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Madhya Pradesh High Court · body

2006 DIGILAW 216 (MP)

JAIPAL SINGH CHANDEL v. STATE OF MADHYA PRADESH

2006-02-07

S.C.VYAS

body2006
Judgment ( 1. ) THIS revision is directed against judgment dated 18-1-2000 passed by additional Sessions Judge, Kannaud in Cr. A No. 38/1999, whereby conviction of applicant for the offence punishable under Section 409 and sentence of 3 years R. I. and fine of Rs. 3,000/- was affirmed and appeal preferred against the judgment of JMFC Khategaon dated 24-3-1999 in Cr. Case No. 100/98 by the applicant was dismissed. ( 2. ) SHORT facts of the case are that applicant was working as Secretary of Sewa Sehkari Sanstha Maryadit, Loharda (herein after for short called as the society) from 27-9-1985 till 1988. When the cash book of the Society was examined by Ramchandra PW-7, Supervisor then it revealed that there was shortage of cash in the account of the Society to the tune of Rs. 19,608. 50 paisa. It was also found that there was shortage of 9 kg of cotton seeds in the stock of the Society. The matter was reported to the police on the basis of which offence was registered as per FIR Ex. P-4 and matter was investigated, after completing the investigation charge sheet was filed against the present applicant before learned Magistrate who after trial found him guilty and convicted and sentenced him as stated hereinabove. Appeal preferred by applicant also failed, so he has come before this Court by way of this revision. ( 3. ) LEARNED Counsel for the applicant Shri R. N. Gupta submitted that no sanetion for prosecution as envisaged under Section 197 of the Cr. P. C. was obtained from the competent authority and so the prosecution of the applicant was bad in law for want of such sanction. It is also contended by him that as per the provisions of Section 76 (2) of the M. P. Co-operative Societies Act sanction for prosecution from Registrar Co-operative Society was also required, such sanction was also not obtained before prosecution of the applicant and on this count alone applicant deserves acquittal in the present case. ( 4. ) LEARNED Additional Sessions Judge has considered this aspect of the matter in paragraph 9 to 12 of the impugned judgment. It has been observed that applicant does not come in the category of such public servant who is not remove from his office save by or with the sanction of the Government so any sanction under Section 197 Cr. ) LEARNED Additional Sessions Judge has considered this aspect of the matter in paragraph 9 to 12 of the impugned judgment. It has been observed that applicant does not come in the category of such public servant who is not remove from his office save by or with the sanction of the Government so any sanction under Section 197 Cr. P. C. for prosecution is not necessary in the facts of the present case. Applicant was working on the post of Secretary, co-operative Society and his appointing authority was District Central co-operative Bank, Dewas. He does not come in the category of such public servants who cannot be removed from service save by or under the sanction of the Government, therefore, learned Lower Appellate Court rightly held that not obtaining sanction under Section 197 of the Cr. P. C. does not put any bar on taking cognizance of the offence against the present applicant. ( 5. ) SIMILARLY the provisions of Section 76 (2) of the Co-operatives societies Act are relating to the prosecution of a person under the provision of that Act and that provision has no application when a public servant is prosecuted for an offence punishable under Section 409 of IPC. Therefore, learned Lower Appellate Court rightly held that Section 76 (2) of the co-operative Societies Act also does not come in the way of the prosecution of the applicant. ( 6. ) LEARNED Counsel for the applicant further submitted that applicant was ill when the said disputed entries were made in the record of the co-operative Society and he cannot be held responsible for making such entries and for misappropriation of any fund of the Society. In his absence due to illness entries in cash books were made by someone else namely Lakhanlal PW-1 who himself has admitted during his examination that when applicant was ill then the charge of Co-operative Society, Loharda was also given to him. This contention is also of no avail to the present applicant because admittedly the disputed entries in the cash book bears signature of the applicant so he cannot escape from the responsibility of any act committed by making such entries in the cash book of the Society. ( 7. This contention is also of no avail to the present applicant because admittedly the disputed entries in the cash book bears signature of the applicant so he cannot escape from the responsibility of any act committed by making such entries in the cash book of the Society. ( 7. ) LEARNED Counsel for the applicant further contended that applicant was on leave when the disputed entries were made in the cash book and he took this defence during his examination under Section 313 of Cr. P. C. and also laid defence witnesses to prove his defence but learned Lower Court failed to appreciate the statements given by defence witnesses in this regard and failed to appreciate the defence taken by the applicant properly. ( 8. ) NO doubt in the statement given under Section 313, Cr. P. C. by applicant it has been stated that during the period of his illness he was on leave and Lakhanlal Gangrade, Radheshyam, Om Prakash and Gyanesh Kumar Joshi were working at his place and they made the disputed entries in the cash book of the Society, but there is no material on record to indicate that on which dates applicant was on leave and who was working at his place during that period. Only witness Lakhanlal Gangrade PW-1 in his examination in chief has stated that when applicant became ill then the charge of the Society was given to him and then the record of the Society was inspected by Supervior Ramchandra Sharma and Branch Manager, who found that there is some calculation mistake regarding the amount in the cash book, thereafter the matter was reported to the Branch Manager. No specific suggestion was given to this witness showing that applicant was on leave on all such dates when the disputed entries were made in the cash book. Similarly no such suggestions were given to witness radheshyma PW-2, Mangilal PW-3. Witness Om Prakash PW-5 has specifically denied in Paragraph 7 of his cross examination that disputed entries were made by Lakhanlal Gangrade and Radheshyam. He was asked in cross examination regarding dates on which the applicant was on leave then he stated that he is not in a position to state as to whether applicant was on leave on those dates which were suggested to this witness. He was asked in cross examination regarding dates on which the applicant was on leave then he stated that he is not in a position to state as to whether applicant was on leave on those dates which were suggested to this witness. Similarly Supervisor Ramchandra PW-7 has also deposed before the Trial Court that cash found short when the record of the society was examined by this witness. ( 9. ) LEARNED Trial Court as well as learned Appellate Court has appreciated the statement of the prosecution witnesses in detail and then came to the conclusion that applicant misappropriated Rs. 19,608. 