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2012 DIGILAW 964 (RAJ)

Vijay Kumar v. Stat of Rajasthan

2012-04-16

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—These revision petitions have been filed against the order dated 2.9.1999 whereby the present petitioner has been convicted for the offence under Sections 409 and 477A and has been sentenced for two years' rigorous imprisonment and fine of Rs. 500/- in each criminal cases and the appeals preferred were dismissed. Hence, these revision petitions. 2. The short facts of the case are that on 3.9.1984, an FIR Ex. P/1 was lodged at PS Ramgarh by Shri Jai Prakash Sharma, Development Officer, Postal Departmental, Sikar stating therein that Vijay Kumar Sharma, who was posted as Postal Assistant was transferred to Ramgarh Shekhawati Post Office and he handed over the charge to Shri Ganpat Ram Morya on 26.5.1984. Thereafter, he absconded. The accused-petitioner remained posted at Ramgarh Market Post Officer from 9.6.1983 to 25.5.1984 and during that period he misappropriated the Government money to the tune of Rs. 26,605.38p. After a lapse of time, amount of Rs. 1,668.28p. Were deposited. A detailed report of misappropriation of money was also classified in three heads, as narrated in the FIR, which are as under:- A. Following cash deposits given by the depositors in saving and recurring accounts which were entered by the petitioner in the pass books of account holders without entering in the accounts of post office:- S. No. A/c No. Name of Depositor Date of Transac-tions Amount 1. 98100 Ramgopal Sharma S/o Moli Ram Ramgarh Shekhawati 6.6.84 500.00 2. 98115 Bhagwati Prasad S/o Kishan Maheshwari, Ramgarh Shekha 18.6.84 69.60 3. 98391 Nayantara D/o Balkrishan Ramgarh Shekhawati 23.6.84 200.00 4. 98443 Madhuri D/o Gopikrishan Ramgarh Shekhawati 18.6.84 300.00 5. 98497 Girdharilal S/o Rameshwar Lal Hardayalpura 5.4.84 30.5.84 521.00 500.00 6. 98528 Mahaveer Prasad S/o Ramkumar Haritwal, Ramgarh Shekhawati 13.6.84 110.00 7. 98534 Om Prakash S/o Birdhi Chand Arya, Ramgarh 2.5.84 800.00 8. 98539 Gopiram Arya S/o Dhani Rana Sar, Post Officer, Jaitsar 5.5.84 10.00 9. 98590 Guganram S/o Ruga Ram Ramgarh Shekhawati 5.5.84 50.00 10. 98600 Sita Ram W/o Mahaveer Prasad Ramgarh Shekhawati 12.5.84 40.00 Recurring Deposits 11. 21136 Minor Prashant Kumar S/o Smt. Usha Sharma, Ramgarh Shekhawati 9.5.84 40.00 12. 21138 Minor Nathi S/o Mahaveer Prasad Ramgarh Shekhawati 25.5.84 5.6.84 218.00 109.00 13. 21152 Usha Sharma, Teacher Ramgarh Shekhawati 9.5.84 40.00 14. 21167 Minor Mahendra Kumar S/o Sita Hariwal Ramgarh 12.5.84 10.00 15. 21184 Ramsingh S/o Ganga Dan Ramgarh Shekhawati 5.3.84 51.50 16. 21136 Minor Prashant Kumar S/o Smt. Usha Sharma, Ramgarh Shekhawati 9.5.84 40.00 12. 21138 Minor Nathi S/o Mahaveer Prasad Ramgarh Shekhawati 25.5.84 5.6.84 218.00 109.00 13. 21152 Usha Sharma, Teacher Ramgarh Shekhawati 9.5.84 40.00 14. 21167 Minor Mahendra Kumar S/o Sita Hariwal Ramgarh 12.5.84 10.00 15. 21184 Ramsingh S/o Ganga Dan Ramgarh Shekhawati 5.3.84 51.50 16. 21256 Damodar Prasad Pujari Ramgarh Shekhawati 2.4.84 91.00 17. 21261 Raghunath Prasad S/o Keshad Dev Ramgarh Shekhawati 2.4.84 61.20 18. 21276 Sita, Headmistress Ramgarh Shekhawati 12.5.84 50.00 3892.10 B. The petitioner has withdrawn the following amounts by forged means from saving accounts, recurring accounts and ten years' fix deposit amounts:- S. No. A/c No. Name of Depositor Date of Transac-tions Amount 1. 98203 Janardan Nagwan S/o Satyanaryan Ramgarh Shekhawti 31.3.84 2.4.84 950.00 900.00 2. 98220 Chatruran S/o Jawahar Singh Rupansar P.O. Ramgarh Shekhawati 31.3.84 500.00 3. 98231 Ku. Bharti Sharma D/o Mannlal Sharma, Ramgarh Shekhawati 13.2.84 900.00 4. 98374 Premlata D/o Shankerlal Sewada Ramgarh Shekhawati 28.5.84 900.00 5. 98391 Nayantara D/o Balkrishan Ramgarh Shekhawati 22.6.84 600.00 6. 98399 Minor Ku. Tinu D/o Kailash Ramgarh Shekhawati 15.6.84 700.00 7. 98423 Dungarmal S/o Bhagwati Prasad Mundra, Ramgarh Shekhawati 22.6.84 400.00 8. 98464 Smt. Usha Sharma Headmistress Ramgarh Shekhawati 3.4.84 4.4.84 900.00 900.00 9. 98466 Minor Umakant S/o Gopikrishan Mundra Ramgarh Shekhawati 22.6.84 400.00 10. 98479 Smt. Usha Sharma Ramgarh Shekhawati 28.5.84 1000.00 11. 98483 Ramesh Kumar S/o Tulcharam Morya Ramgarh Shekhawati 6.6.84 400.00 12. 984977 Girdharilal S/o Rameshwar Saini Ramgarh Shekhawati 4.4.84 28.5.84 700.00 295.00 13. 98534 Om Prakash S/o Vradhichand Morya Ramgarh Shekhawati 5.5.84 450.00 Recurring Deposit 14. 21137 Smt. Neelam Seth Headmistress Ramgarh Shekhawati 22.6.84 500.00 15. 21156 Smt. Surgyani Devi W/o Ganga Ram, Ramgarh Shekhawati 22.6.84 550.00 16. 21200 Antar Singh S/o Swaroopchand Ramgarh Shekhawati 22.6.84 725.00 17. 21203 Chhitarmal Gangwal Govt. College, Shahpura, Jaipur 22.6.84 725.00 10 Year's Fix Deposits 18. 119012 Vidyadhar Govt. College Ramgarh Shekhawati 21.5.84 3000.00 19. 119019 Hanumansingh Govt. College Ramgarh Shekhawati 28.4.84 3000.00 20. 119029 Devdutt Kulhari Govt. College Ramgarh 28.5.84 3550.00 21. 