Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 429 (JHR)

Dinesh Lal v. State of Jharkhand

2017-03-01

RONGON MUKHOPADHYAY

body2017
ORDER : 1. Heard Mr. Navin Kumar, learned counsel for the petitioner and Mr. Arun Kumar Pandey, learned A.P.P. for the State. 2. This revision application is directed against the judgment dated 07.06.2001 passed in Criminal Appeal No. 105 of 2000 by the learned Sessions Judge, Hazaribagh whereby and whereunder the judgment of conviction and sentence passed by the learned Judicial Magistrate 1st class, Hazaribagh in G. R. No. 1685 of 1995 corresponding to T. R. No. 264 of 2000 by which the petitioner has been convicted for the offence punishable under Sections 409/420 of I.P.C. and sentenced to undergo R.I. for 2 years have been affirmed. 3. It has been stated by the learned counsel for the petitioner that proper appreciation has not been made to the materials available on record by the learned courts below. It has been stated that there was a departmental audit held by the D.S.E., but its report has never been brought on record. He further submits that several important documents which would show that the money was not withdrawn and which was lying in the custody of the treasury has not been brought forward by the prosecution. He further submits that there is no allegation that the alleged defalcated amount was not disbursed, as no person has come forward to state such fact. He has also stated that there is delay in instituting of FIR and no plausible explanation has been submitted by the prosecution with respect to such delay. Furthering this argument he submitted that provision of 197 of Cr.P.C. has also not been complied with. Learned counsel for the petitioner has put forward an alternative argument that if this court is not inclined to interfere with the judgment of conviction, the period of sentence may suitably be modified. 4. Learned A.P.P. has opposed the prayer. 5. It appears that the petitioner was being prosecuted on the allegation that being a head master of Middle School, Banshu, Bishungarh, he was also the Drawing and Disbursing Officer of the School and who had withdrawn an amount of Rs.98,569/- and had defalcated the same. It is alleged that the petitioner had retired on 31.01.1994 and an audit was done in the year 1992-93. 6. In course of trial, 3 witnesses were examined on behalf of the prosecution including Investigating Officer who has examined as P.W. 3. It is alleged that the petitioner had retired on 31.01.1994 and an audit was done in the year 1992-93. 6. In course of trial, 3 witnesses were examined on behalf of the prosecution including Investigating Officer who has examined as P.W. 3. P.W. 1 - Sunil Kumar Roy, is the then District Superintendent of Education, Hazaribagh and who has submitted the report to the police. This witness has stated that Auditor has submitted its report to the Deputy Commissioner, Hazaribagh in which allegation of defalcation of amount of Rs. 98,569/- has been mentioned. P.W. 2 is the Senior Auditor who verified register as well as various pages of the cash book and also the documents relating to salary disbursement. This witness has further stated that before filing the case sanction was taken from the Deputy Commissioner, Hazaribagh. P.W. 1 has also disclosed that the certificate case has been filed against the petitioner. P.W. 2 is the Senior Auditor who has done the audit and he had also proved various documents in connection with the said audit. This witness has categorically stated that in the audit, it has come to light that the petitioner has committed defalcation of amount of Rs. 98,569/- being the Drawing and Disbursing Officer of the School in question. P.W. 3 is the Junior Sub-Inspector of Police who is the I.O. of the case and in course of examination, he had examined necessary witnesses and had submitted charge-sheet. 7. It appears that although various points were enumerated by the petitioner, but the same have been answered in detail by the learned trial court as well as by the learned appellate court. Claim of the petitioner is that nothing was deduced to show on what basis the money was withdrawn, but it appears that the Auditor - P.W. 2 has himself stated that he has done the verification in the bank, treasury as well as in the DSE Office. With respect to the contention of the learned counsel for the petitioner that the departmental inquiry was not brought on record, it seems that the auditor had conducted the audit and had found certain defalcation and the question of departmental inquiry does not arise and such non-production would not be fatal to the prosecution case. With respect to the contention of the learned counsel for the petitioner that the departmental inquiry was not brought on record, it seems that the auditor had conducted the audit and had found certain defalcation and the question of departmental inquiry does not arise and such non-production would not be fatal to the prosecution case. The excess amount which was withdrawn by the petitioner is countered by the petitioner by stating that no person has come forward to suggest that the amount was not disbursed. This argument is fallacious in view of the fact that the defalcated amount may have been withdrawn for the own personal benefit of the petitioner. The report was submitted by the Deputy Commissioner on 14.08.1995 and the FIR was lodged on 19.09.1995. As such there does not appear to be inordinate delay in instituting the FIR as in such circumstances after the audit report was submitted to the DSE who forwarded the same to the Deputy Commissioner, Hazaribagh pursuant to which FIR has been instituted. The oral as well as the documentary evidence point to the involvement of the petitioner in committing defalcation of amount in question being the D.D.O. of the School. Such fact having properly been appreciated by the learned trial court as well as by the learned appellate court, the conviction of the petitioner under Sections 409/420 of I.P.C. cannot be overturned. However, as regards the sentence which has been imposed upon the petitioner, it appears that the FIR was instituted in the year 1995 and the petitioner has faced the rigors of the prosecution case for an indefinite length of time. The petitioner as has been submitted by the learned counsel has remained in custody for about 8 months out of the maximum punishment of 2 years R.I. 8. Considering the long pendency of the case and the period of custody undergone by the petitioner, the sentence awarded to the petitioner is reduced to the period already undergone by him. 9. This application stands dismissed with the aforesaid modification in sentence. Application dismissed.