Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 514 (RAJ)

Jag Jeevan Ram Garg v. State of Rajasthan

2013-03-04

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - Instant criminal revision petition has been filed by the petitioner against the judgment dated 18.04.1995 passed by the Addl. Sessions Judge No. 1, Chittorgarh in Criminal Appeal No. 370/1985, by which, the appellate Court affirmed the judgment and order dated 18.05.1984 to the extent of conviction for offence under Section 409, I.P.C. passed by the Chief Judl. Magistrate, Chittorgarh in Criminal Case No. 165/1980 but reduced the substantive sentence of 2 years' rigorous imprisonment to 1 year's rigorous imprisonment while maintaining the fine of Rs. 1500/-, in default of payment of fine, to further undergo 6 months' rigorous imprisonment. 2. Learned counsel for the petitioner submits that an FIR was registered against the petitioner for offence under Section 409, I.P.C. at Police Station Kanera (District Chittorgarh) upon complaint filed by the Superintendent, Post Office, Chittorgarh, in which, it is alleged that the petitioner was posted as Branch Post Master at Kanera Post Office in the year 1975 and one Ram Swaroop Kabra who was having his CTD account with the said Post Office closed the account and submitted a withdrawal application on 07.01.1975 while putting his signature upon receipt for an amount of Rs. 1,342/- which he handed over to the accused petitioner. It is alleged that the petitioner withdrew the amount but did not pay the same to the complainant. Therefore, the complainant Ram Swaroop Kabra submitted complaint before the Superintendent, Post Office, Chittorgarh who, in turn, forwarded the same to the S.H.O. Police Station Kanera. After investigation, the police filed challan against the petitioner in the Court of M.J.M., Nimbahera from where the case was transferred to the Court of Chief Judl. Magistrate, Chittorgarh. 3. In the Court of Chief Judl. Magistrate, Chittorgarh, the trial was commenced and, after framing charge, prosecution adduced oral evidence of 5 witnesses and exhibited 51 documents in support of the prosecution case and document Ex.-D/1 was exhibited which is statement of complainant Ram Swaroop Kabra recorded under Section 161, Cr.P.C. After recording the evidence, the trial Court adjudicated the matter and convicted the accused-petitioner for offence under Section 409, I.P.C. vide judgment dated 18.05.1984 but acquitted him from the charge of commission of offence under Section 465, I.P.C. and passed sentence of 2 years' rigorous imprisonment along with fine of Rs. 1500/-, against the said judgment, an appeal was preferred by the petitioner and the learned appellate Court viz., Addl. Sessions Judge, Chittorgarh decided the appeal vide judgment dated 18.04.1995 and reduced the sentence from 2 years' rigorous imprisonment to 1 year's rigorous imprisonment while maintaining the fine. 4. In this revision petition, the petitioner is challenging the validity of both the judgments. 5. Learned counsel for the petitioner submits that conviction and sentence awarded to the petitioner is contrary to the evidence on record because the trial Court committed an error while holding that the petitioner is guilty for offence under Section 409, I.P.C. and the appellate Court also committed grave illegality on the face of record in affirming the conviction of the petitioner for offence under Section 409. I.P.C. 6. Learned counsel for the petitioner vehemently argued that it is admitted case of the prosecution that Ram Swaroop Kabra had signed the warrant of payment in lieu of receipt of amount of Rs. 1,342/-, therefore, the subsequent statement of complainant Ram Swaroop Kabra that he did not receive the amount is totally unworthy of any credential, therefore, his testimony as such was required to be examined properly but the learned trial Court relied upon the statement of Ram Swaroop Kabra and did not discredit his statement for the purpose of holding the petitioner guilty for commission of offence under Section 409, I.P.C., therefore, the judgment impugned deserves to be quashed. 7. Learned counsel for the petitioner further submits that the conviction of the petitioner for offence under Section 409, I.P.C. is totally illegal for the reason that no Government money has been misappropriated by the petitioner and even as per the highest case of the prosecution, the money in question has been released in the name of Ram Swaroop Kabra and petitioner after withdrawing the same allegedly did not hand over the amount to Ram Swaroop Kabra and as such the alleged offence at best travels up to Section 406, I.P.C. and not under Section 409, I.P.C. because neither it is alleged that the money was withdrawn by the petitioner nor the amount is alleged to have been entrusted to the petitioner, therefore, the finding of guilt arrived at by both the Courts below against the petitioner is wholly illegal and deserves to be quashed. 8. 8. Learned counsel for the petitioner vehemently argued that once the complainant admits that he put his signature upon the receipt, then, it cannot be said that he did not receive due payment of the CTD account on the ground that the petitioner did not hand over the money to him, therefore, the trial Court while holding the petitioner guilty under Section 409, I.P.C. committed a grave error. 9. Per contra, learned Public Prosecutor vehemently submits that the concurrent finding given by both the Courts below for commission of offence under Section 409, I.P.C. does not suffer from any illegality or infirmity; more so, the finding given by the trial Court with regard to commission of offence under Section 409, I.P.C. based upon reliable evidence produced by the prosecution to prove its case beyond doubt, therefore, this revision petition deserves to be dismissed. 