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2005 DIGILAW 1587 (RAJ)

Madanlal v. State of Rajasthan

2005-05-27

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-These two revision petitions have been filed under Section 397 read with Section 401 of the CrPC against the common Judgment and order dated 011.1993 passed by learned Addl. Sessions Judge, Bayana in Criminal Appeal Nos. 18/87 - Madanlal vs. State and 19/87 - Harsahay & Ors. vs State, affirming the Judgment and order dated 10.03.1987 passed by the learned Chief Judicial Magistrate in Criminal Case No. 265/82 - State vs. Nagla Itamada Gram Seva Sahakari Samiti & Ors. against the accused persons Babulal, Rangi alias Gangasahay and Madanlal whereby each of them was convicted under Section 7/3, Essential Commodities Act, 1955 (hereinafter referred to as the Act of 1955) and sentenced to rigorous imprisonment for three years with a fine of Rs.5,000/-, in default thereof , each one of them to suffer further six months simple imprisonment. 2. The accused before the learned trial Court originally were five, viz., (1)Nagla Etamada Gram Seva Sahakari Samiti, Tehsil Vair (Bharatpur), (2) Harsahay, (3) Madanlal, (4) Babulal and (5) Rangi. Out of them, accused No.1 Nagla Etamada Gram Seva Sahakari Samiti was fined with the penalty of Rs.10,000/-while the other four accused were sentenced to imprisonment for a period of 3 years with fine of Rs.5,000/-each and in default of payment to suffer further six months simple imprisonment. Before the appellate Court below i.e. learned Addl. Sessions Judge, Bayana only four accused namely Harsahay, Babulal and Rangi alias Gangasahay preferred appeal, however, as the accused Harsahay expired during the pendency of his appeal, his appeal abated. Out of the accused persons, Madanlal has approached this Court by way of filing S.B. Criminal Revision Petition No.348/1993 while the other two accused Babulal and Rangi @ Gangasahay have preferred S.B. Criminal Revision Petition No. 343/1993. 3. As both the revisions arise out of the same common order and clubbed together, these are being disposed of by this single order. 4. 3. As both the revisions arise out of the same common order and clubbed together, these are being disposed of by this single order. 4. The facts, in brief , are that on 03.05.1982 the complainant Enforcement Inspector Ramjilal Sharma filed a complaint against Cooperative Society -Nagla Itamada Gram Seva Sahakari Samiti, Tehsil Vair, District Bharatpur and its members Madanlal, Harshay, Babulal and Rangi for the offence under Section 3/7 of the Act of 1955 inter-alia stating that the Samiti is running a fair price shop and has a licence under the Rajasthan Foodgrains and other Essential Articles (Regulation of Distribution) Order, 1976, and on receiving the complaints in respect of mal-distribution of sugar by the Samiti, he visited the shop of the Cooperative Society on 20th April, 1981, and 28th April, 1981 and thereafter the record pertaining to the receipt and distribution of sugar called for and inspected on 3rd June, 1981. On inspection of the record, it was found that instead of distributing 600 grams sugar per unit the Samiti had distributed only 450 grams sugar per unit while the entries in the Distribution Register were made showing distribution of sugar 600 grams per unit. It was also stated that on inspection of the record it was found that sugar pertaining to the quota of February and March, 1981, was received by them on 11th April, 1981 but was distributed on 17th April, 1981. Furthermore, it was stated that on recording the statements of the consumers it transpired that even though merely 450 grams of sugar per person had been distributed entries were made showing distribution of sugar at 600 grams per person. Further, it was stated that discrepancies in the record of the Samiti pertaining to the distribution of sugar in the month of October, 1980, November, 1980, December, 1980, January, 1981, February, 1981, and March 1981 were found by the Enforcement Inspector. Other discrepancies found by the Enforcement Inspector pertaining to the aforesaid were double and false entries etc. As such, on the basis of discrepancies found in the distribution of controlled sugar, the Enforcement Inspector filed complaint against the samiti and four others including the petitioners detailing various contraventions of the Rajasthan Foodgrains and other Essential Articles (Regulation of Distribution) Order, 1976. The Enforcement Inspector stated that an offence punishable under Section 3/7 of the Essential Commodities Act had been made out against the accused-petitioners. The Enforcement Inspector stated that an offence punishable under Section 3/7 of the Essential Commodities Act had been made out against the accused-petitioners. 5. The accused-petitioners denied the charges and claimed trial. Accused in their statements stated that the purported samiti was never in existence nor the accused-petitioners were either the President or the Manager, or Treasurer or its Secretary. It was also denied that any sugar was received by the accused persons or that any distribution thereof was made by them. Thus, the denial was made in toto. No other evidence in defence was led. .6. The learned trial court framed issue as to whether the Enforcement Officer made inspection on 20.04.1981, 28.04.1981 and 03.06.1981 and found that the sugar received for the months of February .