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2012 DIGILAW 498 (ALL)

HRIDAY NARAIN PANDEY v. STATE OF U. P.

2012-02-24

RAMESH SINHA

body2012
Ramesh Sinha, J.;- Heard Sri P.N. Tripathi, learned counsel for the revisionist, Sri Rahul Srivastava, learned AGA for the State and perused the record of the case. 2. This criminal revision has been preferred against the judgement and order dated 31.1.2005, passed by the Additional District and Sessions Judge/Fast Track Court No.5, Jaunpur, by which the Lower Appellate Court has upheld the judgement and order dated 27.11.1998 passed by the Chief Judicial Magistrate,Jaunpur in Criminal Case No.2244 of 1997 ( State Vs. Hriday Narain Pandey) by which the trial Court has convicted and sentenced the revisionist for the six months R.I. under Section 406 I.P.C. and further imposed a fine of Rs.5,000/- and in default of payment of fine, he shall undergo nine months R.I. 3. Brief facts of the present case are, that an FIR was lodged by Bharat Singh Azad, Branch Manager, National Small Scale Industries Corporation Ltd. ( Government of India undertaking), Kanpur ( hereinafter referred to as 'the Corporation) on 1.3.1986 mentioning that the accused Hriday Narain Pandey was given five machines, namely, Tradel Printing Machine, Cutting Machine, Wire Stiching Machine, Perforating Machine, Electric Machine by the Corporation under Higher Purchase Agreement. According to the said agreement, after paying the entire loan amount, the accused would become the absolute owner of the said machines and in default of payment by the accused, the said machines would be the property of the Government of India. There were seven instalments outstanding on the accused. By registered letter, demand was sent to him for paying the outstanding amount but he did not pay the same. On 1.3.1986, the informant found that the accused has sold Cutting Machine worth Rs. 8000/-, thus, the accused has committed breach of trust of the property of the Government of India, for which the informant gave a written application at Police Station Jaunpur for lodging an FIR. The informant further sealed the printing press of the accused. 4. The prosecution also submitted a report that during the investigation of the present case, the accused broke the seal and lock and also sold the rest of the machines for which an FIR was lodged on 7.8.1987, which is marked as Exhibit Ka-3. 5. After investigation, the Investigating Officer submitted a charge sheet against the accused Hriday Narain and charges were framed against him by Chief Judicial Magistrate for offence under Section 406 I.P.C. on 18.5.1992. 5. After investigation, the Investigating Officer submitted a charge sheet against the accused Hriday Narain and charges were framed against him by Chief Judicial Magistrate for offence under Section 406 I.P.C. on 18.5.1992. The prosecution examined PW1-K.P.Singh to support the prosecution story before the Trial Court. The prosecution in support of its has filed higher purchase agreement ( Exhibit Ka-4), FIR ( Exhibit Ka-5) and Site Plan ( Exhibit Ka-6). 6. The statement of accused under Section 313 Cr.P.C. was recorded by the trial Court in which he has admitted that there was a higher purchase agreement between him and the Corporation. He further stated that a wrong FIR has been lodged against him and in his defence he has produced notice ( Exhibit Ka-1) and receipts ( Exhibit Kha-2 to Exhibit Kha-4). 7. The trial Court after examining the prosecution evidence as well as the defence submitted by the accused revisionist, came to the conclusion that the accused has committed an offence under Section 406 I.P.C. and the prosecution has proved its case beyond reasonable doubts. The trial Court found that the accused when failed to pay the outstanding amount to the Corporation, he sold Cutting Machine and further the printing press of the revisionist was sealed by the authorities on 1.3.1986. He had applied for the release of the said machines from the Court and the Sessions Judge vide order dated 17.5.1986 directed for release of the machine in favour of the revisionist, subject to the condition that he would furnish a bank guarantee of Rs.30,000/-, but the revisionist did not furnish the said bank guarantee. Thereafter the revisionist broke the lock and seal and sold rest of the machines which were the property of the Corporation and committed an offence of criminal breach of trust. 8. The trial Court vide order dated 27.11.1998 convicted the revisionist for offence under Section 406 I.P.C. and sentenced him to undergo six months R.I. and further imposed a fine of Rs. 5,000/- and in default of payment of fine, he has to undergo nine months R.I. 9. Being aggrieved by the judgment and order dated 27.11.1998 passed by the C.J.M., Jaunpur, the revisionist preferred an Appeal before the Lower Appellate Court being Criminal Appeal No. 49 of 1998 ( Hriday Narain Vs. State). 5,000/- and in default of payment of fine, he has to undergo nine months R.I. 9. Being aggrieved by the judgment and order dated 27.11.1998 passed by the C.J.M., Jaunpur, the revisionist preferred an Appeal before the Lower Appellate Court being Criminal Appeal No. 49 of 1998 ( Hriday Narain Vs. State). The Lower Appellate Court also after going through the entire records upheld the the judgment and order dated 27.11.1998 passed by the C.J.M.,Jaunpur and dismissed the appeal of the revisionist. Hence the revisionist has preferred the present revision before this Court. 10. Learned counsel for the revisionist has submitted that there is no evidence against the revisionist and he has been wrongly convicted by the Courts below, though no offence under Section 406 I.P.C. is made out against the him. It was further submitted that there was one instalment due to the revisionist worth Rs.1104/-. Learned counsel for the revisionist has also placed reliance on the judgement of Supreme Court in the case of Trilok Singh and others Vs. Satya Deo Tripathi reported in AIR 1979 SC 850 and has submitted that in view of the said judgement of the Supreme Court, the orders of the Courts below are liable to be quashed as no offence is disclosed against the revisionist and the present case is also purely of civil nature and no criminal proceedings can be initiated against the revisionist. 