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2017 DIGILAW 124 (ALL)

Parashu Ram Verma v. State of U. P.

2017-01-10

VIJAY LAXMI

body2017
JUDGMENT Dr. Vijay Laxmi, J. The challenge in this Criminal Revision is to the judgment and order dated 28.07.2006 passed by the Additional District and Sessions Judge, Court No. 5, Hardoi in Criminal Appeal No. 14 of 2005 (Parshuram Verma vs. State of U.P.) in Crime No. 278 of 1987 confirming the judgment and order dated 16.03.2005 of the Trial Court whereby the revisionist was convicted and awarded sentence of three years rigorous imprisonment and also fine of Rs. 5,000/- only under Section 409 IPC and in case of default of payment of fine to undergo further one month rigorous imprisonment. 2. The first information report dated 21.08.1987 was lodged by Sri R.L.Yadav, Director, U.P. Bhulekh Prakshikshan Sansthan, District Hardoi under Sections 409/420 IPC. 3. The brief facts of the case are that one R.L. Yadav, Director, U.P. Training Institution of Survey and Land Record, Hardoi lodged a report on 21.08.1987 at Police Station Kotwali Shahar, Hardoi against the revisionist stating therein that while the respondent was posted as Senior Head Clerk in his office who was looking after the work relating to cash transaction and also used to keep cash of the institution in his custody, had committed financial irregularities from April, 1986 to February, 1987, details of which were to the effect that he had drawn an amount of bill of Rs. 12/- and Rs.1077.50 of M/s Jain School Book Dipo from the treasury on 11.04.1986 and 13.10.1986 respectively and shown to have been distributed on the same day, while in fact it was not distributed to the firm. He had further kept Rs. 152/- in his use, which was drawn from the bank for payment through Electronic House, Hardoi. Further, Rs. 122/- were also drawn from the bank on 10.02.1987 as T.A. bill and shown to have been distributed on the same day, while in fact the same was not received by the concerned person, namely, M.P. Srivastava as is clear from his application dated 19.08.1987. On this complaint, the revisionist sent a peon to the house of M.P. Srivastava on 24.06.198 and obtained receipt of Rs. 172/-. Thus, he kept that amount in his custody. On 08.11.1986 the revisionist had drawn an amount of Rs. On this complaint, the revisionist sent a peon to the house of M.P. Srivastava on 24.06.198 and obtained receipt of Rs. 172/-. Thus, he kept that amount in his custody. On 08.11.1986 the revisionist had drawn an amount of Rs. 28.75/- as T.A. bill of Umashanker, Waterman and it was shown to have been distributed in the cash book on the same day, but in fact the same was not paid to him. Thereafter, on 08.10.1986, Rs. 300.50/- as T.A. bill was drawn though treasury and shown to have been distributed on the same day, while there is no signature on the office copy of the bill. Further on 23.07.1987 surprise checking of cash maintained by the revisionist was done, in which Rs. 2650/- was found from his possession while according to cash book it should have been Rs. 2912.57/-. Thus, there was shortage of Rs. 262.75/-. Further, the revisionist from Kanoongo Trainees for club fund received Rs. 5632/- from 01.01.1987 to 19.01.1987, but he deposited Rs. 1500/- only in the bank on 03.02.1987. Thereafter, he was ordered that he may deposit remaining amount till 14.02.1987, but he deposited the remaining amount on 23.02.1987. 4. The charge-sheet was submitted after the conclusion of investigation. Thereafter, the trial was conducted and statements of the witnesses were recorded and statement of the accused under Section 313 Cr.P.C. was also recorded. The matter was first decided by the learned court below on 24.11.1993 where it was concluded that there was no sanction for prosecution of the accused under Section 197 Cr.P.C., therefore, he was acquitted of the charge. 5. The matter was remanded back by this Court vide order dated 24.11.1993. The revisionist was, thereafter, convicted by Chief Judicial Magistrate, Hardoi vide impugned judgment/order. The appellant Court also confirmed the conviction. Being aggrieved, this revision has been filed. 6. It was observed by this Court vide order dated 27.09.2004 that the charge was levelled against the revisionist under Section 409 IPC. It could not be said that it was the duty of the revisionist as public servant to cheat and thereby dishonestly induce delivery of property during the period of discharging official duties. Under Section 197 Cr.P.C. there was bar only where the public servant is an accused of any offence alleged to have been committed by him while acting in the discharge of official duties. Under Section 197 Cr.P.C. there was bar only where the public servant is an accused of any offence alleged to have been committed by him while acting in the discharge of official duties. Placing reliance on judgment of the Apex Court in the case of State of H.P. Vs. M.P. Gupta; 2004 (SCC (Cri) 539, the judgment and order dated 24.11.1993 was found not sustainable in the eyes of law and was set-aside. 