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2010 DIGILAW 3174 (PNJ)

Swaran Singh v. State Of Punjab

2010-11-30

MOHINDER PAL

body2010
Judgment Mohinder Pal, J. 1. This judgment will dispose of the afore-stated Criminal Revisions as they arise out of the same First Information Report. 2. Petitioner Swaran Singh was deputed to work as Secretary of Khalaspur Co- operative Agricultural Service Society (hereinafter referred to as the Society) vide Resolution passed by the Society on 11.2.1984. While working as such, the petitioner misappropriated an amount of Rs. 3,08,715.17 during the years 1984, 1985 and 1986. Separate three challans were submitted by the police concerning the misappropriation of the amounts of the Society by the petitioner during the years 1984, 1985 and 1986 though a single F.I.R i.e F.I.R No. 32 dated 17.8.1988 under Sections 406 and 498 of the Indian Penal Code., (for short `the Code) had been registered against the petitioner at Police Station Bassi Pathana. Three different judgments and sentence orders were rendered by the learned trial Judge convicting and sentencing the petitioner under Section 408 of the Code. 3. Vide judgment of conviction and the sentence order dated 20.2.2001, concerning the misappropriation done by the petitioner during the year 1985, passed by the trial Court, the petitioner was convicted under Section 408 of the Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default whereof to undergo further rigorous imprisonment for four months. The appeal preferred by the petitioner against this judgment of conviction and the sentence order was dismissed by the lower appellate Court vide judgment dated 22.7.2003. Criminal Revision No. 387 of 2004 has been preferred by the petitioner against his conviction and sentence for the misappropriation of the Societys amount during the year 1985. 4. Vide judgment of conviction and the sentence order dated 2.2.2001, concerning the misappropriation done by the petitioner during the year 1984, passed by the trial Court, the petitioner was convicted under Section 408 of the Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default whereof to undergo further rigorous imprisonment for four months. The appeal preferred by the petitioner against this judgment of conviction and the sentence order was dismissed by the lower appellate Court vide judgment dated 22.7.2003. Criminal Revision No. 389 of 2004 has been preferred by the petitioner to challenge his conviction and sentence for the misappropriation of the Societys amount during the year 1984. 5. The appeal preferred by the petitioner against this judgment of conviction and the sentence order was dismissed by the lower appellate Court vide judgment dated 22.7.2003. Criminal Revision No. 389 of 2004 has been preferred by the petitioner to challenge his conviction and sentence for the misappropriation of the Societys amount during the year 1984. 5. Vide judgment of conviction and the sentence order dated 24.1.2001, concerning the misappropriation done by the petitioner during the year 1986, passed by the trial Court, the petitioner was convicted under Section 408 of the Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default whereof to undergo further rigorous imprisonment for four months. The appeal preferred by the petitioner against this judgment of conviction and the sentence order was dismissed by the lower appellate Court vide judgment dated 22.7.2003. Criminal Revision No. 390 of 2004 has been filed by the petitioner challenging his conviction and sentence for the misappropriation of the Societys amount during the year 1986. 6. Neither the trial Court nor the lower appellate Court passed any order as to whether these substantive sentences i.e rigorous imprisonment for two years, each, for the embezzlement/misappropriation of the Societys amount done by the petitioner during his tenure as Secretary of the Society for the years 1984, 1985 and 1986 would run concurrently or not though these proceedings had arisen out of the same F.I.R. 7. I have heard Mr. Fatehdeep Singh Khara, Advocate, Amicus Curiae, appearing for the petitioner and Mr. Vivek Chauhan, Assistant Advocate General,Punjab, appearing for the State of Punjab and have gone through the records of the case. 8. The Instant F.I.R was registered against the petitioner on 17.8.1988 on the basis of a written complaint submitted before the police by Ram Singh, Deputy Registrar of the Society alleging therein that the petitioner had misappropriated an amount of Rs. 3,08,715.17. It was alleged in the complaint that the petitioner was serving