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2017 DIGILAW 2801 (RAJ)

Sada Ram v. State Of Rajasthan

2017-12-15

MANOJ KUMAR GARG

body2017
JUDGMENT Manoj Kumar Garg, J. - This criminal revision petition has been filed under Section 397/401 Cr.P.C. against the judgment and order dated 12.08.1998 passed by Sessions Judge, Jalore in Criminal Appeal No.54/96 whereby the learned appellate Court dismissed the appeal filed by the accused-petitioner and upheld the conviction and sentence of the accused-petitioner recorded by the learned Civil Judge (Sr. Division) and Chief Judicial Magistrate, Jalore (for short "the trial court") vide judgment and order 27.06.1996 passed in Criminal Case No. 19/1983. By the said judgment, the learned trial Court acquitted the accused-petitioner for offence under Section 120 IPC but convicted him for offence under Sections 408 & 467 IPC. The sentence awarded to accused-petitioner is as under:- Offence Sentence awarded by the trial court Section 408 To undergo one year rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo three months simple imprisonment Section 467 To undergo one year rigorous imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months simple imprisonment. 2. Brief facts of the case are that the complainant Mr. B.D. Arya (PW/27), Assistant Registrar, Cooperative Society, Jalore submitted a written report (Ex-P/142) at Police Station Chitalwana in which it has been alleged that the accused-petitioner, who was cashier at Chitalwani Gram Sewa Sahkari Samity Ltd, made embezzlement of Rs. 23,228.04/- by showing false and wrong entries of expenses in the cash book. It was further alleged that the accused-petitioner also made embezzlement of Rs. 15,000/-m by not depositing the said loan amount in the bank collected from the members of the cooperative society and disbursed forged loan. On the said complaint, the Police registered the case against the accused-petitioner for offences under Sections 408, 467 & 120B IPC and commenced investigation. After due investigation, challan was filed before the competent court. 3. After hearing the arguments and considering the material on record, the learned trial court framed charges against accused-petitioner for offence under Sections 408, 467 & 120B IPC, who pleaded not guilty and claimed trial. 4. At the trial, the prosecution examined 27 witnesses and produced 155 documents in support of its case. Thereafter the statement of the accused-petitioner was recorded under section 313 Cr.P.C. In defence, no witness was examined. 5. 4. At the trial, the prosecution examined 27 witnesses and produced 155 documents in support of its case. Thereafter the statement of the accused-petitioner was recorded under section 313 Cr.P.C. In defence, no witness was examined. 5. At the conclusion of the trial, the learned trial Court vide judgment and order dated 27.06.1996 acquitted the accused-petitioner for offence under Section 120B IPC but convicted and sentenced him for offence under Section 408 & 467 IPC. Being aggrieved by his conviction and sentence, the accused-petitioner preferred appeal before the Sessions Judge, Jalore, who by his judgment dated 12.08.1998 upheld the conviction and sentence of the accused-petitioner recorded by the learned trial Court, as aforesaid. Hence, this revision. 6. Mr. H.S. Balot, appearing for the accused-petitioner has submitted that the petitioner has not made any type of embezzlement and he has falsely been implicated in this case. The auditor, who was the very important witness in this case, has not been examined by the prosecution which creates doubt upon the prosecution story. Further the entries made in the record of the cooperative society were not verified with the entries made in the Bank record. It is further submitted that the cash book was maintained by Shri Ramchandra, Manager of the Society and on behalf of the Society Mr. Ramchandra was authorized to deposit the amount in the Bank but the learned courts below without taking into consider these important aspect of the matter passed the impugned judgments. In these circumstances, the learned counsel for the accused-petitioner has prayed for acquittal of the accused-petitioner for the aforesaid offence under Sections 408 & 467 IPC. In the alternative, the learned counsel for the accused-petitioner has submitted that considering the facts and circumstances of the case, the sentence awarded to the accused-petitioner be reduced to the period already undergone by him. 7. On the other hand, the learned Public Prosecutor opposed the submissions made by the learned counsel for the accused-petitioner. The learned PP submitted that neither there is any occasion to interfere with the concurrent findings and the sentence awarded to the accused petitioners by the learned Courts below nor any compassion or sympathy is called for in the said case. 8. I have perused the evidence of the prosecution as well as defence and the judgments passed by both the trial courts regarding conviction of the accused-petitioner. 9. 8. I have perused the evidence of the prosecution as well as defence and the judgments passed by both the trial courts regarding conviction of the accused-petitioner. 9. 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 Courts below and set aside the conviction recorded by the learned Courts below. The conviction of the accused-petitioner recorded by the trial court and affirmed by the appellate court below is confirmed and upheld. 10. However, taking into account the fact that the incident is of the year 1980 and the petitioner had remained in custody for more than two months, 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 accused-petitioner. 11. In the result, the revision is partly allowed. While maintaining the conviction of accused-petitioner for offence under Sections 408 & 467 IPC, his sentence is reduced to the period already undergone. However, the fine of Rs. 500/- and Rs. 1,000/- imposed by the learned courts below shall stand increased to Rs. 1,000/- and Rs. 10,000/- upon same condition imposed by the learned trial court in case of default of payment of fine. The said amount of fine shall be deposited in the trial Court within a period of two months.