119021 " 28.5.84 1100.00 21045 C. The petitioner has received certain amounts in following heads but entered thee same into the post office accounts subsequently instead of entering it on the date of receipt of amount:- S. No. Details of Heads Date of Receipt of amount Amount Date of entry in record. 1. Shri G.D. Ruiya, Govt. 119021 " 28.5.84 1100.00 21045 C. The petitioner has received certain amounts in following heads but entered thee same into the post office accounts subsequently instead of entering it on the date of receipt of amount:- S. No. Details of Heads Date of Receipt of amount Amount Date of entry in record. 1. Shri G.D. Ruiya, Govt. Primary School, Ramgarh, Manager, Sanvarmal, Schedule May 84 26.5.84 200.00 31.5.84 2. H.R. Ruiya, Secondary School, Ramgarh, Jugal 18.3.84 440.00 22.6.84 3. Govind Prasad S/o Mukram Moyra, Ramgarh Shekhawati, LIC Policy No. 50955436 Ramgarh Bazar Life Insurance Receipt No. 555 Book 149082 30.4.94 1028.28 22.6.84 1668.28 3. After investigation, the police filed 16 charge-sheets, taking three or less offences in each charge-sheet committed within a period of one year for the offences under Section 409 and 477A IPC. The present petitioner was charged for the offences under Sections 409 and 477 IPC in all 16 cases. The present petitioner denied the charges and claimed to be tried. During the trial, the learned court below consolidated three criminal cases committed within a period of one year and has proceeded trial by consolidating the cases in six cases. The prosecution examined as many as 10 witnesses. The accused petitioner was examined under Section 313 Cr.P.C. After hearing the present petitioner, the learned trial court convicted and sentenced the petitioner as above and appeals have been dismissed. Hence, these revision petitions. 4. Heard learned counsel for the parties and perused the record of the case. 5. The first contention of the present petitioner is that looking to the provisions of Section 219 Cr.P.C., consolidation of three cases is unwarranted. Section 219 Cr.P.C. reads as under:- "219.-Three offences of same kind within year may be charged together:- (1) When a person is accused of more than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and trial at one trial for, any number of them not exceeding three. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local law: Provided that, for the purpose of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860), shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any Section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence." 6. The Investigating Officer has already consolidated the three offences and again clubbing the three cases into one, caused serious prejudice to the present petitioner and the whole trial has vitiated. 7. The contention of the present petitioner is that every transaction, which has been narrated in the FIR, is a distinct offence and the Investigating Officer has already consolidated three offences, which have been further consolidated by the trial court. 8. His further contention is that a valuable right has been infringed in view of the Principles of Natural Justice which caused prejudice to the present petitioner and the prejudice is inherent. There is no need to establish the prejudice and reliance has been placed on the judgment delivered in the case of Jayendra Vishnu Thakur vs. State of Maharashtra & Anr. (JT 2009(8) SC 5), wherein evidence was recorded in absence of the accused and hence it was held that infringement of such valuable right itself causes prejudice. 9. But, here, in the present case, there is no such infringement of any basic Principle of Natural Justice has shown. The present petitioner has been charged for the offences and narration of the transactions have also been made in the charges. The present petitioner was fully aware of the contents of the offences for which he was charged. It cannot be inferred that any of the Principles of Natural Justice have been violated. He had been given right of defence and the learned Public Prosecutor has placed reliance on Sections 464 and 465 Cr.P.C. Sections 464 and 465 Cr.P.C. read as under:- "464. It cannot be inferred that any of the Principles of Natural Justice have been violated. He had been given right of defence and the learned Public Prosecutor has placed reliance on Sections 464 and 465 Cr.P.C. Sections 464 and 465 Cr.P.C. read as under:- "464. Effect of omission to frame, or absence of, or error in charge.-(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it things fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. 465. Finding or sentence when reversible by reason of error, omission or irregularity.-(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission of irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings." 10. A bare perusal of the above provisions go to show that if these is any error, omission or irregularity in the framing of charge or during the trial, it will ipso facto would not affect the finding of the competent court. To attack a finding, it is necessary that a failure of justice has in fact been occasioned thereby should be shown. 