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2005 DIGILAW 1275 (RAJ)

Purshottam v. State of Rajasthan

2005-04-29

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This revision petition is directed against the Judgment and order dated 20.01.2005 passed by the Sessions Judge, Pali (for short, "the Appellate Court" hereinafter) in Criminal Appeal No. 40/2004, by which the appellate Court partly allowed the appeal filed by the accused-petitioner and while maintaining the Judgment and order of conviction under Section 409, IPC, passed by the Chief Judicial Magistrate, Pali (for short, "the trial Court" hereinafter) in Criminal Case No. 73/1999, reduced the substantive sentence of imprisonment from three years rigorous imprisonment to six months simple imprisonment and also reduced the amount of fine from Rs. 10,000/-to Rs. 1000/-and in default of payment of fine further to undergo one months simple imprisonment. 2. The facts of the case, in a nut shell, are that Mr. C.M. Gehlot, Superintendent, Post Office, Pali lodged a written report with Police Station, Pali, inter alia, alleging therein that while working as Postman during the period from 22.05.1996 to 09.05.1997, petitioner was given various amounts of money-orders for disbursing the same to the recipients but the money was not paid to the recipients and by making forged signatures of the recipients, the petitioner submitted the vouchers before the Post Master and thereby he embezzled the amount of Rs. 5925/-. After investigation, the police filed challan against the petitioner for the offence punishable under Section 409, IPC. After appreciation of the evidence and hearing the arguments, the trial Court, vide impugned Judgment and order dated 21.07.2004, convicted and sentenced the petitioner, as stated above. Petitioner preferred an appeal before the appellate Court, which has been partly allowed by the appellate Court vide impugned Judgment and order dated 20.01.2005. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the Judgment s and orders passed by the Courts below as also the record of the case. 4. It has been contended by the learned Counsel for the petitioner that the prosecution could not establish that it was the petitioner who put forged signatures of recipients on the money-order vouchers. It has further been contended that some of recipients have been paid the money-order amount partly but not the exact amount of the money order, which is wholly unbelievable. It has further been contended that the prosecution could not prove any admission of guilt by the petitioner during departmental inquiry. It has further been contended that some of recipients have been paid the money-order amount partly but not the exact amount of the money order, which is wholly unbelievable. It has further been contended that the prosecution could not prove any admission of guilt by the petitioner during departmental inquiry. His further contention is that the alleged embezzled amount has already been deposited by the petitioner and he has been dismissed from service, therefore, the substantive sentence of imprisonment may be reduced to the period of imprisonment already undergone by the petitioner. In support of his contention, learned Counsel for the petitioner has placed reliance on Narendra Pratap Narain Singh & Anr. vs. State of U.P. , AIR 1991 SC 1394 ; and Rajendra Prasad vs. State of Rajasthan, 2004 (3) RCrD. 260 (Raj.). 5. On careful scrutiny, scanning and evaluation of the evidence on record. PW. 5 Smt. Sulochana has stated that her sisters husband had sent a money-order of Rs. 500/-from Pune but the amount was not received by her. When she went Pune for her treatment, her sisters husband told that he had sent Rs. 500/-to her by money-order and showed the receipt which was bearing signatures of some person whereas she puts her thumb impression. PW. 7 Bhura Ram was the Cashier in the Head Post Office, Pali, who has given details of the amounts of money-orders given to the petitioner for disbursement to the recipients. His further evidence is to the effect that those amounts of money orders were not received by the actual recipients. PW. 7 Mishri Lal Singhadia has stated that while working as the Assistant Superintendent, Post Office, Pali, he conducted the inquiry in the matter and recorded the statement of various persons. He also recorded the statement of the accused-petitioner and examined the documents. After inquiry, he came to the conclusion that the petitioner had embezzled in all a sum of Rs. 21,302/-. He submitted the inquiry report to the Superintendent of the Post Office, Pali. PW. 2 Paras Mal Bhati has stated that out of two money orders of Rs. 2,000/-each, instead of payment of Rs. 4,000/-, he was paid only Rs. 2,000/-by the petitioner. Some of the prosecution witnesses have stated that they did not receive the amount of money order at all. PW. 2 Paras Mal Bhati has stated that out of two money orders of Rs. 2,000/-each, instead of payment of Rs. 4,000/-, he was paid only Rs. 2,000/-by the petitioner. Some of the prosecution witnesses have stated that they did not receive the amount of money order at all. The learned trial Court, after appreciating the evidence on record, by the well-reasoned Judgment and order, convicted and sentenced the petitioner for the offence under Section 409, IPC. 6. The learned appellate Court, after re-appreciating the evidence on record, affirmed the conviction of the petitioner but reduced the substantive sentence of imprisonment from three years rigorous imprisonment to six months simple imprisonment. It is pertinent to mention here that before the appellate Court, learned Counsel appearing for the accused -appellant (petitioner herein) admitted that on account of mental agony and disturbance, the appellant committed the mistake and thereafter, deposited the embezzled amount of Rs. 13,003/-apart from confession his guilt during the departmental inquiry. Thus, even as per the aforesaid admission, the concurrent findings of facts arrived at by the Courts below regarding the guilt of the petitioner get support. In this view of the matter, the arguments advanced by the learned Counsel for the petitioner challenging the conviction of the petitioner under Section 409, IPC, are devoid of any merit and deserves to be rejected. 7. So far as the decisions in Narendra Pratap Narain Singhs case (Supra) and Rajendra Prasads case (Supra) relied upon by the learned Counsel for the petitioner are concerned, the facts of the instant case are totally different from the facts of those cases. In those cases, the embezzled amount had already been deposited prior to lodging of the FIR. Again, in Narendra Pratap Narain Singhs case (Supra), the High Court did not believe the prosecution case of forging the bills and receipts and using them as genuine by the accused therein. Again, in Rajendra Prasads case (Supra), this Court treated the case to be that of temporary detention of amount. However, in the instant case, the embezzled amount had been deposited by the petitioner much after lodging the FIR and initiation of departmental proceedings. Again, in Rajendra Prasads case (Supra), this Court treated the case to be that of temporary detention of amount. However, in the instant case, the embezzled amount had been deposited by the petitioner much after lodging the FIR and initiation of departmental proceedings. In the instant case, there is concurrent findings of facts regarding the guilt of the petitioner for the offence under Section 409, IPC, from the admission of petitioner himself during departmental inquiry and the admission made by his Counsel before the appellate Court regarding petitioners guilt. Hence, the decisions relied upon by the learned Counsel for the petitioner are not applicable to the facts of the instant case. 8. So far as contention regarding reduction of substantive sentence to the period of imprisonment already undergone by the petitioner is concerned, considering the facts that the petty amount of embezzlement has already been deposited by the petitioner, his services have been dismissed and he has already undergone the imprisonment for nearly 3 ½ months, in the interest of justice, I consider it just and proper to reduce the substantive sentence of imprisonment awarded by the appellate Court to the period of imprisonment already undergone by the petitioner; however, the sentence of fine awarded by the appellate Court is maintained. 9. Consequently, the revision petition is partly allowed. While maintaining the conviction of the petitioner under Section 409, IPC, the substantive sentence of imprisonment awarded by the appellate Court is reduced to the period of imprisonment already undergone by him; however, the sentence of fine awarded by the appellate Court is maintained but in default of payment of fine, he is further to undergo seven days imprisonment instead of one month. The application for suspension of sentence is disposed of .