as a Secretary in the Society since 11.2.1984 and that during his tenure he had been receiving several amounts from various members of the Society in respect of which he had made entries in their Pass Books but had not made corresponding entries in the Cash Register and other Account Books of the Society. As such, he had misappropriated the various amounts. As such, he had misappropriated the various amounts. Besides, the petitioner had not entered 75 Bags of Urea in the Stock Register of the Society in July 1986 and had misappropriated the amount of 75 bags of Urea valued at Rs. 7698.75. Further allegation against the petitioner was that against the sale of 177 bags of Urea on 1.7.1985, he had shown the sale of 178 bags; thereby misappropriating an amount of Rs. 107.75. It was also alleged that the petitioner, on 18.6.1985, had shown payment of salary of Rs. 7015.20 for the period from 1.7.1984 to 30.6.1985 to Salesman Jasbir Singh, who had refused having received the said payment. Salesman Jasbir Singh had also not issued any receipt to the petitioner in this regard. 9. After recording evidence and hearing the learned counsel for the parties, the trial Court, vide three separate judgments of conviction and the sentence order, mentioned above, convicted and sentenced the petitioner as aforesaid. The appeals filed by the petitioner were dismissed by the lower appellate Court. 10. The petitioner was deputed to work as Secretary of the Society vide Resolution dated 11.2.1984. The Resolution dated 11.2.1984, when translated into English, is as follows : "It is also resolved that during the period of suspension of Secretary of the Society, work of Secretary shall be looked after by Shri Swaran Singh, Cashier-cum-Salesman. He will not be paid any allowance for this additional work." 11. During the course of arguments, learned counsel for the petitioner stressed on the point that both the Courts below did not take into consideration the point that he matter had already been settled by the Arbitrator. Arbitration proceedings are not there on record. However, this Court cannot ignore the fact that the instant matter is not of a civil nature as the petitioner had .misappropriated/embezzled huge amount of the Society while performing his duties as Secretary of the Society. II In this regard, the authorities reported as Bal Kishan Das v. P.C. Nayar, 1991(3) R.C.R.(Criminal) 374 : 1991 Supp (2) Supreme Court Cases 412 and Kailash Verma v. Punjab State Civil Supplies Corporation and another, 2005 (1) R.C.R (Criminal) 727 may be noticed. 12. II In this regard, the authorities reported as Bal Kishan Das v. P.C. Nayar, 1991(3) R.C.R.(Criminal) 374 : 1991 Supp (2) Supreme Court Cases 412 and Kailash Verma v. Punjab State Civil Supplies Corporation and another, 2005 (1) R.C.R (Criminal) 727 may be noticed. 12. In the afore-mentioned judgments, the Honble Supreme Court did not lay down any absolute proposition of law that the existence of an arbitration clause or the pendency of I arbitration proceedings would absolve the accused of his criminal liability for the offence committed by him, which the prosecution has been able to prove on record by leading cogent and convincing evidence, as in the present case. 13. In Bal Kishan Dass case (supra), the Honble Supreme Court, after examining the facts of the case and specifically taking note of the facts that after registration of the case under Section 409 of the Indian Penal Code, the Vigilance Department had dropped the case and the arbitration proceedings were pending for more than seventeen years, quashed the criminal proceedings. This judgment of the Apex Court, in the facts and circumstances of that case, cannot be construed as a precedent for the proposition that the existence of an arbitration clause bars the filing of a complaint or an F.I.R for the offences Sections 406/ 409 of the Indian Penal Code. 14. In Kailash Vermas case (supra), the appellant was discharged by the Chief Judicial Magistrate. The Chief Judicial Magistrate was of the view that the allegation contained in the complaint was of civil nature and no criminal case was made out. The Chief Judicial Magistrate also observed that there was no prima facie case to show that the paddy was supplied to the accused and that there was shortage of rice supplied to the Civil Supplies Corporation. The order of the Chief Judicial Magistrate was challenged by the Corporation in a Revision filed before the Court of Sessions Judge, Sangrur. The Sessions Judge, after elaborately considering the question raised, upheld the order passed by the Chief Judicial