7. It is argued by learned counsel for the revisionist that High Court vide order dated 27.09.2004 set aside order dated 24.11.1993 and directed the Trial Court to decide the case on merit as fresh after giving full opportunity of hearing to the parties by recalling witnesses or by producing additional witnesses in this case. The learned court below committed serious irregularity in passing the conviction order dated 16.03.2005, without calling any evidence, additional evidence and without again examining the revisionist under Section 313 Cr.P.C., which was illegal and arbitrary. The money of Uma Shankar, PW-4, Iftkhar Ahmad, PW-5 and Dinesh Chandra Jain, PW-3 was said to be misappropriated alleging that the money due to them was not paid by the revisionist in time. All of them did not support the allegation of prosecution and, thus, the revisionist was exonerated from respective charges. The conviction of the revisionist on the same evidence was not in accordance with law. No Government money is alleged to have been usurped by the revisionist. Nothing is due against him. The revisionist is aged about 72 years, who is facing lot of physical problem. He has been in jail for 9 days after FIR, during appeal he has been in jail for 2 months 7 days and during pendency of this revision he has been in jail for 3 months 3 days. 8. It is further argued by learned counsel for revisionist that the amount alleged to have been misappropriated was deposited by the revisionist before initiation of the investigation and, thus, charge-sheet under Section 409 IPC could not be sustained. Reliance is placed on the judgment of the Apex Court in the case of Narendra Pratap Narain Singh and another Vs. State of U.P. AIR 1991 SC 1394 . Reliance is placed on the judgment of the Apex Court in the case of Narendra Pratap Narain Singh and another Vs. State of U.P. AIR 1991 SC 1394 . The reliance is also placed on ruling of Akbar Husain Vs The State of Jharkhand in criminal appeal No.1771/2003 and Yog Raj Sudan and Kuldeep Singh Vs State of J and K 2005 (2) JKJ 491 . 9. It is also submitted that the revisionist cannot be convicted for alleged temporary embezzlement of few days and no case was properly made out against him. Reliance is placed on the judgment of N.K. Illiyas vs. State of Kerala decided on 12.7.12011. 10. It is further contended that the case of prosecution depends on the charge that the revisionist had withdrawn certain amount from treasury in the name of other persons, but the same was not paid to them timely, however, it was paid to them with some delay and also before registration of FIR. The Government did not suffer any loss or aggrieved party did hot lodge any report for the delayed payment. The provision of Section 409 IPC cannot be attracted in this case since the moment the amount was withdrawn by the revisionist for payment to concerned persons, the Government has lost its right on said money. 11. It is also submitted that the accused is aged about 72 years old and he has been totally ruined physically and economically by the department due to promotion rivalry. He was falsely implicated in this case by Beni Singh, Director. The suspension order was passed prior to departmental enquiry without serving any charge-sheet on him on 06.06.1987 and he was terminated from service by the department on 12.09.1989. 12. Per contra, learned A.G.A. vehemently argued that criminal proceedings pending for economic offence punishable under Section 420, 467, 468, 471 read with Section 120-B I.P.C. cannot be quashed merely on the ground that accused had deposited the amount before FIR. The reliance has been placed on the ruling of Central Bureau of Investigation Vs Maninder Singh, 2015 (3) JIC 363 (SC), whereby it was observed by Supreme Court that economic offences are not cases of simple assault or a theft of a trivial nature but are serious offences which are committed with a deliberate design with an eye on personal profit regardless of consequence to the society at large. In Maninder Singh case (Supra), the Apex Court set aside the order of High Court where reliance was placed on Nikhil Merchant Vs CBI and another 2008 (9) SCC 677 , the High Court quashed the criminal proceedings pending against the respondent on the ground that the respondent has settled the matter with the Bank. In Nikhil Merchant's