& March 1981 for distribution was distributed after six days of its receipt and was shown as 600 grams per unit in the ration cards and the Distribution Register while distributing only 450 grams per unit and whether for the month of October, 1981 to March, 1980, the samiti had distributed 12 quintals 38 Kgs. 900 grams of sugar in excess of the sugar received and whether false entries were made without distributing sugar and 51 consumers were distributed sugar without ration cards and also as to whether the accused have violated the conditions of the order of 1976 and have committed punishable offence under Section 3/7 of the Act of 1955. 7. During trial, prosecution in support of its case examined five witnesses and got exhibited several documents in support of its case. After completion of trial, the learned trial court vide its order dated 10.3.1987 found the accused-petitioners guilty of offence under Section 3/7 of the Act of 1955 and sentenced them as stated above. 8. Aggrieved, the accused persons, filed a criminal appeal before the Court of Sessions which was later on transferred to the Court of Addl. Sessions Judge, Bayana and came to be decided vide Judgment and order dated 011.1993. 9. Dissatisfied, the present petitioners have approached this Court by filing the present two revision petitions. 10. In these matters, none appeared on behalf of the accused-petitioners. However, the Public Prosecutor present was heard and the material available on record was scrutinized. .11. The grounds on which the petitioners have filed the present petitions, as enumerated in the petitions, may be summarized thus:- 1. 10. In these matters, none appeared on behalf of the accused-petitioners. However, the Public Prosecutor present was heard and the material available on record was scrutinized. .11. The grounds on which the petitioners have filed the present petitions, as enumerated in the petitions, may be summarized thus:- 1. There was no legal probative value to warrant conviction of the accused-petitioners under Section 3/7 of the Act of 1955. 2. Under Section 10 of the Act of 1955 in the event of any offence by co-operative society falling under Section 3 and punishable under Section 7, only a person who at the time of contravention was in charge of and responsible to the society is liable to be prosecuted and punished and that neither there was any averment in the complaint nor in the evidence of prosecution that the accused-petitioners were incharge of the business and responsible for its business. 3. The prosecution subsequent to denial by the petitioners about having committed any offence has failed to lead any evidence to show that the accused-petitioners had the mensrea to complete the offence alleged. 4. The appellate court has failed to record reasons for not applying the provisions under Section 360 CrPC and overlooked the fact that the accused-petitioners had no criminal antecedents, and considering the age and the lapse of long period from the date of committing offence they should have been released under the Probation of offenders Act. 12. The learned Public Prosecutor appearing on behalf of State supported the impugned Judgment and orders passed by learned Courts below. 13. Having heard learned Public Prosecutor and gone through the record, it appears that the learned Courts below have concurrently came to the conclusion on the basis of evidence of PW. 1 Ramjilal Sharma that he visited the fair-price shop of the cooperative society on 20th & 28th April 1981 and also seized the record pertaining to the receipt and distribution of the sugar. 1 Ramjilal Sharma that he visited the fair-price shop of the cooperative society on 20th & 28th April 1981 and also seized the record pertaining to the receipt and distribution of the sugar. The record was inspected by him on 3rd June 1981 and on inspection it was found that sugar pertaining to the quota of March 1981 was received by the society on 11th April 1981 but same was distributed six days late on 17th of April 1981 and the society instead of distributing sugar 600 grams per unit had distributed only 450 grams sugar per unit while the entries in the distribution register were made showing distribution of sugar 600 grams per unit and thus the members of the society made embezzlement of sugar meant for distribution amongst the ration cardholders. It was also stated that register Exhibit P/2 showed incorrect distribution of sugar in the months of October, November & December 1980 and January, February and March 1981 and double and false entries were made without distributing sugar. 14. PW. 5 Devendra Pal Singh, who is the Audit Assistant of the Cooperative Department has stated that the society was allotted sugar quota for distributing the same amongst the cardholders as it was issued licence under the Rajasthan Foodgrains and Other Essential Articles (Regulation & Distribution) Order, 1976. He further stated that the order issued in this behalf is Exhibit P/13, several conditions of which have been violated. 