10. Learned Public Prosecutor further submits that admittedly the accused-petitioner was holding the post of branch Post Master at Kanera Post Office and, during trial, he has not disputed the fact that pass-book along with withdrawal form was sent by him for approval of payment to the Head Post Office, Chittorgarh from where approval for sanction was issued on 12.02.1975 for Rs. 1,342/-. The said sanction was received at Kanera Post Office on 13.02.1975 and upon receipt Ex.-P/8 although it bears signature of Ramswaroop Kabra but, under the signature, 17.02.1975 date is mentioned to receive the amount but, on that date, in fact, no payment was made to Ramswaroop Kabra because he was not available at Kanera, therefore, Ramswaroop Kabra made a complaint in the Office of the Superintendent, Head Post Office, Chittorgarh who got registered an FIR at Police Station Kanera against the petitioner. 11. According to the learned Public Prosecutor, on 17.02.1975, the complainant was not available at Kanera because he was taking training at Gram Sevak Training Centre, Kota and to prove this fact the complainant produced certified copy of the attendance register Ex-P/19, Ex.-P/20 and Ex.-P/21, attendance register of the Lecturers working at the Gram Sevak Training Centre, Kota. Therefore, the petitioner's statement recorded under Section 313, C.P.C. becomes false that he has made payment of the amount to the complainant when he received the same from the Head Office. Therefore, the petitioner's statement recorded under Section 313, C.P.C. becomes false that he has made payment of the amount to the complainant when he received the same from the Head Office. Learned trial Court while taking into consideration the documentary evidence held that on 17.02.1975 the complainant was not available at Kanera, as such, there was no question of receiving payment of the amount of CTD by the complainant on that date. 12. The trial Court gave finding that the accused-petitioner misappropriated the said money because as per the procedure the claimant is required to put his signature upon the receipt when his case is forwarded to the Head Post Office, Chittorgarh by the accused who was working as Post Master at Kanera. It is also worthwhile to observe that in the statement of the accused recorded under Section 313, Cr.P.C. all the facts with regard to forwarding the matter for approval of payment to the head office are admitted; and, further, the accused accepted that the receipt was filled in by him and complainant Ram Swaroop, P.W.-2 was in hurry, therefore, after putting signature he left the office, at that time, payment was already made to him; meaning thereby, the accused petitioner is admitting the fact that all the columns in the receipt were filled in by him upon which the complainant put his signature; but, the complainant proved before the Court by leading cogent evidence that on 17.02.1975 he was not present at Kanera and, in fact, on 17.02.1975 he was at Gram Sevak Training Centre, Kota to pursue the training. 13. The learned Public Prosecutor submits that in the month of July 1975 some letters were written by the complainant to his father from Kota which are Ex.-P/14 and dated 02.07.1975, Ex.-P/15, in which, an information was given by him to the father to enquire from the Post Master whether the amount is received or not; meaning thereby, the trial Court as well as appellate Court gave clear finding on the basis of documentary evidence that although the receipt bears signature of the complainant but those signatures were obtained by the accused-petitioner on 12.02.1975 as per the prevailing procedure for payment of amount on maturity of CTD account. The accused petitioner forwarded the pass book to the head Post Office, Chittorgarh for approval of payment of the CTD account but on receiving approval no amount was paid to the complainant, therefore, there is no illegality in the judgment given by the trial Court which is subsequently upheld by the Addl. District Judge No. 1, Chittorgarh vide judgment dated 18.04.1995. In view of above, it is submitted that this revision petition may be dismissed. 14. After hearing learned counsel for the parties, I have scanned the entire evidence for the purpose of deciding the instant revision petition. 15. In this revision petition, the precise question is whether the payment of CTD account which matured for payment in the month of February 1975 was paid to the complainant Ramswaroop Kabra, P.W.-2 or not. Almost all the procedural part of the CTD A/c No. 368611 at Kanera Post Office is not in dispute. The amount of Rs. 1,342/- is not in dispute. The signature upon the receipt by the complainant Ramswaroop Kabra is also not in dispute. The only dispute is whether actual payment of the amount under the maturity claim of CTD A/c No. 368611 is is made to the account-holder complainant Ram Swaroop Kabra, P.W.-2 or not. 16. In this regard, first of all, it is very important to mention that complaint has been filed by the Superintendent Post Office, Chittorgarh at Police Station Kanera upon complaint made by Ramswaroop Kabra, account-holder of CTD A/c No. 368611. Complainant Ram Swaroop Kabra stated in his complaint that for disbursement of amount of the CTD A/c, on 07.01.1975, a withdrawal application was submitted by him and, along with the withdrawal application, a receipt for amount was also submitted by him as per procedure under his signature but no date was mentioned by him because actual payment was not received. 