Case (Supra), certain documents were alleged to have been forged by the respondent thereon in order to avail credit facilities beyond the limit to which the company was entitled. In Nikhil Merchant's case the dispute was between the company and the bank which was set at rest on the basis of compromise arrived at by them and dues of the bank have been cleared. The case at hand is clearly distinguishable from rulings cited on behalf of revisionist. The learned court below observed that it was clearly established from the evidence on record that the public money was misappropriated by the revisionist and it was only after the surprise inspection which was made in February, 1996 that the said misappropriation came to light. The amount was paid by the revisionist thereafter. Thus, no benefit of the rulings relied upon by the learned counsel for the revisionist could not be given to him in the facts of this case. 13. Learned counsel for the revisionist reminded the court of his having lost service who was terminated by the department in the year 1989 and presently he is 72 years of age. 14. I have perused the material on record. 15. There are two judgments of both the Courts below arriving at the conclusion that the accused-revisionist committed the offence. The appeal was dismissed by the Appellate Court.The question which now arises is whether all these findings of facts arrived at by the two courts below should be set aside. The learned Advocate appearing for the State has repeatedly canvassed before me the argument that the judgment of the appellate Court is full of convincing details and that the judgment should not be set aside. I have been impressed by this argument. Indeed, in this case the facts, circumstances and the background are sufficiently truth revealing and where both the trial and the appellate Courts have concurrently arrived at the truth not perfunctorily but by a process of well-grounded reasonings. 16. I have been impressed by this argument. Indeed, in this case the facts, circumstances and the background are sufficiently truth revealing and where both the trial and the appellate Courts have concurrently arrived at the truth not perfunctorily but by a process of well-grounded reasonings. 16. In the opinion of this Court contentions of revisionist cannot be accepted on the ground that there is little scope under the revisional jurisdiction to upset the finding of the facts especially when there is no illegality, impropriety and perversity in the conclusions of the court below. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision. Hon'ble Supreme Court in State of Kerala v. Putthumana Illath Jathavedan Namboodiri, AIR 1999 SC 981 , has held that the High Court while hearing revisions does not work as a appellate court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done. In the instant case, I do not think that it would be just and proper for me to interfere with the finding of fact unnecessarily while exercising my powers in revisional jurisdiction. It is found that the judgment of conviction by the Courts below is found without any error, therefore the judgment of conviction is hereby confirmed. 17. On the quantum of sentence, it has been pleaded on behalf of the revisionist that he was 72 years of age and suffering from heart and other serious ailments. I am of the opinion that in view of his poor health condition which may require constant attendance by an attendant, I feel that no purpose will be served in sending him to prison; for that may require the prison authorities to keep him in prison hospital and look after him. 18. It becomes evident from record that the revisionist had already undergone sentence of more than five months. 18. It becomes evident from record that the revisionist had already undergone sentence of more than five months. At the time of this incident, the revisionist/accused was aged about 43 years and he has already faced the agony of trial and further proceedings in this case from 1987 and he is said to be suffering from heart and other serious ailments who was terminated from service by the department concerned in 1989, therefore, having regard to the facts of this case, nature of offence and gravity of punishment, I am of the view that sentence should be reduced to serve the ends of the justice. The substantive sentence imposed upon the revisionist for the offence under Section 409 IPC is thus reduced to the period equivalent to the period of detention he has undergone. However, the sentence of fine is maintained and in default of the payment of the fine, revisionist is directed to undergo simple imprisonment for one month. 19. This revision stands partly allowed to the extent indicated above.