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2007 DIGILAW 2769 (MAD)

A. Nanjundan v. State of Tamil Nadu

2007-08-31

S.TAMILVANAN

body2007
Judgment :- This Criminal Revision is directed against the Judgment of Conviction, dated 10.02.2005 made in C.A.No.70 of 2002 on the file of the Additional Sessions Judge, Dharmapuri, confirming the conviction and sentence imposed in C.C.No.206 of 1991, dated 12. 2002 on the file of the Judicial Magistrate, Palacode. .2. The brief facts of the prosecution case is as follows : .The petitioner / accused was working as Clerk in Jackasamuthiram Primary Cooperative Bank during the period 212. 1987 to 30.06.1988. While so, he has collected a total sum of Rs.81,761.28/- from various persons, including the members of the Cooperative Bank, but fail to deposit the same in the Bank account and thereby committed criminal breach of trust, punishable under Section 408 IPC and also the offence by falsification of accounts, punishable under Section 477 A IPC. In support of the prosecution case, 16 prosecution witnesses were examined, apart from marking Exs.P.1 to P.73. On the side of the revision petitioner / accused, 6 defence witnesses were also examined. The trial court, considering the evidence and circumstances, held that the guilt against the revision petitioner / accused has been proved beyond reasonable doubt and accordingly, convicted and sentenced the petitioner / accused. Aggrieved by which, the revision petitioner / accused preferred appeal before the Sessions Court, Dharmapuri, by the impugned judgment, the appellate court confirmed the conviction and sentence imposed by the trial court. 3. Mr.S.R.Balasubramaniam, learned counsel appearing for the revision petitioner / accused would contend that the petitioner during the relevant period had been in charge of 4 co-operative fair price shops and due to the pressure of work, he could not deposit the money then and there, but subsequently, he deposited the entire amount and therefore, it can be contrued only as mismanagement and not criminal breach of trust, as held by the courts below. The learned counsel further contended that the revision petitioner was aged about 35 years during the alleged occurrence and that he is the bread winner of the family and in case found him guilty, he may loose his job. Based on the above said circumstances, the learned counsel pleaded for invoking Section 4 of Probation of Offenders Act. 4. Per contra, Mr.R.Muniyappa Raj, learned Government Advocate (crl. Based on the above said circumstances, the learned counsel pleaded for invoking Section 4 of Probation of Offenders Act. 4. Per contra, Mr.R.Muniyappa Raj, learned Government Advocate (crl. side) appearing for the respondent would contend that there is a direct evidence against the revision petitioner / accused, which would show that a total amount of Rs.81,761.28/-was collected by the revision petitioner from various persons, including the members of the Co-operative Bank, for which he has maintained day book, but failed to deposit the amount in the bank account and therefore, it would attract Section 408 IPC. As corresponding entries as per day book were not made in the ledgers by the petitioner, it would certainly attract Section 477 A IPC. 5. According to the learned counsel for the respondent, the trial court considering the evidence available on record, rightly convicted the petitioner / accused and the same has been confirmed by the appellate court. It is a well settled proposition of law that in a criminal revision, unless there is manifest error of law or perverse finding, leading to miscarriage of justice, this Court cannot interfere with the same. .6. In support of the prosecution case, the complainant has been examined as P.W.1, apart from examining the Sub Registrar, Dharmapuri and the Manager of Jackasamuthiram Primary Co-operative Bank respectively as P.W.2 and P.W.3. The salesmen of the fair price shops of Jackasamuthiram, Murukalnatham, Manendramangalam and Maravadi were examined as P.Ws. 8 to 11. Further, it is seen that the petitioner herein has issued receipt for the amount received from various persons for a total sum of Rs.81,761.28/- and as per the evidence and supporting documents marked as exhibits. It has been established that he made entries only in the day book maintained by him. The said day books were marked as Exs.P.17 to P.21, but corresponding entries were not made in the ledger for about six months. 7. The learned counsel appearing for the revision petitioner would contend that the revision petitioner’s immediate superior officers have not verified the accounts then and there and that was the reason for the amounts could not be deposited for about six months by the revision petitioner / accuse. But, as contended by the learned Government Advocate (crl. side), the reason assigned by the learned counsel for the revision petitioner cannot be accepted as a legal defence. But, as contended by the learned Government Advocate (crl. side), the reason assigned by the learned counsel for the revision petitioner cannot be accepted as a legal defence. Further, the petitioner use to issue receipts for the payments made by various persons and also made entries only in the day books maintained by him. Therefore, it could not be possible for his higher officials to verify and take action against the petitioner, which cannot be a defence in favour of the petitioner. It cannot be construed as mismanagement, since the huge amount collected by the petitioner was not deposited in the bank account for more than six months. 8. Considering the evidence on record, the trial court has held that the charges framed under Sections 408 and 477 A IPC have been proved beyond reasonable doubt and the appellate court has confirmed the same. 9. Hearing the arguments of both sides, considering the Judgments of the court below and also the oral and documentary evidence available on record, I am of the view that there is no manifest error of law or perverse finding leading to miscarriage of justice, so as to warrant this court to interfere with the same in this revision. 10. The learned Government Advocate (crl. side) has not denied that there is no bad antecedence against the revision petitioner / accused, but that alone is not sufficient to invoke Section 4 of Probation of Offenders Act. The criminal breach of trust or misappropriation of public money to the tune of Rs.81,761.28/- cannot be construed as a minor offence, so as to invoke the Probation of Offenders Act. However, considering the age of the petitioner and also the fact that he had no bad antecedence and the other facts and circumstances, to meet the ends of justice, I find it reasonable to reduce the sentence imposed by the courts below. 11. Accordingly, the sentence of one year RI imposed under Section 408 IPC is reduced to 3 months RI. However, the sentence impose under Section 477 A IPC is confirmed. It is ordered that both the sentence under Sections 408 and 477 A IPC shall run concurrently, as held by the courts below. The period of sentence already undergone by the petitioner / accused shall be set off. 12. This Criminal Revision is disposed of on the above terms.