15. The submissions made in the petition on behalf of the petitioners that they were not the members of the society and in fact no cooperative society was in existence, therefore, the prosecution was not able to prove its case and the accused-petitioners were entitled to acquittal, are not tenable in view of conditions of Exhibit P/13 - the order issued under the provisions of the Essential Commodities Act authorizing the society to make disbursement of sugar received by them. 16. PW. 5 Devendra Pal, who is a Govt. employee working in the cooperative department procured information of the audit of the society and that has been placed on record. No cross-examination has been addressed to the witness regarding the plea taken by them that they were not the members of the cooperative society and in fact no cooperative society ever existed and was authorized to distribute sugar amongst its cardholders. No cross-examination has been addressed to the witness regarding the plea taken by them that they were not the members of the cooperative society and in fact no cooperative society ever existed and was authorized to distribute sugar amongst its cardholders. The signatures available on Exhibit P/2 of the President and Manager of the society are not at one place but at several places which clearly indicate that simple denial has been made by them of the facts in order to shirk their responsibility and to establish that they never got the sugar under the order of 1976 Exhibit P/13. But, in view of evidence of PW. 5 Devendra Pal Singh and the audit report, it cannot be presumed that the statements of the above two witnesses i.e. PW. 1 Enforcement Officer Ramjilal Sharma and PW. 5 Audit Assistant Devendra Pal Single are not liable to be believed. Section 10-C of the Essential Commodities Act also states that once a fact is placed on record by documents then it becomes the duty of the accused persons to rebut that factum. 17. In the instant case, two courts have concurrently came to the conclusion that the accused-petitioners were responsible for embezzlement of sugar received by the society then simply on the plea that they were not members of the society they cannot escape from their liability in absence of any supporting evidence to that effect. The signatures found on the register etc. have also not been objected to by them to be not of theirs. If they had not signed the stock register etc. then the accused-petitioners could very well move the Court for getting the same examined by handwriting expert. In this case PW. 2, PW. 3 and PW. 4 have turned hostile. 18. In view of concurrent findings recorded by the courts below, I am of the opinion that the prosecution has been able to prove its case and the contentions raised in the petitions filed before this Court are not of any substance. The findings recorded by the courts below appears to be just, reasonable and proper. 19. Now the question which comes for consideration is that in view of the fact that more than 25 years have elapsed from the date of commission of the offence, whether the accused-petitioners are entitled to get the benefit under the provisions of Offenders Act? The findings recorded by the courts below appears to be just, reasonable and proper. 19. Now the question which comes for consideration is that in view of the fact that more than 25 years have elapsed from the date of commission of the offence, whether the accused-petitioners are entitled to get the benefit under the provisions of Offenders Act? In this connection, it is suffice to mention here that the two Courts below have concurrently found that the accused-petitioners have embezzled tonnes of sugar and have minted money out of the sugar meant for distribution to public at large it having been either not distributed or the having been sold in market, benefit has been extracted out of the same by the accused-petitioners, therefore, in such a state of affairs, in my humble view the accused-petitioners are not entitled to get benefit under the provisions of Offenders Act. But, at the same time taking into consideration the fact that at the time of committing offence the accused-petitioners namely Madanlal was 40 years, Gangasahay 40 years of age and Babulal was 60 years old, while maintaining the conviction awarded to them, their sentence is required to be modified. The ends of justice would meet if the accused-petitioners are convicted for the offence under Section 3/7 of the Essential Commodities Act and each one of them is sentenced to simple imprisonment for a period of one month and a fine of Rs. 5,000/-and in default of payment of fine to further undergo simple imprisonment for a term of 7 days. 9.20. In the result, the revision petition partly succeeds and the accused-petitioners are convicted under Section 3/7 of the Essential Commodities Act however their sentence is reduced and it is directed that the accused-petitioners shall undergo simple imprisonment for a period of one month and also pay fine of Rs.5,000/-, and in default thereof shall further undergo simple imprisonment for 7 days. The accused-petitioners are on bail. Their bail bonds are cancelled. The learned trial Court shall take steps for arresting the accused-petitioners to serve out the sentence. 21. Both the revision petitions stand disposed of accordingly