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2015 DIGILAW 1153 (SC)

Suman Kumar v. State Of Himachal Pradesh

2015-09-03

AMITAVA ROY, H.L.DATTU, V.GOPALA GOWDA

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ORDER : 1. This appeal is directed against the judgment and order passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 387 of 2001, dated 29.12.2008. By the impugned judgment and order, the High Court has confirmed the order of conviction and sentence passed by the Trial Court for the offences punishable under Section 409 of the Indian Penal Code (for short, "the IPC") and Section 13(2) of the Prevention of Corruption Act, 1988. 2. The brief facts of the prosecution case are that the appellant was working as a Junior Engineer, Irrigation and Public Health Department, Thanadhar Section from 1978 to 1980. He was overseeing the execution of several water supply schemes in the Section under his charge and was also entrusted with articles stored in the Section. He was transferred in October, 1980 and handed over charge to another Junior Engineer. At that time, a list of material stored was prepared and signed by the appellant. It was discovered that there was a shortage in the material stored of the value of Rs.23,045.13/-. An audit was conducted in 1983-1984, and it was discovered that the total shortfall was of the value of Rs.1,09,861.30/-. The appellant was unable to account for the shortages. Thereupon, the police registered a First Information Report against the appellant on 03.03.1989 under Sections 409 of the IPC and 13(2) of the Prevention of Corruption Act, 1988. Upon the completion of investigation and grant of sanction for prosecution, a charge sheet was filed against the appellant. 3. Thereafter, the appellant appeared before the Trial Court and after both sides were heard, charges were framed against the appellant for the offences punishable under Sections 409 of the IPC and 13(2) of the Prevention of Corruption Act, 1988. The charges were read over and explained to the appellant who pleaded not guilty. Accordingly, the case was committed to Trial. 4. In order to substantiate the charges framed against the appellant, the prosecution examined 13 witnesses. After the completion of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (for short, "the Code"). No evidence was led in defense. 5. Accordingly, the case was committed to Trial. 4. In order to substantiate the charges framed against the appellant, the prosecution examined 13 witnesses. After the completion of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (for short, "the Code"). No evidence was led in defense. 5. Upon detailed consideration of the evidence on record and submissions of the learned counsels for the parties, by judgment and order dated 30.06.2001, the Trial Court found the appellant to be guilty of the offence punishable under Section 409 of the IPC and sentenced him to undergo rigorous imprisonment for a period of one year, along with payment of fine of Rs.2,000/-, and in default to undergo simple imprisonment for a period of six months. Further, the Trial Court convicted the appellant for the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment for a period of one year, along with payment of fine of Rs.2,000/-, and in default to undergo simple imprisonment for a period of six months. 6. Being aggrieved by the said judgment and order of the Trial Court, the appellant preferred an appeal before the High Court. Upon a detailed consideration of the submissions of the parties and also the evidence on record including the judgments and orders passed by the Courts below, the High Court found no reason to interfere with the judgment and order of the Trial Court and confirmed the order of conviction and sentence for the offences under Section 409 of the IPC and 13(2) of the Prevention of Corruption Act, 1988. 7. Being aggrieved by the said judgment and order passed by the High Court, the appellant is before us in this appeal. 8. We have heard the learned counsel appearing for the parties to the lis. 9. Mr. Ashok Mathur, the learned counsel for the appellant, would assail the judgment and order passed by the High Court and submit that for the offence punishable under Section 409 of the IPC to be made out there must be 'dishonest misappropriation'. Mere shortfall in material stored would not be sufficient to amount to 'dishonest misappropriation' and dishonest intention on part of the appellant must be specifically proved to make out the offence. 10. Mere shortfall in material stored would not be sufficient to amount to 'dishonest misappropriation' and dishonest intention on part of the appellant must be specifically proved to make out the offence. 10. The learned counsel for the appellant would further submit that the Courts below have failed to appreciate that in the instant case the material in the custody of the appellant was scattered in several stores in the vast area falling under his charge, and therefore there was possibility of pilferage of material with no dishonest intention on part of the appellant. Apart from arguing on merits of the case, learned counsel for the appellant would submit that the appellant has been removed from service, the shortfall amount has been recovered from the appellant and further that the appellant has already undergone six months of imprisonment, and in that view of the matter the sentence ought to be reduced. 11. Per contra, the learned counsel appearing for the respondent-State would support the order of conviction passed by the High Court. However, the learned counsel appearing for the respondent-State would not seriously dispute the submissions of the learned counsel for the appellant relating to the reduction of sentence. 12. After going through the judgment and order passed by the High Court as well as the Trial Court and the material available on record, we are of the considered opinion that the well reasoned order of conviction passed by the Trial Court and confirmed by the High Court does not require interference, and all ingredients of the offences punishable under Section 409 of the IPC and Section 13(2) of the Prevention of Corruption Act, 1988 have been proved beyond reasonable doubt as against the appellant. 13. The offence for which the appellant has been convicted was committed in the period 1978-1980, which is prior to the enactment and commencement of the Prevention of Corruption Act, 1988. 13. The offence for which the appellant has been convicted was committed in the period 1978-1980, which is prior to the enactment and commencement of the Prevention of Corruption Act, 1988. Article 20 clause 1 of the Constitution of India provides: "No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." In view of Article 20(1) of the Constitution of India, the appellant could not have been convicted and sentenced under the Prevention of Corruption Act, 1988. Although the First Information Report was registered in the year 1989, the appellant ought to have been charged, tried and convicted for the offences punishable under the Prevention of Corruption Act, 1947. 14. The substantive offence under Section 13 of the Prevention of Corruption Act, 1988 is pari materia with the offence punishable under Section 5 of the Prevention of Corruption Act, 1947. Once the ingredients of the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 have been proved against the appellant beyond reasonable doubt, the same would apply with respect to the offence punishable under Section 5(2) of the Prevention of Corruption Act, 1947. 15. Section 409 of the IPC does not provide for a minimum sentence. Although Section 5(2) of the Prevention of Corruption Act, 1947 provides for a minimum sentence of imprisonment of one year, the proviso to Section 5(2) provides that the Court may, for special reasons recorded in writing, impose a sentence of imprisonment less than one year. In the instant case, the appellant is more than 60 years of age and has been removed from service. The entire shortfall amount has been recovered from the appellant and he has already undergone six months of imprisonment. Keeping these aspects of the matter in view, while confirming the conviction for the offences punishable under Section 409 of the IPC and Section 5(2) of the Prevention of Corruption Act, 1947 we modify the sentence to the period already undergone. 16. The appeal is disposed of accordingly. If the appellant has furnished any bail bonds, the same are discharged. 17. 16. The appeal is disposed of accordingly. If the appellant has furnished any bail bonds, the same are discharged. 17. It is needless to say that the order passed by us shall not be treated as precedent in any other case. Ordered accordingly.