17. The day on which withdrawal application along with receipt was produced by the complainant the accused petitioner Jagjeevan Ram was posted as branch Post Master at Kanera Post Office. According to him, the the pass-book of the CTD A/c along with withdrawal form was sent to Nimbahera from where his withdrawal application was sent to the Head Post Office Chittorgarh for approval of payment upon maturity of CTD account. On 12.02.1975, the approval of payment of Rs. According to him, the the pass-book of the CTD A/c along with withdrawal form was sent to Nimbahera from where his withdrawal application was sent to the Head Post Office Chittorgarh for approval of payment upon maturity of CTD account. On 12.02.1975, the approval of payment of Rs. 1,342/- on account of CTD A/c of the complainant was made by the Head Office and said sanction was received at Kanera Post Office on 13.02.1975. Thereafter, as per record of the A/c, the payment was made on 17.02.1975. But, the complainant produced documentary evidence before the Court that on 17.02.1975 he was not even available at Kanera and, in fact, he was at Gram Sevak Training Centre, Kota and, to prove this fact, he produced cogent evidence before the trial Court. 18. I have perused Ex.-P/3 which is inland letter written by the complainant Ramswaroop Kabra to the Superintendent, Post Office, Chittorgarh, in which, it is stated by him that although his CTD pass-book has been sent for final withdrawal but, still he has not received the payment. Similarly, it appears from Ex.-P/4 that another letter was written by him to the Head Office in which he raised objection that his amount has been misappropriated by the Post Master of Kanera branch Post Office. Upon the said complaint, an inspection was made by the Inspector of Post Office, Pratapgarh Sub Division, which is on record as Annex.-P/5. Similarly, Ex.-P/12 is a letter written by the Principal, Gram Sevak Training Centre, Kota on 12.08.1975, in which, necessary information with regard to attendance of the complainant on 17.02.1975 at Gram Sevak Training Centre was explained. 19. I have perused the above letter Ex.-P/12 in which in clear terms it was certified that on 17.02.1975 Ram Swaroop Kabra was present at Kota. I have also perused two letters written by Ram Swaroop Kabra to his father on 22.01.1975 (Ex.-P/14) and 02.07.1975 (Ex.-P/15). In both the letters, it is written by him that he (his father) may enquire from the Post Office, Kanera whether payment of amount of the CTD A/c is received for disbursement or not and, if the Post Master is ready to pay the amount then he may receive the same. 20. In both the letters, it is written by him that he (his father) may enquire from the Post Office, Kanera whether payment of amount of the CTD A/c is received for disbursement or not and, if the Post Master is ready to pay the amount then he may receive the same. 20. In the opinion of this Court the complainant has established by reliable evidence that on 17.02.1975 he was not present at Kanera, therefore, it cannot be said that plea of the accused-petitioner to have paid the amount on 17.02.1975 to complainant Ramswaroop Kabra is trustworthy. It is true that complainant himself is accepting that he put signature before receiving the amount but, as per evidence and facts of the case, it is normal routine for payment of amount of CTD in the Post Office to file application for final withdrawal of amount after completion of the term period of the CTD A/c and matter was required to be sent to the Head Post Office for approval of payment. Therefore, it cannot be said that the petitioner-accused is not guilty of the offence. More so, there is evidence on record to prove the fact that payment of Rs. 1,342/- was not paid to the complainant by the accused-petitioner who was holding the post of Post Master at branch Post Office, Kanera on the relevant date. Therefore, the finding given by the trial Court and affirmed by the appellate Court does not suffer from any illegality or perversity. 21. The trial Court convicted the accused-petitioner for offence under Section 409, I.P.C. and passed sentence against him for rigorous imprisonment of two years along with fine of Rs. 1,500/- and, in default of payment of fine, to further undergo 6 months' rigorous imprisonment. Further, the trial Court passed an order that after depositing the amount of fine Rs. 1,400/- may be paid to the complainant as compensation vide judgment dated 18.05.1984 and appellate Court reduced the sentence from two years to one year while maintaining the other part of the order. 22. But, upon consideration, it is revealed that the incident is of the year 1975 and incident took place 38 years ago, therefore, at this stage, it is not proper to send the accused-petitioner behind the bars because sword of criminal case remained hanging over his head for last 38 years. 22. But, upon consideration, it is revealed that the incident is of the year 1975 and incident took place 38 years ago, therefore, at this stage, it is not proper to send the accused-petitioner behind the bars because sword of criminal case remained hanging over his head for last 38 years. The accused-petitioner was arrested initially on 19.12.1975 and he remained in custody up to 23.12.1975 during trial. Thereafter, he was sent to judicial custody after the judgment of Addl. District & Sessions Judge in appeal on 18.04.1995; but, his sentence was suspended on 03.07.1995 and he was released on bail on 06.07.1995; meaning thereby, the accused-petitioner remained in custody for near about 3 months, therefore, in view of the fact that now, after 38 years of the incident, it is not proper to send the accused-petitioner behind the bars. 23. In view of the above discussion, while maintaining the conviction of the accused-petitioner for offence under Section 409, I.P.C. this revision petition is partly allowed and the substantive punishment imposed by the appellate Court below against the accused-petitioner is hereby reduced from one year to the term already undergone by him. However, the fine of Rs. 1500/- is enhanced to Rs. 3000/- which shall be paid to the complainant. The accused-petitioner is on bail. His bail bonds are discharged. He shall deposit the amount of fine, as ordered by this Court, within a period of two months from the date of receiving certified copy of this order.Revision disposed of. *******