11. Learned counsel for the revisionist has lastly submitted that the sentence awarded to the revisionist is too harsh and he is an old man aged about 62 years and the incident has now become old and stale as the same pertains to the year 28.2.1986. The learned counsel after seeing the Lower Court Record has stated that revisionist has been in jail for seven days in all and rest of the period of detention may be converted into fine which will not be treated as enhancement of fine. 12. The learned counsel after seeing the Lower Court Record has stated that revisionist has been in jail for seven days in all and rest of the period of detention may be converted into fine which will not be treated as enhancement of fine. 12. On the other hand, learned AGA submitted that the accused revisionist has not paid the outstanding amount due to the Corporation, which is a Government of India undertaking and has also sold the Cutting Machine worth Rs.8,000/- which was the property of the Corporation when the printing press of the revisionist in the name and style of 'Hari Shanker Printing Press Khwaji Tola, Station Road, Jaunpur' was sealed by the authorities on 1.3.1986 then during investigation, rest of the machines were also sold by the revisionist. He submitted that the revisionist has committed a criminal offence under Section 406 I.P.C. he has been rightly convicted by the Courts below and there is no illegality or infirmity in the orders passed by the Courts below, hence the same should be upheld by this Court. 13. Having considered the submissions advanced by the learned counsel for the parties and from perusal of the record, it appears that the revisionist had entered into a higher purchase agreement with the Corporation on 12.6.1980 and on 13.10.1980 he was given five machines, namely, Tradel Printing Machine, Cutting Machine, Wire Stiching Machine, Perforating Machine, Electric Machine. In pursuance of the said agreement, he was required to pay nine instalments, as is evident from the agreement, and he has paid only six instalments to the Corporation and further when the registered notices were sent by the Corporation to the revisionist demanding the payment of outstanding amount, then he did not pay the same. The informant along with PW1-K.P. Singh, who is Field Inspector after receiving of the information, visited the printing press of the revisionist on 1.3.1986 and found that the Cutting Machine worth Rs. 8,000/- was missing from the printing press of the revisionist and on coming to know that it has been sold out by the revisionist without paying of the outstanding amount to the Corporation. 8,000/- was missing from the printing press of the revisionist and on coming to know that it has been sold out by the revisionist without paying of the outstanding amount to the Corporation. During investigation on 17.5.1986 an application was moved by the revisionist for releasing the machines and printing press, on which the Sessions Judge vide order dated 17.5.1986 directed that the machines be released in favour of the revisionist subject to the condition that he furnish a bank guarantee of Rs. 30,000/-. The revisionist did not furnish the bank guarantee for the release of the machines and further he sold the rest of the machines of the printing press which were the property of the Corporation. 14. From the evidence of PW1-K.P. Singh it is evident that on 17.5.1986 another FIR was lodged against the revisionist for selling of the rest of the machines which were sealed by the authorities during the pendency of the investigation of the present case. It is an admitted fact that the revisionist had taken a loan under the higher purchase agreement from the Corporation for five machines and when he failed to pay the full loan amount to the Corporation, he sold the Cutting Machine worth Rs.8000/- which was the property of the Corporation, hence he committed an offence under Section 406 I.P.C. 15. Both the Courts below have rightly convicted the revisionist on the basis of the evidence on record and there is no illegality in the judgement and orders passed by the Courts below in convicting and sentencing the revisionist, hence no interference is called for by this Court in the present revision. 16. The case cited by the learned counsel for the revisionist of the Supreme Court in Trilok Singh and others ( Supra) is not applicable in the instant case as the case cited by the learned counsel for the revisionist is totally distinguishable from the facts of the present case. The case cited above was at the stage of when the process was issued summoning the accused. The case cited above was at the stage of when the process was issued summoning the accused. The Supreme Court in the facts and circumstances of the said case has held that the proceedings initiated was clearly in abuse of the process of the Court as the dispute raised was purely of civil nature and the High Court ought to have quashed the proceedings in exercise of its inherent power under Section 482 Cr.P.C. In the instant case, the trial Court after recording the evidence found that the revisionist has not only failed to pay the outstanding amount to the Corporation but also sold the machines in question, which were the property of the Corporation, hence committed an offence of criminal breach of trust which is punishable under Section 406 I.P.C. 17. Hence, no interference is called for by this Court in the present revision in the orders passed by the Courts below. The revision lacks merits, it is liable to be dismissed and is, accordingly, dismissed. 18. However, regard to the submission advanced on the question of sentence, in my opinion as the incident has become old and stale pertaining to the year 1986 and to send the revisionist to jail now would be improper, hence ends of justice would suffice if rest of the sentence of six months R.I. of the revisionist is converted into a fine. Thus, it is hereby ordered that the rest of the sentence of the revisionist for imprisonment of six months R.I. is converted into a fine of Rs. 3000/- along with a fine of Rs. 5000/- which has already been imposed by the trial Court. The revisionist is required to pay in all Rs.8000/- towards fine within a period of two months from today. In default of payment, he shall be taken into custody and serve out for the sentence already ordered by the trial Court.