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2014 DIGILAW 898 (ALL)

State of U. P. v. Parmatma Saran Mathur

2014-03-20

ANANT KUMAR, RAKESH TIWARI

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JUDGMENT Anant Kumar, J.: - This government appeal under Section 377 Cr.P.C. has been filed on behalf of the State of U.P. for enhancement of sentence with regard to the judgment and order dated 9.8.1983 passed by Sri R.P. Verma, Munsif Magistrate II, Varanasi in Criminal Case No. 416 of 1981-State Vs. Parmatma Saran Mathur, under Section 409 I.P.C., Police Station Saraikhwaja, Jaunpur whereby the accused has been imposed with a fine of Rs. 2,500/- and convicted with a token sentence till rising of the court. 2. The F.I.R. in this matter was lodged in Police Station Saraikhwaja, District Jaunpur on 11.4.1979 at 15.05 hours by one Sri Kamta Prasad Singh, Secretary, District Cane Society Mehrawa, District Jaunpur wherein it was mentioned that Parmatma Saran Mathur, Cane Supervisor and the then Secretary had issued a cheque No. BA 24/395145 dated 20.3.1970 for Rs. 15,000/- at State Bank Shahganj but in the cash book and on the counterfoil of the cheque book, an amount of Rs. 10,000/- was mentioned. By this way, an amount of Rs.5,000/- of the Society was misappropriated, regarding which a departmental inquiry was initiated in the year 1976-77 which has been confirmed by balance sheet. It was further mentioned that Parmatma Saran Mathur had shown in the daily sale register of urea fertilizer that on 16.2.1971 he was having a balance of 2619 bags of urea but at the time of handing over charge to Sri Ram Shakal Singh Supervisor, only 2490 bags were given in charge. By this way, he had misappropriated a value of 129 bags of urea and at the rate of Rs.47.95/- per bag, total amount comes to Rs.6,185.55/-. It was requested that for total misappropriated money of Rs.11,185.55/- action should be taken. 3. On the basis of the written complaint, case was registered at Crime No. 130 of 1979. The matter was investigated and charge sheet was filed in the court. 4. On behalf of prosecution, five witnesses were produced wherein PW-1 Sri Mohan Lal, Manager of the State Bank of India, Ghazipur, PW-2 Ayodhya Prasad Shukla J.M.S.I. State Bank of India, Azamgarh, PW-3 Chandrabhan Rai, Co-operative Auditor, Deoria, PW-4 P.N. Rai, S.I., S.I.B., Varanasi and PW-5 Kamla Prasad Singh, Cane Development Inspector (wrongly mentioned as PW-4) were examined. 5. 4. On behalf of prosecution, five witnesses were produced wherein PW-1 Sri Mohan Lal, Manager of the State Bank of India, Ghazipur, PW-2 Ayodhya Prasad Shukla J.M.S.I. State Bank of India, Azamgarh, PW-3 Chandrabhan Rai, Co-operative Auditor, Deoria, PW-4 P.N. Rai, S.I., S.I.B., Varanasi and PW-5 Kamla Prasad Singh, Cane Development Inspector (wrongly mentioned as PW-4) were examined. 5. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he had admitted having encashed the said cheque for Rs.15,000/- but had mentioned only Rs. 10,000/- in the cash book and on the counterfoil of the cheque book and has stated that by mistake he had done like this. 6. After considering the oral and documentary evidence on record as well as facts and circumstances of the case, the learned Magistrate has convicted the accused with a token sentence till rising of the court and with a fine of Rs.2,500/-. Aggrieved by this order, the State of U.P. has filed this appeal under Section 377 Cr.P.C. 7. We have heard the learned A.G.A. on behalf of the State and perused the record. 8. It is mainly argued on behalf of the State that the learned trial court has taken a very lenient view in the matter although Section 409 I.P.C. provides for a punishment up to the imprisonment for life or for imprisonment which may extent up to ten years and also for fine. It is further argued that the case against the accused was proved to be hilt and fine and sentence awarded was inadequate. It is also argued that since the accused himself had admitted in his statement under Section 313 Cr.P.C. that he had committed a mistake, the judgment and order of the trial court is against the provisions of law. 9. We have considered the submissions raised by learned A.G.A. on behalf of the State. From the totality of the circumstances, it is apparent that the statement of the accused was recorded under Section 313 Cr.P.C. in which a specific question was put to him by the court that on 20.3.1970 a Cheque No. BA 24/395145 for Rs.15,000/- was issued by him but on the counterfoil of the cheque book and in the cash book only Rs.10,000/- was mentioned and thereby he had misappropriated a sum of Rs.5,000/-. The accused has specifically stated that he had committed mistake for which he wants a pardon. The accused has specifically stated that he had committed mistake for which he wants a pardon. A bare perusal of Section 409 I.P.C. shows that for criminal breach of trust a punishment of imprisonment for life or with imprisonment of either description for a term which may extent to ten years and also a fine is provided but the learned trial court in stead of sentencing the accused for any term has simply imposed token sentence till rising of the court. In this matter misappropriation of Rs.5,000/- was proved but only fine of Rs.2,500/- was imposed which is not even equivalent to the amount misappropriated. There was nothing on record that the said amount misappropriated by the accused was ever deposited by him. So this Court is of the view that the way in which this case was concluded was not proper. Penalty for an offence is provided so that the offender is punished for the wrong done by him as well as it becomes a warning to others that the hands of law are too long to catch any offender and they should be restrained from their activities so as not to commit an offence. However, with the development of criminology, the retributive character of a punishment is no more favoured. Therefore, Courts while punishing a person on conviction should be careful to see that the punishment is not retributive. But from the totality of the circumstances, it is evident that the cheque of Rs.15,000/- was issued on 20.3.1970 i.e. about 44 years back and the judgment under appeal was passed on 9.8.1983 i.e. about 31 years back, so substituting or enhancing the punishment at this stage cannot serve any purpose. At this stage, we do not propose to allow this appeal and substitute our own findings on the point of sentence and we restrain ourselves from imposing any enhanced punishment. 10. In view of the facts and circumstances of the case, in our view, this appeal has got no force and is liable to be dismissed. 11. Accordingly, the judgment and order of the learned trial court is affirmed and the appeal is dismissed.