Magistrate. The Sessions Judge noticed the fact that the Corporation had initiated arbitration proceedings against the appellant and had, also filed a complaint under Section 138 of the Negotiable Instruments Act and that the filing of criminal complaint alleging commission of an offence punishable under Section 406 of the Indian Penal Code was an abuse of the process of the Court. The Sessions Judge noticed the fact that the Corporation had initiated arbitration proceedings against the appellant and had, also filed a complaint under Section 138 of the Negotiable Instruments Act and that the filing of criminal complaint alleging commission of an offence punishable under Section 406 of the Indian Penal Code was an abuse of the process of the Court. The Corporation filed a further Revision before this Court and a learned Single Judge of this Court set aside the orders passed by the Courts below. Thus, as there was no prima facie evidence of entrustment of paddy or shortage of rice supplied to the Corporation , the Honble Supreme Court held that the dispute was of civil nature and no offence under Section 406 of the Indian Penal Code was made out. It was not held in Kailash Vermas case (supra) that the existence of an arbitration clause between the parties bars launching of criminal proceedings. 15. In this case, as noticed above, the petitioner has been found guilty by both the Courts below. There is overwhelming evidence on record to prove that the petitioner, in fact, misappropriated huge amount of the Society while he had been deputed to work as Secretary of the Society. The total amount misappropriated by the petitioner was Rs. 3,08,715.17. Since 11.2.1984, when the petitioner was deputed to work as Secretary of the Society, he had received several amounts from the members of the Society. For those amounts, the petitioner had made entries in the Pass Books of the members of the Society from whom he had received the amounts. However, he (petitioner) did not make corresponding entries in the Cash Register/ Account Books of the Society, thus, misappropriating the amounts belonging to prosecution, by producing various witnesses, the entries made by the petitioner in the the Society. The proved on record Pass Books of the members of the Society in respect of the amounts received from them by the petitioner. In addition to this, the petitioner had failed to enter 75 Bags of Urea in the Stock Register of the Society; thereby misappropriating the amount of 75 bags of Urea valued. The prosecution has also proved on record that the petitioner had shown the sale of 178 bags against the sale of 177 bags of Urea. He had, thus, misappropriated the amount of one bag of Urea. The prosecution has also proved on record that the petitioner had shown the sale of 178 bags against the sale of 177 bags of Urea. He had, thus, misappropriated the amount of one bag of Urea. Still further, the prosecution proved on record that the petitioner had, in the records of the Society, wrongly shown payment of salary of Rs. 7015.20 to Salesman Jasbir Singh, but no such payment had been made to Jasbir Singh. No receipt had been received by the petitioner from Jasbir Singh. 16. For the aforesaid reasons, the prosecution has been able to prove its case against the accused-petitioner and he has rightly been convicted under Section 408 of the Code. Conviction of the petitioner for this offence is, accordingly, confirmed. 17. Insofar as sentence awarded to petitioner Swaran Singh, the instant F.I.R was registered against the petitioner on 17.8.1988 and the Sword of Damocles has remained hanging over the head of the petitioner for more than 22 years. Presently, the petitioner is more than 70 years old. Keeping in view the facts and circumstances of the case, I am of the considered opinion that ends of justice will be adequately met with if the sentence of rigorous imprisonment, awarded to the petitioner, subject-matter of these three revision petitions, mentioned above, is reduced from two years to one year, in each case, which have arisen out of the same F.I.R without altering the sentence of fine imposed on petitioner in each case and the default clause. I order accordingly. It is further ordered that the sentence of rigorous imprisonment of one year, awarded to the petitioner in each case, shall run concurrently. 18. While maintaining the conviction of the petitioner under Section 408 of the Code, the impugned sentence orders stand modified to the extent indicated above. 19. With the above modification in the sentence orders, these revision petitions are hereby dismissed.