, more than three offences alleged to have been committed by the accused within a span of twelve months have been clubbed, which is impermissible under the provisions of section 219(1), Criminal Procedure Code, thereby caused grave prejudice to the accused and, therefore, the procedure adopted is unsustainable in law. It is contended that the finding of the lower courts is invalid in law. 4. It is further contended that the prosecution failed to prove entrustment of the property with the accused since there is no evidence adduced by the prosecution in order to show that on which date the applicant-accused was entrusted with the property and in absence thereof, the prosecution undoubtedly, failed to satisfy the ingredients of section 409, Indian Penal Code. Consequently, the finding of conviction recorded by the courts below is bad in law. 5. The learned Counsel for the applicant further contended that the evidence adduced by the prosecution in the present case does not fulfil the requirements of section 409 Indian Penal Code and, therefore, the impugned judgments and order are unsustainable in law. 6. Mr. Consequently, the finding of conviction recorded by the courts below is bad in law. 5. The learned Counsel for the applicant further contended that the evidence adduced by the prosecution in the present case does not fulfil the requirements of section 409 Indian Penal Code and, therefore, the impugned judgments and order are unsustainable in law. 6. Mr. Mirza, learned Additional Public Prosecutor, on the other hand, contended that in view of the provisions of section 212, Criminal Procedure Code, there is no inconsistency so far as the clubbing of offences, as alleged by the learned Counsel for the applicant, is concerned. It is contended that both the Courts below took into consideration the pros and cons of the matter by keeping in view the provisions of sub-section (2) of section 212, Criminal Procedure Code and were justified in treating one offence within the meaning of section 219, Criminal Procedure Code. It is contended that in the instant case the offences of criminal breach of trust are committed by the applicant within a span of twelve months and, therefore, there is no illegality committed by the courts below in clubbing the offences of criminal breach of trust committed by the applicant within a span of twelve months and trying them as one offence as per the provisions of section 212. The learned Additional Public Prosecutor, therefore, contended that the findings recorded by the courts below are just and proper. It is further submitted that in the instant case the prosecution has examined as many as five prosecution witnesses in order to prove the charge under section 409, Indian Penal Code, against the applicant and the evidence adduced by these witnesses proves the prosecution case beyond all reasonable doubt for the offences charged. 7. The Additional Public Prosecutor states that both the courts below recorded a concurrent finding of fact against the applicant and held him guilty for the offence punishable under section 409, Indian Penal Code. It is submitted that the revisional powers of this Court are limited and while exercising such powers this Court is not expected to re-appreciate the evidence adduced by the prosecution in detail. It is submitted that the courts below were justified in holding that the prosecution succeeded in proving the case beyond all reasonable doubt against the applicant for the offence under section 409, Indian Penal Code and in convicting the applicant. 8. It is submitted that the courts below were justified in holding that the prosecution succeeded in proving the case beyond all reasonable doubt against the applicant for the offence under section 409, Indian Penal Code and in convicting the applicant. 8. I have considered various contentions canvassed by the respective Counsel and perused the impugned orders. 9. In the instant case, the prosecution has examined as many as five witnesses in order to prove its case against the applicant for the offence punishable under section 407, Indian Penal Code. It is pertinent to note that Mahadeo Ramchandra (P.W. 1) has stated in his testimony that the accused was entrusted with the duty of producing the properties in connection with the cases from Police Station Wani. This witness, at the relevant time was working as Assistant Nazar in the concerned Court and the concerned Police Station used to entrust properties to the applicant-accused for producing the same in the Court. The evidence of this witness regarding the role played by the applicant-accused is not challenged by the defence. Similarly, Police Constable Bansi (P.W. 2) in his testimony has described the procedure which was adopted by the concerned Police Station for production of properties. So far as the evidence of Police Head Constable Manohar Jain is concerned the prosecution has examined this witness in order to prove entrustment of properties to the applicant as well as the procedure provided in this regard. The totality of the evidence of all the prosecution witnesses would show that the applicant during the relevant time and period was working as a Court Duty Constable and in that capacity he was required to produce the properties which were handed over to him for such production before the courts. It is pertinent to note that the applicant accused even in his statement under section 313 Criminal Procedure Code has not disputed that Mahadeo (P.W. 1) during the period from 16-2-1976 to 20-2-1976 was working as Assistant Superintendent of Court and the applicant was producing properties obtained from the Police Station before the Court. The totality of the evidence adduced by the prosecution establishes that the applicant was a Court Duty Constable during the relevant period and was entrusted with various properties to be produced