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2009 DIGILAW 508 (PNJ)

Jaspal Singh v. State Of Haryana

2009-03-18

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This revision - petition is directed against the judgment dated 09.07.2002, rendered by the Court of Additional Sessions Judge, Ambala, vide which it dismissed the appeal against the judgment of conviction and the order of sentence dated 12.08.2000, rendered by the Court of Judicial Magistrate 1st Class, Ambala Cantt, convicting the accused for the offence punishable under Section 409 of the Indian Penal Code and awarding him sentence to undergo RI for a period of two years and to pay a fine of Rs. 1500/ - , in default of payment of fine, to undergo further rigorou imprisonment for a period of 15 days 2. The facts, in brief, are that the accused (now revision - petitioner) was Sarpanch of village Rampur District Ambala from May 1989 to December 1989. During this period, he was entrusted with a sum of more than Rs. 35,000/ - in such capacity. He kept the amount more than Rs. 35,000/ - as cash, in hand, though he could only keep a sum of Rs. 1000/ - as cash in hand, according to the provisions of Panchayati Raj Act and Rules framed thereunder. In this manner, he misused the amount for a certain period and, thus, dishonestly mis - appropriated the same. On the aforesaid allegations, the case was registered against the accused. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the chal - lan was presented, against the accused. 3. On his appearance, in the trial Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 409 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution in support of its case examined Suresh Kumar, (PW - 1), Gurnam Pram, Chur Singh, Head Constable. (PW - 3), Mehar Chand, Sub Inspector, (PW - 4), Laxman Dass, DSP (PW - 5), and Nand Kishore, Inspector, (PW - 6). Thereafter, the Assistant Public Prosecutor for the State closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. 6. Thereafter, the Assistant Public Prosecutor for the State closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. 6. In his defence, the accused tendered Marks 1 to X. Thereafter, the accused closed the defence evidence. 7. After hearing the Counsel for the parties and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of trial Court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 09.07.2002, by the Court of the Additional Sessions Judge, Ambala. 9. Still dis - satisfied, the instant revision petition was filed by the revision - pititioner. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 11. The Counsel for the revision - petitioner submitted that no offence, punishable under Section 409 of the Indian Penal Code, was committed by the accused. He further submitted that, at the relevant time, the development work of the panchayat, was going on, in the village. He further submitted that a sum of Rs. 12,000/ - was given as advance to M/s. Standard Brick Co. by the accused. He further submitted that the accused also purchased bricks for the purpose of development work, and spent the amount which was cash, in hand, with him for this purpose. He further submitted that there was no dishonest intention, on the part of the accused, to retain the amount, entrusted to him, and, as such, he could not be said to have misappropriated the same. 12. On the other hand, the Counsel, for the respondent State, submitted that, the Courts below, were right in coming to the conclusion, that an amount more than Rs. 35,000/ - was entrusted to the accused, being the property of the panchayat. She further submitted that he accused could only retain a sum of Rs. 1000/ - in cash, in hand, and the amount over and above the same, was required to be deposited by him, in the bank. She further submitted that instead of depositing the cash amount cover and above Rs. She further submitted that he accused could only retain a sum of Rs. 1000/ - in cash, in hand, and the amount over and above the same, was required to be deposited by him, in the bank. She further submitted that instead of depositing the cash amount cover and above Rs. 1000/ - , as per the relevant provisions of the Act, and Rules, he kept on using the same for his personal use, and, thus, temporarily dishonestly misappropriated the same though he, ultimately deposited the same. She further submitted that the Courts below were right in recording concurrent findings, that the accused was guilty of the commission of offence, punishable under Section 409 of the Indian Penal Code. 13. Suresh Kumar, (PW - 1), who was posted as Secretary from June 1989 to May 1990, in Gram Panchayat. Rampur, wherein the accused was Sarpanch for the said period, stated that the cash book was being maintained by him. It was further deposed to by him, that the Sarpanch was empowered to keep the amount of Rs. 1000/ - in cash, in hand, as per the Panchayati Raj Act. He proved various entries in the cash book Ex.P.l It is evident from Page 18 of the cash book Ex.Pl, that the accused kept cash, in hand, to the tune of Rs. 35,382.92 in the month of May, 1989. He also kept the amount of Rs. 17,907.92 cash, in hand, in the month of June, 1989 asrshown at page No. 19 of cash book (Ex.Pl) It is further evident from the statement of Suresh Kumar (P W - 1) that the amount - of Rs. 12,189.52 cash, in hand, in the month of July, 1989, as shown at page No. 20 of the cash book, was kept by the accused., The amount of Rs. 3950.29, shown at page No. 21, the amount of Rs. 4942.29, shown at page No. 23, the amount or Rs. 4511.29, shown at page No. 24. and the amount of Rs. 3688.29, shown at page No. 25, of the cash