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2016 DIGILAW 859 (RAJ)

Shellender Singh v. State of Rajasthan

2016-06-10

GOVERDHAN BARDHAR

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JUDGMENT : Goverdhan Bardhar, J. 1. This revision petition has been filed under Section 397/401 Cr.PC. against the judgment and order dated 03.08.1999 passed by learned Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar (for short "the appellate court") In Criminal Appeal No. 105/1997 (85/1995) whereby the learned appellate Court dismissed the appeal filed by the petitioner and upheld the conviction and sentence of the petitioner recorded by the learned Judicial Magistrate, First Class, Padampur (for short "the trial court") vide Judgment and order dated 13.06.1995 passed In Criminal Case No. 43/1989. By the said judgment, the learned trial Court convicted and sentenced the accused-petitioner for offence under Section 408 IPC to undergo 3 years' rigorous Imprisonment and to pay a fine of Rs. 500/-, and In default of payment of fine to further undergo 8 months' rigorous Imprisonment. 2. As per the ease set up by the prosecution, the accused-petitioner Shelender Singh was a salesman appointed In Kraya Vikraya Sahakari Samiti, Rajsinghpur In the year 1976 for selling fertilizer, seeds and pesticides etc. It is alleged that physical verification of the stock was not got done by the petitioner and he used to get the signatures of the officers by mentioning In the documents that the physical verification has been done, The petitioner was transferred on 4,6,1986 and he was directed to hand over the charge to one Ramesh Sharma, but the petitioner went on leave by locking the godown, Thereafter, a general meeting of Samiti was convened and on 27,6,1986, It was ordered that a physical verification of the godown be made, Accordingly, the lock of the godown was broken and upon verification, several empty sacks of fertiliser were found in the godown. As per the verification report, the petitioner allegedly embezzled Rs. 6,75,277.30. 3. The F.I.R. was lodged against the petitioner on 5.2.1987 and he was arrested. After usual investigation, the police filed challan against the accused-petitioner for offence under Section 408 IPC. 4. After hearing the arguments and considering the material on record, the learned trial court framed charge against accused-petitioner for offence under Section 408 IPC, who pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined 12 witnesses in support of its case. The accused in statement under section 313 Cr.RC. denied the allegation levelled against him and examined one witness in his defence. 6. 5. At the trial, the prosecution examined 12 witnesses in support of its case. The accused in statement under section 313 Cr.RC. denied the allegation levelled against him and examined one witness in his defence. 6. At the conclusion of the trial, the learned trial Court vide judgment and order dated 13.06.1995 convicted the accused-petitioner Shellender Singh for offence under Section 408 IPC. 7. Being aggrieved by his conviction and sentence, the petitioner preferred appeal before the learned Additional Sessions Judge, Sri Karanpur, District Sri Ganganagar, who by his judgment date 03.08.1999 upheld the conviction of the petitioner recorded by the learned trial Court, as aforesaid. Hence, this revision petition. 8. The learned counsel for the petitioner submitted that the learned courts below have committed error in misreading the evidence. The charge of the godown was with the Accountant and the petitioner was not the in charge of the godown. Various bills produced by the prosecution do not bear the signatures of the petitioner and therefore, it cannot be said that any goods relating to those bills were entrusted to the custody of the petitioner. It is further argued that the petitioner was on leave from 3.6.1986 to 9.6.1986. During this period, General Manager of the Samiti got the keys of the godown from the house of the petitioner and some goods were taken out from the godown. The petitioner also wrote a letter to the Supervisor on 10.6.1986 in this regard stating that certain fertilisers are short. Lastly, it is contended that physical verification was also not done properly. No proper vehement (weighment) was done. Therefore, prayed for his acquittal of the aforesaid offence. In the alternative, the learned counsel for the petitioner submitted that considering the facts and circumstances of the case, the sentence awarded to the petitioner be reduced to the period already undergone by him. 9. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is no occasion either to interfere with the concurrent findings and the sentence awarded to the accused-petitioner by the learned Court below nor any compassion or sympathy is called for in the said case. 10. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the petitioner. The learned PP submitted that there is no occasion either to interfere with the concurrent findings and the sentence awarded to the accused-petitioner by the learned Court below nor any compassion or sympathy is called for in the said case. 10. I have considered the rival submissions advanced by the learned counsel for the parties and gone through the judgments passed by both the courts below as well as record of the case. 11. In view of the over all facts and circumstances of the case, this Court is of the view that the courts below have appreciated the evidence which came before them in proper and correct perspective and there is no reason to interfere with the said findings of the courts below. The conviction of the petitioner recorded by the trial court and affirmed by the trial court is confirmed and upheld. 12. However, taking into account the fact that the incident is of the year 1987 and the petitioner has already undergone 1½ years of 3 years sentence, this Court is of the opinion that the ends of justice would be met if the substantive sentence of imprisonment awarded by the trial court and affirmed by the appellate court is reduced to the period of imprisonment already undergone by the petitioner. 13. In the result, the appeal is partly allowed. While maintaining the conviction of accused-petitioner for offence under Section 408 IPC, his sentence is reduced to the period already undergone by him. However, the fine of Rs. 500/- imposed by the learned court below shall stand enhanced to Rs. 5,000/-, upon same condition as imposed by the learned trial court in case of default of payment of fine. The said amount of fine shall be deposited in the court of Judicial Magistrate, First Class, Padampur within a period of 90 days.