11. The contention of the present petitioner is that prejudice is inherent, is unacceptable. The present petitioner is fully aware of the charges leveled against him. He has been given every chance of defence. Nothing is on record to suggest that he, in any way, has been prejudiced by clubbing of the cases. His right of defence has not been frustrated and hence looking to the provisions of Sections 464 and 465 Cr.P.C., the contention of the present petitioner that he has been affected prejudicially, seems to be groundless and unacceptable. 12. To the utter surprise of this court, record of the case goes to show that on 30.3.1996, the present petitioner himself has moved an application before the trial court for consolidation of all the 16 cases and on the request of the present petitioner, the trial court has consolidated the cases as indicated earlier. Now, this argument does not lie in his mouth and this view has been strengthened by the law laid down in the judgment delivered in the case of Manoharlal Lohe vs. State of Madhya Pradesh (1981 Cr.L.J. 1563), wherein it has been held as under:- "Where the accused himself wants a joint trial...the Court may allow the same notwithstanding the strict rules in other provisions. This is because the rules in this regard are designed for the benefit of the accused and if they work to his detriment, he should get relief. The conditions for application of this Proviso are- (a) The accused person must apply in writing for joint trial. This is because the rules in this regard are designed for the benefit of the accused and if they work to his detriment, he should get relief. The conditions for application of this Proviso are- (a) The accused person must apply in writing for joint trial. (b) The Magistrate must himself be satisfied that the accused will not be prejudiced by the joint trial of all or some of the charges framed against him. He will then allow joint trial to that extent." 13. The Hon'ble Apex Court, in the judgment delivered in the case of Sushil Kumar Gupta vs. Joy Shankar Bhattacharjee ( AIR 1971 SC 1543 ), has held as under:- "In the last submission the counsel made a grievance against the joint of several accused persons on several items of embezzlement. According to him there was a misjoinder of charges which vitiated the trial. In our opinion, charges under Section 408 and Section 477-A, Indian Penal Code, could, in the circumstances of this case, be tried together and the joint trial of all the accused was proper and lawful. Our attention was not drawn to any provision of law against the legality of the joint trial. In any event no failure of justice in consequence of the joinder of charges was pointed out with the result that the question of misjoinder of charges must be held to be little consequence at the stage of appeal." 14. The next contention of the present petitioner is that Scheme of Sections 408 and 409 IPC goes to show that distinct offences have been provided respectively for the clerks or servants and for the bankers and the present petitioner has been charged for the offence under Section 409 IPC as he is a banker, but at the same time, he has been convicted for the offence under Section 477A IPC, where bankers have not been included in the description of offence under Section 477A IPC and conviction under Sections 477A and 409 IPC cannot go hand to hand. 15. The contention of the learned Public Prosecutor is that this submission is misconceived and the present petitioner has been charged for the offence under Section 409 IPC as he was the public servant as he was the Postal Assistant in Ramgarh Market Post Office at the relevant time. 16. 15. The contention of the learned Public Prosecutor is that this submission is misconceived and the present petitioner has been charged for the offence under Section 409 IPC as he was the public servant as he was the Postal Assistant in Ramgarh Market Post Office at the relevant time. 16. The present petitioner has been charged for the offence under Section 409 IPC as he was public servant at the relevant time being a Potal Assistant and the contention of the present petitioner that he was a banker is misplaced. The present petitioner has not been charged as a banker and law relied by the present petitioner delivered in the judgment of Gopesh Chandra Pal & Anr. vs. Nirmal Kumar Das Gupta (AIR 1950 Calcutta 57), wherein it has been held that the persons working in a bank are not bankers. Looking at the above, this contention of the present petitioner is not acceptable. 17. The other contention of the present petitioner is that no separate charge of forgery has been alleged against him and in absence of charge of forgery, conviction under Section 477A IPC cannot be sustained. Section 477A IPC reads as under:- "477A. Falsification of accounts.