50 during the period from 15-3-1988 to 21-6-1988. ( 10. ) LEARNED Counsel for the applicant drawn attention of this Court towards the statement of Dr. Ramesh Kumar Jain DW-2 who stated that applicant was having problem of Renal Colline and was treated by him on 3-6-1988. He has further stated that during the same period he also lost his son due to snake bite. On the basis of statement given by this witness learned counsel for the applicant submitted that applicant himself was ill and was not mentally well due to loss of his own son. This fact was also required to be considered by Lower Appellate Court, who failed to take note of this fact while deciding the appeal. It has also been argued on behalf of the applicant that as per the statement given by defence witness Keshersingh DW-1 prosecution under sections 406, 409, 467, 468, 471 and 120 (b) of the IPC was pending against witness Lakhanlal Gangrade and Radheshyam and, therefore, no finding should have been given against applicant on the basis of statements given by such witness. ( 11. ) WITNESS Radheshyam and Lakhanlal Gangrada might be facing prosecution in some other case but this fact itself is not sufficient to categorise them as non-reliable witnesses. The cash book of the Society was examined by supervisor and misappropriation of more than Rs. 19,000/- was detected, therefore the present case is based on the entries made in the cash book which was duly examined by a competent officer. Learned Lower Court as well as appellate Court have examined this aspect also in detail in their judgments and rightly negatived the submissions made on behalf applicant in this regard. ( 12. 19,000/- was detected, therefore the present case is based on the entries made in the cash book which was duly examined by a competent officer. Learned Lower Court as well as appellate Court have examined this aspect also in detail in their judgments and rightly negatived the submissions made on behalf applicant in this regard. ( 12. ) AFTER careful examination of the record of the Trial Court and after considering the arguments advanced by learned Counsel for the applicant I am of the view that learned Trial Court as well as Appellate Court has not committed any mistake in finding applicants guilty for the offence punishable under Section 409 of IPC and so his revision fails, so far as the conviction part is concerned. ( 13. ) ULTIMATELY, learned Counsel for the applicant prayed for a mercy and leniency in the matter of sentence. He submitted that applicant has lost his son and was having Renal problem effecting his kidneys and was not having proper mental balance at the time of incident. This aspect should be taken into consideration at the time of awarding the sentence. He has further submitted that applicant was appointed in the year 1985 and he had hardly put service of 3 years when the alleged offence of misappropriation of Government money was detected. It has further submitted by learned Counsel for the applicant that this appears to be a case of wrong calculation as original cash books have not been produced before learned Trial Court. He has placed reliance on the judgment of honble Supreme Court in the case of R. V. Lyngdoh Vs. State of Delhi Spl. Establishment [1999 SAR (Criminal) 160]. ( 14. ) SUBMISSIONS made by learned Counsel for the applicant deserves sympathetic consideration on the question of sentence. Record of the case shows that applicant was appointed in the society in the year 1985, statement of defence witness Dr. Jain also shows that he was having Renal problem at the time of incident and had lost his son due to snake bite. Witness Lakhanlal gangrade in his examination in chief has stated that when he took charge of the society and record of the Society was examined by Supervisor Ramchandra, it was found that there was some calculation mistake in the record. Witness Lakhanlal gangrade in his examination in chief has stated that when he took charge of the society and record of the Society was examined by Supervisor Ramchandra, it was found that there was some calculation mistake in the record. Honble supreme Court in the Case of R. V. Lyngdoh (supra), held that:- "looking to the age of the appellant and his health and looking to the facts that the office was newly established and the staff employee was inexperience, it would be just and proper for the ends of justice that the sentence of one years imposed upon the appellant is reduced to the period already under gone and, therefore, the order of sentence was modified. " ( 15. ) THE facts of the above reported case are distinguishable to some extent, but even then in the present case also it appears that due to illness and due to lost of his own son in young age applicant performed his duties negligently which resulted into some mistake of calculation in the cash or up to some extent misappropriation of Government money. I feel in the facts and circumstances of the present case when the applicant was remained in jail from 18-1-2000 till 17-2-2000 i. e. roughly about a month, then no useful purpose will be served by sending applicant back to jail after about 18 years from the date of offence when he has already lost his job also. Therefore, the conviction of the applicant under section 409 of IPC is sustained but the sentence awarded to him is modified and he is sentenced with jail sentence to the period already undergone with a fine of rs. 20,000/-, he will have to undergo for simple imprisonment for six months in default of payment of fine within one month from today, if he fails to deposit the amount within one month then Trial Court will summon him by issuing non-bailable warrant and will send him to jail to serve out the sentence in default of payment of fine.