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2004 DIGILAW 244 (PNJ)

Hira Lal v. State of Haryana

2004-02-28

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Hira Lal, the petitioner herein, was convicted by learned Sub Divisional Judicial Magistrate, Rewari vide judgment dated 18.4.1987 under Section 409 Indian Penal Code for committing an offence of criminal breach of trust in respect of an amount of Rs. 3200/- by misappropriating the same in his capacity as a public servant. He was sentenced to undergo RI for one year and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for one month. An appeal was preferred by the petitioner and the same also stands dismissed vide impugned judgment dated 7.3.1989 of learned Additional Sessions Judge, Narnaul. Hence this revision. 2. The present revision was filed by one Mr. Raj Kamal Swan, Advocate in 1989. When it was taken up for its final disposal on 23.10.2002 none had appeared for the petitioner. It was adjourned to 27.11.2002. On that date also no one had appeared for the petitioner and notice was given to the counsel for the petitioner for 8.1.2003. So was the position on the said date and a fresh notice was sent for 5.3.2003. Since the service was not effected another notice was sent for 2.7.2003. As per the office report, the notice sent to the counsel was received back unserved with the report that the counsel for the petitioner was not found present in the Bar room. Actual date notice was then issued to the petitioner to either appear personally or engage some counsel for 13.8.2003. Since the notice was not received back served or otherwise a fresh notice was once again sent to the petitioner on the address given in the opening sheet for today. Office report now submitted is that the notice issued to the petitioner for today i.e. 28.1.2004 has been received back unserved with the report that the petitioner has refused to receive the copy of the summons without the copy of the case. The report further indicates that the copy of the case was not sent with the notice as Hira Lal is the petitioner himself. I take it as a proper service upon the petitioner. As the present petition relates to the year 1989 being a very old one and cannot be adjourned time and again, I am disposing it of on merits without any assistance being rendered from the side of the petitioner. 3. I take it as a proper service upon the petitioner. As the present petition relates to the year 1989 being a very old one and cannot be adjourned time and again, I am disposing it of on merits without any assistance being rendered from the side of the petitioner. 3. I now advert to the facts of the case. 4. The petitioner was working as M.O. Paid Clerk in Post Office at Rewari. Some complaints were received that certain payees of money orders had not received money of their money orders. After receiving the complaint, Inspector of Post Offices Chander Bhan Garg held an enquiry and it was found that money orders detailed below were not paid :- Sr. No. M.O. No. Date of issue Office of issue Amount Rs. Name & Address of payee Date on which shown paid 1. 195 4.4.79 TPO-S501 1000/- Sh. Prabhu Dayal Yadav, Kutubpur, Rewari. 16.4.79 2. 4128 9.4.79 Anuppalayam 700/- Smt. Sarti Devi w/o Chhau Ram, Shukerpura, Rewari. 29.4.79 3. 4269 7.5.79 Agartala 750/- Sh. Parbhati Lal Mistri, Rampura, Rewari. 12.5.79 4. 5075 7.5.79 Ex.POMH 67 500/- Sh. Bihari Lal, Vill. Deodhai, P.S. Rewari. 14.5.79 Note : Duplicate money order No. 5075 had been paid to the real payee on 31.7.1979 and the real payee admitted only said payment dated 31.7.79 and denied the payment dated 14.5.79. 5. 2830 14.5.79 Suratgarh 500/- Sh. Tularam Topchiwara, Rewari. 15.5.79 6. 2767 14.5.79 FPO 1668 400/- Smt. Ramdevi Vill. Chhuriawas, PS Rewari. 17.5.79 7. 9329 15.5.79 Nagpur 800/- Sh. Mangtu Ram, V. Chhuriawas, PO Rewari. 29.5.79 5. The allegation further against the present petitioner was that he had allegedly made payments or these money orders at window of the post office and on inquiry, it was found that money in respect of the money orders detailed above had not been paid by the petitioner but only in papers it was shown to have been paid to different persons. After inquiry, the department lodged a written report with the police on which a case was registered against the petitioner under Section 409 Indian Penal Code. The petitioner was charged under section 409 Indian Penal Code by the Court. 