- Whoever, being a clerk, officer of servant, or employed or acting in the capacity of clerk, officer or servant, willfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or willfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in, any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation.-It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed." 18. Explanation.-It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed." 18. A bare perusal of the above provision goes to show that if a servant (including public servant) in that capacity, with intend to defraud or falsify any accounts makes any false entry, he will be guilty for the above charge. The facts, which are found to be proved against the present petitioner by both the courts below, are that the present petitioner entered the deposits in the pass book of relevant depositors but had not entered the amount in the accounts books of the post office. It clearly shows that the present petitioner has not done the entries, which he ought to have made. This is falsification of accounts, whether by act or by omission. It was further proved before the courts below that the present petitioner withdrawn the amount by forged means. He has also falsified the account books and further he has not entered some amounts on the date of receipt. Thus, he had falsified the accounts by acts and omissions both ways and the present petitioner has rightly been held guilty for the offence under Section 477 A IPC. 19. The next contention of the present petitioner is that offence against the present petitioner is of fabricating the documents but no hand-writing analysis report has been placed on record. 20. The contention of the learned Public Prosecutor is that the accused-petitioner himself has refused to give hand writing and hence he cannot object that expert analysis report has not been placed on record. 21. Learned counsel for the petitioner and the learned Public Prosecutor both have drawn my attention towards the application Ex.P/5, which was sent to the present petitioner to get himself present before the SDM on a specific date and time to give samples of handwriting but the present petitioner denied and did not appear on that day and he has claimed that he will give his hand-writing before the Court. 22. 22. The contention of the present petitioner is that in spite of his refusal, the prosecution should have filed an application under Section 73 of the Evidence Act before the trial court to get his hand writing and signatures taken and the same should have been analysed by the expert. An important evidence is missing to support the prosecution case and benefit should be extended to the present petition. 23. Counsel for the petitioner has also placed reliance on Section 73 of the Evidence Act, which gives a power to the court to direct any person present in the court to write any word or figure for the purpose to enable the court to compare the word or figure so written with any words or figure alleged to have been written by such person. 24. There is no doubt about it that under Section 73 of the Evidence Act, a special power has been given to the concerned court for comparison of the signature, writing with other admitted or proved document but by virtue of Section 73 of the Evidence Act, the prosecution has not been absolved from the liability of proving its case regarding forgery of the signatures. The prosecution has amply proved the fact that the present petitioner falsified the account books. He was posted as Postal Assistant at the relevant time at Ramgarh Market Post Office. He was only the person incharge of that Branch and witnesses have also stated that he was incharge of the whole affairs to maintain accounts in that branch, which clearly shows that the present petitioner has made all the entries and also omitted to make the entries and when prosecution has proved those facts beyond reasonable doubt, there was no need for the trial court to invoke its power under Section 3 of the Evidence Act. The present petition himself has refused to give hand-writing. Ex.P/5 has clearly shown that the accused has been given an option to be present before the SDM, which he did not avail. Hence, he could not complaint of the fact that the hand-writing analysis report has not been placed on record. 25. The present petition himself has refused to give hand-writing. Ex.P/5 has clearly shown that the accused has been given an option to be present before the SDM, which he did not avail. Hence, he could not complaint of the fact that the hand-writing analysis report has not been placed on record. 25. The further contention of the present petitioner is that the allegation against him is that money deposited in the bank has been misappropriated and relationship between the bank and the customer is of creditor and debtor and there is no element of trust and when there is no element of trust between the bankers and the creditor, the whole base of the prosecution, which rests on the element of trust, demolishes and he has placed reliance on the judgments delivered in the cases of R.P. Sablok vs. Smt. Kaushalya Devi (1982 Cr.L.J. 1342) Santosh Kumar & Order vs. The King (AIR 1952 Calcutta 193) and Gopesh Chandra Pal & Anr. vs. Nirmal Kumar Das Gupta (AIR 1950 Calcutta 57). 