Baghiari Co-operative Agricultural Service Society Limited v. State of Punjab
2016-02-01
HARI PAL VERMA
body2016
DigiLaw.ai
JUDGMENT : HARI PAL VERMA, J. This is an application under Section 5 of the Limitation Act, 1963 (for short, the Act) seeking condonation of delay of 535 days in filing the present criminal revision petition. Learned counsel for the applicant-petitioner, namely, The Baghiari Co-operative Agricultural Service Society Limited, Baghiari, Tehsil and District Tarn Taran has contended that the lower appellate Court vide judgment dated 20.8.2011 had acquitted respondent No. 2 accused Talwinder Singh. However, this fact came to the knowledge of the petitioner-society only after receipt of a legal notice dated 3.8.2012 from Kulbir Singh son of Harbhajan Singh and Amarjit Singh son of Karnail Singh through their counsel. As such, on attaining knowledge about the judgment dated 20.8.2011, the petitioner-society obtained copy of the same resulting into delay in filing the present criminal revision petition. Undisputedly, the FIR No. 86 dated 9.7.2001 under Sections 408, 201 and 120B IPC was registered against respondent No. 2 accused at Police Station, Chabhal on the complaint sent by the Assistant Registrar, Co-operative Societies, Tarn Taran on the averments that respondent No. 2 had allegedly committed embezzlement of Rs. 1,97,985/- with the petitioner-society. It is an admitted fact that as many as 30 members of the petitioner-society has appeared in the witness box as prosecution witnesses before the trial Court. Therefore, it cannot be said that the petitioner-society was not aware of the proceedings pending against respondent No. 2 in the appellate Court. The delay of 535 days in filing the present revision petition is inordinate one and the petitioner-society has not been able to sufficiently explain the same. Thus, the present application does not fulfil the requirement of law as laid down under Section 5 of the Act. In these circumstances, there is no merit in the present application and the same is, consequently, dismissed. Main Case Though after dismissal of the application under Section 5 of the Act, the present petition is not required to be discussed elaborately, but still for just and fair decision of the matter, the revision petition is being decided on merits as well.
Main Case Though after dismissal of the application under Section 5 of the Act, the present petition is not required to be discussed elaborately, but still for just and fair decision of the matter, the revision petition is being decided on merits as well. The petitioner-society has filed the present revision petition against the judgment dated 20.8.2011 passed by learned Additional Sessions Judge, Tarn Taran whereby the appeal filed by respondent No. 2 accused Talwinder Singh was allowed and the judgment of conviction as well as order of sentence, both dated 14.11.2005 passed by learned Judicial Magistrate 1st Class, Tarn Taran were set aside resulting into acquittal of respondent No. 2. Briefly stated, the FIR in question was registered against respondent No. 2 on 9.7.2001 for committing embezzlement of Rs. 1,97,985/- with the petitioner-society in which respondent No. 2 was employed as secretary. He used to collect the amount from the members of the society and to deposit the same with the bank. He collected the amount from various members, as referred in the FIR, but instead of depositing the same with the bank, embezzled the said amount. Learned trial Court vide judgment dated 14.11.2005 held respondent No. 2 guilty for commission of offence punishable under Section 408 IPC and vide separate order of even date, sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- and in default thereof, to further undergo rigorous imprisonment for 25 days. Against the verdict of learned trial Court, respondent No. 2 preferred an appeal before the appellate Court. Learned Additional Sessions Judge, Tarn Taran accepted the appeal vide judgment dated 20.8.2011 and set aside the judgment of conviction and order of sentence passed by the trial Court. It is in the aforesaid circumstances, the petitioner-society has filed the present criminal revision petition. Learned counsel for the petitioner-society has contended that the trial Court after framing charge against respondent No. 2 and after conclusion of the evidence has rightly convicted and sentenced him under Section 408 IPC. However, learned appellate Court has committed illegality in acquitting respondent No. 2 by ignoring the evidence adduced by the members of the petitioner-society.
Learned counsel for the petitioner-society has contended that the trial Court after framing charge against respondent No. 2 and after conclusion of the evidence has rightly convicted and sentenced him under Section 408 IPC. However, learned appellate Court has committed illegality in acquitting respondent No. 2 by ignoring the evidence adduced by the members of the petitioner-society. During the trial, as many as 30 witnesses deposed against respondent No. 2 to the effect that they deposited the loan amount with him, but in spite of issuing receipts in their passbooks, the amount still stand in the bank account, meaning thereby, respondent No. 2 has collected money from the members of the society, but did not deposit the same in their bank accounts intentionally and thus, embezzled the amount for his personal gains. Learned counsel for the petitioner-society has further submitted that the appellate Court did not appreciate the fact that respondent No. 2accused refused to give his signatures before Tehsildar so as to compare his signatures with the passbooks of the members of the society. Therefore, the adverse inference should have been drawn against respondent No. 2. The evidence led by the prosecution before the trial Court has independently not been appreciated by learned appellate Court while acquitting respondent No. 2 accused. I have heard learned counsel for the petitioner. The scope of revisional jurisdiction is vested with limited powers. Hon’ble Apex Court in Johar and Others vs. M/s. Mangal Prasad and Another, 2008 (3) SCC 423 while dealing with the scope of revisional jurisdiction, has observed as under:- “17. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under section 397 and 401 of the Code Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally restricted, particularly when it arises from a judgment of acquittal.” A perusal of the judgment passed by learned Magistrate shows that the conviction of respondent No. 2 is based upon adverse inference against him. In the criminal jurisprudence, the prosecution is required to prove its case beyond all probabilities.
In the criminal jurisprudence, the prosecution is required to prove its case beyond all probabilities. Moreover, even the trial Court has observed that there are many lapses on the part of the prosecution to prove its case, but still the accused has failed to prove his innocence by not providing his signatures. Perusal of the records reveals that the prosecution has examined as many as 30 witnesses. Out of them, PW-1 to PW-21 and PW-27 to PW-30 are the persons who are the share holders of the petitioner-society. If entire statements of the witnesses are examined, it will lead to a conclusion that they were not originally holding any account with the petitioner-society, rather, the account holders were either the father, husband or brother of these witnesses. They have only placed on record the photocopies of the passbooks mentioning the entries of deposit of the amount. This Court feels that the observations made by learned trial Court that respondent No. 2 accused has failed to prove his innocence is against the concept of criminal judicial system. Under the criminal law, the accused is considered to be innocent unless proved guilty by the prosecution by leading cogent evidence. Thus, the prosecution has failed to discharge its burden that after receiving the amount from the share holders of the petitioner-society, respondent No. 2accused has failed to deposit the same with the bank. In view of the above, the impugned judgment dated 20.8.2011 passed by learned Additional Sessions Judge, Tarn Taran does not suffer from any material infirmity, illegality or irregularity which may warrant interference of this Court by invoking its revisional jurisdiction. Thus, affirming the same, the present petition, being devoid of any merit, is dismissed.