before the Court in connection with relevant criminal cases. The totality of the evidence adduced by the prosecution establishes that the applicant was a Court Duty Constable during the relevant period and was entrusted with various properties to be produced before the Court in connection with relevant criminal cases. Police Head Constable Manohar Jain (P.W. 4) has categorically pointed out the cases and the properties entrusted to the applicant during the relevant period. The evidence of Assistant Superintendent of Court supported the prosecution case on the count that the accused was the Court Duty Constable during the relevant period. The entire evidence, therefore in my considered view has rightly been appreciated by the courts below and the courts below are justified in holding that the prosecution proved the case against the applicant under section 409, Indian Penal Code. 10. So far as the contention canvassed by learned Counsel for the applicant in respect of the provisions of section 219, Criminal Procedure Code is concerned, it is no doubt true that the said section contemplates that when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, such person can be charged with and tried at one trial for offences not exceeding three during such period. However so far as criminal breach of trust is concerned, the relevant provision in this regard would be sub-section (2) of section 212, Criminal Procedure Code, which contemplates that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 212. It is therefore, evident that so far as the charge of criminal breach of trust is concerned, it is sufficient to specify the gross sum which is misappropriated and the dates between which such misappropriation is committed and it is not necessary to specify a particular item or the exact date on which such misappropriation has taken place. 11. It is therefore, evident that so far as the charge of criminal breach of trust is concerned, it is sufficient to specify the gross sum which is misappropriated and the dates between which such misappropriation is committed and it is not necessary to specify a particular item or the exact date on which such misappropriation has taken place. 11. In view of this specific provision the prosecution is expected to specify the gross sum misappropriated by the accused and the period during which such misappropriation has taken place even if the accused has misappropriated money or movable properties during such period may be on different dates and such misappropriation might have taken place more than three times during such period. However, misappropriation committed on all different dates within a specified period shall be deemed to be one offence within the meaning of section 219, Criminal Procedure Code and, therefore, by necessary implication, in the instant case, within a period of twelve months though misappropriation committed by the applicant may be more than three times but within the period of twelve months will have to be construed as one offence for the purpose of counting the number of offences contemplated in section 212, Criminal Procedure Code, which is obviously less than the permitted number of three offences and therefore the contention canvassed by the learned Counsel for the applicant in this regard is misconceived and devoid of substance and the courts below were justified in rejecting the same. 12. It is well settled that while exercising revisional powers by this Court, it is not possible to re-appreciate the prosecution evidence in detail, particularly when there is a concurrent finding of fact by competent criminal courts. Similarly if the view taken by the courts below is possible view, merely because another view is possible this Court should not interfere with the finding recorded by the courts below. On the backdrop of this well settled proposition the view taken by the courts below appears to be a plausible view and not perverse and, therefore, no case is made out for interference. 13. It is alternatively contended by learned Counsel for the applicant that if this Court is not inclined to show indulgence, in that event the applicant be given a benefit of section 4 of the Probation of Offenders Act and he be released on furnishing a bond of good behaviour. 13. It is alternatively contended by learned Counsel for the applicant that if this Court is not inclined to show indulgence, in that event the applicant be given a benefit of section 4 of the Probation of Offenders Act and he be released on furnishing a bond of good behaviour. It is contended that this is the first offence committed by the applicant which is not punishable either with death or imprisonment for life and, therefore, benefit under section 4 of the Probation of Offenders Act be extended to the applicant and he be released on furnishing a bond of good behaviour. 14. So far as the contention canvassed by the learned Counsel for the applicant regarding grant of benefit provided under section 4 of the Probation of Offenders Act is concerned, it is evident from plain reading of section 4 of the said Act that grant of such benefit would depend upon the opinion of the Court as regards the circumstances of the case including the nature of offence and the character of the offender. In the instant case, the applicant is a responsible Police Officer and custodian of law. His character has to be above board and unblemish. The offence which is committed by the applicant is of criminal breach of trust, that too in respect of the properties involved in the crimes which is not only serious in nature, but has a far reaching adverse consequences on the society at large and, therefore, in my considered view the applicant is not entitled to get the benefit of section 4 of the Probation of Offenders Act. For the reasons stated hereinabove, revision is dismissed. Revision dismissed. -----