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2012 DIGILAW 909 (GAU)

Anil Deka v. State of Assam

2012-07-31

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the judgment and order, dated 07.08.2003, passed, in Criminal Appeal No. 11 of 2003, by the learned Sessions Judge, Barpeta, dismissing the appeal and upholding thereby the judgment and order, dated 28.05.2003, passed, in GR Case No. 1988 of 1991, by the learned Chief Judicial Magistrate, Barpeta, convicting the accused petitioner under Section 408 IPC and sentencing him to undergo simple imprisonment for a period of 1 (one) year with fine of Rs.1,000/-. The case of the prosecution, as unfolded at the trial, may, in brief, be set out thus: (i) PW1, as Secretary of Sathebari Asom Samabai Kaah Sangh, filed a complaint, in the Court of the Chief Judicial Magistrate, Barpeta, alleging to the effect, inter alia, that accused, Anil Deka, who had worked as Manager between 27.05.1991 to 20.06.1991 of the said Sangh, was incharge of sale and purchase of Kaah (bell-metal) and was also incharge of receiving the amounts, which were obtained on sale of Kaah (bell-metal), but accused, Anil Deka, failed to account for shortage of 466.070 gms of Kaah (bell-metal), worth Rs.87,725.15 and had, thus, misappropriated the said amount and, in this regard, a preliminary inquiry had been conducted and, on the basis of the report of the preliminary inquiry, a meeting of the Sangh (i.e., Association)was held on 25.08.1991 and, as per the decision arrived at the said meeting, the complainant, being Secretary of the said Sangh, had been asked to lodge the complaint. (ii) The said complaint was sent to Barpeta Police Station. Based on the said complaint and treating the same as First Information Report, Barpeta Police Station Case No. 743 of 1991, under Section 408 IPC, was registered against the accused. During investigation, some records of the said association were seized by police and, on completion of investigation, charge-sheet was laid, under Section 408 IPC, against accused Anil Deka. 2. At the trial, when a charge, under Section 408 IPC, was framed against the said accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether five witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused-petitioner denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. 3. In support of their case, prosecution examined altogether five witnesses. The accused was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused-petitioner denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found accused Anil Deka guilty of the offence charged with, learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which was passed against him, Anil Deka, as convicted person, preferred an appeal. Since the appeal has also dismissed, the convicted person had filed this revision. 5. At the time of hearing of this revision, it transpires that accused petitioner, Anil Deka, is no longer alive. Two questions, at this stage, arise whether this revision has abated and since none has come forward to be substituted, in place of the deceased accused-petitioner, whether this revision shall be dismissed? 6. It may be noted, with regard to the questions posed above, that unlike specific provisions, which exist in the Code of Criminal Procedure as regards abatement of appeal, there is no specific provision with regard to abatement of revision. 7. The Code of Criminal Procedure gives a right of appeal to a convicted person against both, his conviction as well as his sentence. Section 384 clearly lays does that an appeal, preferred by a convicted person, shall abate if he dies. There is no provision for substitution if the person convicted was sentenced to imprisonment; but if he was sentenced to pay fine, with or without imprisonment, the appeal, according to Section 384, shall not abate, on the death of the appellant, so far as the sentence of fine is concerned. The reason is that fine can be realized from the estate of the deceased. 8. As the revisional jurisdiction, exercisable by the High Court, is supervisory in nature, it is for the High Court to decide whether the High Court would continue with a revision and decide the same, on merit, irrespective of the fact as to whether the person, who applied for revision, is or is not alive, or should the High Court dismiss the revision. This apart, revisional jurisdiction can be exercised suo moto. This apart, revisional jurisdiction can be exercised suo moto. Hence, there is no legal impediment, when the High Court thinks it proper to continue with a revision and choose to decide the same on merit provided that the High Court is of the view that the exercise of revisional jurisdiction is essential. One may refer, in this regard, to the case of State of Kerala Vs. Narayani Amma Kamala Devi & Ors., ( AIR 1962 SC 1530 ). In short, thus, in an appropriate case, it is open for the High Court to exercise jurisdiction even after a convicted person dies. 9. On the ground that the accused was a Government employee, it would not permit the legal representatives of such an accused to be substituted, in an appeal, if the appeal is against an order of conviction and sentence of imprisonment and if no payment of fine is involved. This has been made clear in the case of Bondada Gajapathi Rao Vs. State of A.P ( AIR 1964 SC 1645 ). (See also Hari Prasad Chhapolia (Dead) Vs. Union of India, reported in 2008 CRI L.J. 3198). 10. In the case at hand, since the convicted person was not only sentenced to imprisonment, but was also fastened with the liability to make payment of fine, this Court deemed it appropriate to hear the revision and decide the revision on merit. [See Pranab Kumar Mitra Vs. State of West Bengal & Am. ( AIR 1959 SC 144 )] 11. I have heard Mr. BC Pathak, learn counsel, appearing on behalf of the accused-appellant, and Mr. K Munir, learned Additional Public Prosecutor, for the opposite party. 12. Coming to the merit of this revision, it needs to be noted that there is no dispute that accused Anil Deka had worked as Manager of the said association from 27.05.1991 to 20.06.1991. There is also no dispute that the accused-petitioner took, on 27.05.1991, the charge of the office of the Secretary from the outgoing Manager, Sri Baikuntha Choudhury, and, in this regard, accused Sri Anil Deka verified the stock register and, upon verification of the stock and on having found everything in order, he took over the charge of the Manager of the said association; but when he handed over the charge, the association found, on verification of stock, shortage of 466.070 gms of Kaah (bell-metal), which amounted to Rs.87,725.15 paisa. 13. 13. Considering the fact that during the period, in question, accused Anil Deka was the Manager and person responsible for sale and purchase of Kaah (bell-metal) and for receiving the amounts, which were obtained by way of sale of Kaah (bell-metal), it was the duty of accused Anil Deka to account for the shortage of the Kaah (bell-metal), which he completely failed to do. This apart, there is a statement, given, in writing, by accused, Anil Deka, owning up the responsibility as regards the shortage of Kaah (bellmetal) and also admitting his guilt that he had sold the Kaah (bell-metal) by taking the same to the market and cleared his debts. This statement, which is nothing, but an extra-judicial confession, was proved as Ext.3, where the signature of accused Anil Deka was proved as Ext. 3(1) wherein he stated that he had sold the Kaah (bell-metal) by taking the same to the market and cleared his debts. 14. Though the accused-petitioner, at the trial, denied that the said extra judicial confession was not voluntarily made, nothing is seen to have been elicited from the cross-examination of any of the witnesses to show that the said extra-judicial confession was involuntary in nature. 15. Thus, there were sufficient incriminating circumstances against the accused-petitioner proving that he had failed to account for the shortage of Kaah (bell-metal) and, secondly, that his extra-judicial confession was voluntary and true. 16. In the face of the evidence on record, the learned trial Court was wholly justified in convicting the accused-petitioner, Anil Deka, under Section 408 IPC and the learned appellate Court committed no error in upholding the conviction of the accused-petitioner and in dismissing the appeal. 17. Because of what have been discussed and pointed out above, I do not find that the conviction of the accused-petitioner suffers from any infirmity, legal or factual. 18. In the facts and circumstances of the case, it is, however, clear that since the accused-petitioner had been sentenced to suffer simple imprisonment for one year, the fine of Rs.1,000/-, which he has been sentenced to pay, was not essential and, hence, while the sentence of imprisonment is maintained, the sentence of fine, imposed on the accused petitioner, is hereby set aside. 19. With the above modification in the sentence, this revision stands disposed of. Send back the LCR.