book, (Ex.P - 1) was kept by the accused as cash, in hand. This witness identified the signatures of the accused, on every page of the cash book because he was working with him. 4511.29, shown at page No. 24. and the amount of Rs. 3688.29, shown at page No. 25, of the cash book, (Ex.P - 1) was kept by the accused as cash, in hand. This witness identified the signatures of the accused, on every page of the cash book because he was working with him. Gurnam Singh, (PW - 2) who remained posted as SEPO, Barara, from May, 1989 to December, 1992, conducted inquiry/investigation against the accused, on the complaint of Prern Singh etc. During the course of investigation, it was found by him, that the accused kept cash, in hand, more than Rs. 1000/ - from November, 1988 to December, 1989 while as per the Panchayati Raj Act he could only keep the cash, in hand, to the tune of Rs. 1000/ - . He corroborated the statement of Suresh Kumar, (PW - 1). The accused, however, deposited the amount at a very belated stage. The accused also did not deny at any stage regarding the retention of amount aforesaid. Both these witnesses had no ill - will, grudge or enmity against the accused. Their evidence was rightly found to be cogent, convincing, reliable and trust - worthy by the Courts below. On the basis of the said cogent, convincing, reliable and trust - worthy evidence, the Courts below recorded concurrent findings, that by keeping the amount of more than Rs. 35,000/ - cash, in hand, which belonged to the Gram Panchayat of village Rampur, the accused temporarily dishonestly misappropriated the same. 14. No doubt, a plea was raised by the accused, that he spent the amount for the purchase of bricks, and other material, required for the development of the village, out of the amount which was cash, in hand, with him, yet he could no produce any documentary evidence, in this regard. If the accused allegedly spent some amount for the purchase of bricks and other materials for the development works, from the amount, which was cash, in hand, with him, without obtaining sanction, from the competent authority, he could not absolve himself of the criminal liability. If the accused allegedly spent some amount for the purchase of bricks and other materials for the development works, from the amount, which was cash, in hand, with him, without obtaining sanction, from the competent authority, he could not absolve himself of the criminal liability. It is settled principle of law, that while exercising re - visional jurisdiction, the Court cannot re - evaluate and re - appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion that the findings recorded by the Courts below, are either perverse or illegal or erroneous, on the account of misreading of evidence. The careful perusal of the judgments of the Courts below, in context with the evidence, does not indicate that the findings are either perverse or illegal or erroneous, or account of misreading of evidence There is therefore, no warrant to interfere with the same. 15. The Counsel for the revision - petitioners, however, submitted that the revision - petitioner, has been facing the criminal proceedings since 24.03.1992 i.e. for the last more than 16 years. He further submitted that the revision - petitioner has got no previous criminal record. He further submitted that lenient view may be taken by reducing the sentence, awarded to the accused, to the period already undergone by him, which is only for a few days. The submission of the Counsel for the revision - petitioner, in this regard, does not merit acceptance. Undue sympathy to impose inadequate sentence, would do more harm to the justice system, to undermine the public confidence, in the efficacy of law, and the society could no longer endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence, having regard to the nature of offence, and the manner, in which it was executed or committed. In the instant case, the accused, being the Sarpanch of Gram Panchayat, Rampur and the headman the same, was required to act, in accordance with tie provisions of law. He threw the provisions of law to the winds and continued misappropriating the amount of more than Rs. 35,000/ - by keeping the cash, in hand, though he was not legally authorized to keep more than Rs. 1000/ - per month, cash in hand. The sentence awarded by the trial Court, and affirmed by the Appellate Court, was, thus, commensurate with the guilt of the accused. 35,000/ - by keeping the cash, in hand, though he was not legally authorized to keep more than Rs. 1000/ - per month, cash in hand. The sentence awarded by the trial Court, and affirmed by the Appellate Court, was, thus, commensurate with the guilt of the accused. The sentence awarded cannot be said to be either harsh or excessive in any manner. No ground, whatsoever, is made out, to reduce the same. The submission of the Counsel for the revision petitioner, being without merit, must fail, and the same stands rejected. 16. For the reasons recorded, hereinbefore, the revision - petition, being devoid of merit, must fail, and the same is dismissed. The judgment dated 09.07.2002, rendered by the Court of Additional Sessions Judge, Ambala, affirming the judgment of conviction and the order of sentence dated 12.08.2000, rendered by the Court of Judicial Magistrate 1 st Class, Ambala Cantt, is upheld. If the revision/petitioner is on bail, his bail bonds shall stand cancelled. 17. The Chief judicial Magistrate, is directed to take necessary steps, in accordance with the provisions of law, to comply with the judgment, within a period of two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.