6. In support of its case, the prosecution has examined 18 witnesses. Certain documents have also been tendered into evidence. 7. The stand taken by the petitioner was of false implication in this case. The petitioner was charged under section 409 Indian Penal Code by the Court. 6. In support of its case, the prosecution has examined 18 witnesses. Certain documents have also been tendered into evidence. 7. The stand taken by the petitioner was of false implication in this case. He has also produced one witness in his defence. 8. From the evidence, the admitted position which emerges is that the petitioner was employed as M.O. Paid Clerk in the Postal Department on the date when the amount was misappropriated. For the purpose of misappropriation by the petitioner the main witnesses examined by the prosecution are Bhoja Ram PW7, Hari Kishan Sharma PW8 and Lo Ram PW18. Bhoja Ram PW7 and Lo Ram PW18 were posted as treasurers in post office Rewari whereas Hari Kishan Sharma PW8 was posted as Postal Assistant. From the evidence of Bhoja Ram it is clear that the present petitioner had received an amount of Rs. 2127.95 paise, Rs. 200/-, Rs. 150/- on 16.4.1979 and his signatures are also in the cash book in token of receipt of said amount. He has further stated that on 29.5.1979 the petitioner has also received Rs. 2580/- for payment of money orders at the window. Certain extracts from Ex. PW7/A and PW8/1 and PW8/7 which have been tendered in evidence also speak volumes of all the entries made in this respect. In the cash book there are signatures of the present petitioner against all the entries. All these entries go to show that the petitioner was entrusted with the amount and he ultimately misappropriated the same. I have gone through the impugned judgment of the trial court in which after entering into detailed discussion it has been observed that out of total amount of Rs. 4650/- alleged to have been misappropriated by the petitioner, at least with regard to amount of Rs. 3200/-, there is no doubt regarding entrustment and this amount was to be given to the different persons. 9. It is worth mentioning here that Prabhu Dayal PW1, Tula Ram PW2, Rama Devi PW3, Mangtu PW5 and Bihari Lal PW10 when stepped into witness box have categorically stated that they had not received the amount. 10. 3200/-, there is no doubt regarding entrustment and this amount was to be given to the different persons. 9. It is worth mentioning here that Prabhu Dayal PW1, Tula Ram PW2, Rama Devi PW3, Mangtu PW5 and Bihari Lal PW10 when stepped into witness box have categorically stated that they had not received the amount. 10. After scanning the entire evidence, I am of the considered view that the prosecution has been able to prove its case beyond any shadow of doubt against the present petitioner and he has misappropriated Rs. 3200/- in his capacity as a public servant. His conviction as recorded by the learned trial court under section 409 Indian Penal Code is, thus, well merited. I also do not find any infirmity in the impugned judgment of learned Additional Sessions Judge as well. There is no manifest illegality or gross irregularity in the instant case which can be the scope of interference while exercising the revisional jurisdiction by this Court. 11. So far as quantum of sentence is concerned, I am of the view that the present petitioner deserves some concession. He stands sentenced for one year by the learned trial Court and thereafter confirmed by the appellate court, considering that the sentence is not in any way excessive. The incident relates to year 1979. No doubt the misappropriation of the public money by a government servant has to be taken very seriously but keeping in view the facts and circumstances of the present case and the fact that the petitioner has already faced the rigour of protracted trial of long 24 years, the ends of justice would be adequately met if the sentence of one year is reduced to six months. Ordered accordingly. However, the sentence of fine shall remain as it is. 12. With the modification in the quantum of sentence as indicated above, the present revision petition is dismissed. 13. Let intimation of this judgment be sent to the learned trial court and the appellate court so that necessary steps can be taken with regard to the sentence part as the petitioner is on bail. Petition dismissed.