26. The law, which has been cited by the present petitioner in Gopesh Chandra's case (supra) clearly states that the persons working in the banks are not bankers. Hence, the very basis of the submission advanced by the present petitioner goes away. The facts of the case also go to show that the present petitioner was working as public servant. 27. The further contention of the present petitioner is that looking to the facts of the case, the present petitioner should be convicted for the offence under Section 381 IPC, which deals with the theft by a servant of property in possession of master. But, here, in the present case, the property was not in the possession of the master. The money was entrusted to the present petitioner and he misappropriated the same. Hence, this contention of the present petitioner that he should have been convicted under Section 381 IPC has no legs. 28. The other contention of the present petitioner is that according to the FIR, the present petitioner was remained in posted in Ramgarh Market Post Office till 25.5.1984, whereas he has been charged for the transactions up to June, 1984. Hence, this contention of the present petitioner that he should have been convicted under Section 381 IPC has no legs. 28. The other contention of the present petitioner is that according to the FIR, the present petitioner was remained in posted in Ramgarh Market Post Office till 25.5.1984, whereas he has been charged for the transactions up to June, 1984. The court has given a finding without properly considering the evidence on record and it cannot be termed as a finding of fact and he has placed reliance on the judgment delivered in the case of Daungarshi Madanlal Zunzunwala vs. M/s. Deviprasad Omprakash Bajoria & Anr. (1985 Cr.L.J. 1943). 29. The contention of the learned Public Prosecutor is that in revision proceedings, finding of fact cannot be entertained. The contention of the present petitioner is that looking to the above legal position, this finding cannot be termed as finding of fact. But the impugned judgment goes to show that it is true that in the FIR, posting period of the petitioner has been shown as 9.6.1983 to 25.5.1984 but PW. 7, Ganpat Morya, to whom the charge was given by the present petitioner on transfer to Ramgarh Shekhawati Post Office, has specifically stated that he took charge from the present petitioner on 26.6.1984, which fact has been refuted by any evidence and the present petitioner has rightly been charged and convicted. 30. The next contention of the present petitioner is that he has been charged for the transactions when he was not posted at the relevant post office and by intermingling those charges, he has been prejudicially affected. 31. But, as stated above, the present petitioner was working in the rele-vant branch till 26.6.1984. Hence, there is no misjoinder of charges or illegal interminging of charges, which caused any prejudice to the present petitioner. 32. The present petitioner was a public servant at the relevant time. He was entrusted with the money of the depositors. He has falsified the account books to defraud the depositors and that account books were in possession of the present petitioner. He acted frauduleentlyand misappropriated the money. Thus, the petitioner has rightly been convicted for the offences under Sections 409 and 477 A IPC. 33. The last contention of the present petitionr is that he has already deposited the amount, which has been alleged to be misappropriated by him. He acted frauduleentlyand misappropriated the money. Thus, the petitioner has rightly been convicted for the offences under Sections 409 and 477 A IPC. 33. The last contention of the present petitionr is that he has already deposited the amount, which has been alleged to be misappropriated by him. The matter is of 1983-84 and having regard to the nature of the offence and circumstances, the present petitioner should be dealt with under Section 4 of the Probation of Offenders Act. 34. The learned Public Prosecutor has left the matter with the discretion of the court. 35. Bearing in mind that corruption has increased in last decade, it is hardly reasonable to turn blind eye to it. Therefore, while considering the quantum of sentence to be imposed for the offences like this, one of the prime consideration should be deterrence. One of the most important way of keeping the offenders under mental vigil is to maintain deterrence. An latitude shown to them in this field would tempt and to make action frivolous. Hence, the courts should not treat the nature of the offence involving forgery in public documents and misappropriation of public money as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. 36. Looking at the above, there is no force in these petitions and the same are hereby dismissed. The petitioner is on bail. He is directed to surrender before the trial court to serve out rest of the sentence.