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2022 DIGILAW 331 (UTT)

Yogendra Kumar v. State of Uttarakhand

2022-09-30

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. Instant revision is preferred against the followings:- (i) Judgment and order dated 06.04.2009, passed in Criminal Case No. 926 of 2001, State Vs. Yogendra Kumar, by the court of 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Roorkee, District Haridwar (“the case”). By it, the revisionist has been convicted under Section 409 IPC and sentenced to rigorous imprisonment for a period of three years with a fine of Rs.5,000/- and; (ii) Judgement and order dated 22.10.2010, passed in Criminal Appeal No. 19 of 2009, Yogendra Kumar Vs. State, by the court of Additional District and Sessions Judge, Roorkee, District Haridwar. By this judgment and order, the conviction and sentence of the revisionist has been upheld. 2. It is an admitted revision. It was admitted on 12.11.2010. The revisionist has not been appearing. On 07.06.2022, this Court while referring to law, as laid down in the case of Praban Kumar Mitra Vs. State of West Bengal and another, AIR 1959 SC 144 , Madan Lal Kapoor Vs. Rajiv Thapar and others, (2007) 7 SCC 623 and K.S. Panduranga Vs. State of Karnataka (2013) 3 SCC 721 held that the matter shall be heard on merits even in the absence of the revisionist. The Court sought assistance of Mr. Avidit Noliyal, as an Amicus Curiae. 3. Facts are in a very short compass. According to the prosecution case, the revisionist was working as Salesman in Bhagwanpur Kisan Sewa Sehkari Samiti Ltd. District Haridwar (“the Samiti”). He did not deposit the cash proceeds and misappropriated other items also. The details are as follows:- (1) From 01.07.1987 to 30.06.1988 - as per cash book Rs.18,067.50/- were not deposited. (2) From 01.07.1988 to 23.12.2088 - as per cash book total Rs.32,859.79/- were not deposited in the account. (3) Rs.6000/- which were withdrawn by the revisionist through cheque No.29067 were not duly accounted for. (4) Sale proceeds of the fertilizers, namely, Urea 92 bags, cost Rs.10,373/-, NPP 40 bags, cost Rs.6310/- DAP 19 bags, cost Rs.3339.25/-, were not deposited in accounts. 4. The revisionist admitted that he has to deposit the amounts, as alleged, but he did not deposit the money. An FIR was lodged on 28.02.1989. Based on which, Case Crime No. 31 of 1989, under Section 409 IPC was lodged at Police Station Bhagwanpur, District Haridwar. The matter was investigated and charge sheet was submitted. 5. 4. The revisionist admitted that he has to deposit the amounts, as alleged, but he did not deposit the money. An FIR was lodged on 28.02.1989. Based on which, Case Crime No. 31 of 1989, under Section 409 IPC was lodged at Police Station Bhagwanpur, District Haridwar. The matter was investigated and charge sheet was submitted. 5. On 18.11.1992, charge under Section 409 IPC was framed against the revisionist with the averments that he misappropriated total Rs.86,949.54/-. The charge was subsequently amended on 25.05.1993. Substantially, it was same. 6. In order to prove its case, the prosecution examined three witnesses, namely, PW1 Bishan Singh, Branch Manager of a Bank, PW2 Ganga Ram, the informant and PW3 Dharam Pal Singh. 7. The revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, the witnesses have falsely implicated him. The money was misappropriated by the Managing Director, PW2 Ganga Ram and he has been falsely implicated. In his defence, CW1 Om Prakash has been examined. 8. After hearing the parties, by the impugned judgment and order passed in the case, the revisionist has been convicted and sentenced, as stated hereinbefore. The order has been unsuccessfully challenged in appeal. Hence, the revision. 9. Heard learned Amicus Curiae and learned State counsel and perused the record. 10. Learned Amicus Curiae would submit that, in fact, the misappropriation was done by PW2 Ganga Ram. The revisionist did not misappropriate any amount. He was merely a Salesman. The entrustment has not been proved. The handwriting has not been got examined by any handwriting expert. The revisionist has denied his signatures on the documents. Therefore, it is submitted that the court below did commit an error in convicting and sentencing the revisionist. 11. On the other hand, learned State counsel would submit that the revisionist was entrusted with the goods and money, which he misappropriated. It is argued that the court below has rightly convicted and sentenced the revisionist. 12. This is a revision. The scope of revision is quite restricted to the extent of examining the correctness, legality and propriety of the impugned judgment and order. Generally, the appreciation of evidence at this stage cannot be done unless the finding is perverse or the finding is not based on any evidence or material evidence is ignored or irrelevant material is considered. The scope of revision is quite restricted to the extent of examining the correctness, legality and propriety of the impugned judgment and order. Generally, the appreciation of evidence at this stage cannot be done unless the finding is perverse or the finding is not based on any evidence or material evidence is ignored or irrelevant material is considered. The Court proceeds to examine this matter accordingly. 13. In the instant case, PW1 Bishan Singh is a person, who has stated that the cheque was given to the revisionist, which he withdrew. The amount of cheque was Rs.6,000/-. He has proved the cheque and other documents. The cheque is Ex. 2. 14. PW2 Ganga Ram is the informant. He was Managing Director in the Samiti. According to him, each year, the cash is verified in the Samiti. The revisionist was working as Salesman. He would purchase Government goods and sale it and he was required to deposit the money in the Samiti account, which he did not. This witness has categorically stated about the misappropriation, which was done by the revisionist. According to him, from 01.07.1987 to 30.06.1988, total Rs.18,067.50/-; from 01.07.1988 to 23.12.1988, Rs.32859.79/- amount of Cheque No. 29067, Rs.6000/- was not deposited in the accounts. Apart from it, according to this witness, certain amounts relating to fertilizers was not deposited by the revisionist in the Bank account. This witness has proved the cashbook entries, which have recorded the cash balance that was required to be deposited in the bank account. The cashbook entry from 01.07.1988 to 30.06.1988 has been proved as Ex. A1 at Page No.78, according to this witness, the entry of Rs.18067.50/- is recorded. In fact, during the recording of the statement of PW2 Ganga Ram, the revisionist admitted his handwriting on this cash book. PW2 Ganga Ram has also proved cashbook entries from 01.07.1988 to 23.12.1988. It is marked as Ex. A2, though not marked in his statement. According to PW2 Ganga Ram at Page 24 of it, the entry of Rs.32859.79/- is made, which was to be deposited by the revisionist. This witness has also proved the transfer voucher by which, the fertilizer was handed over to the revisionist for sale, but it was not deposited. It is Ex. A3. A2, though not marked in his statement. According to PW2 Ganga Ram at Page 24 of it, the entry of Rs.32859.79/- is made, which was to be deposited by the revisionist. This witness has also proved the transfer voucher by which, the fertilizer was handed over to the revisionist for sale, but it was not deposited. It is Ex. A3. According to this witness, this bears the signatures of both, this witness and the revisionist (although at that stage, the revisionist denied his signatures on it). PW2 Ganga Ram has also proved the FIR, Ex. A4. 15. PW3 Dharampal Singh was also working in the Samiti. He has stated the procedure as to how the things move in the Samiti. He has also stated about the cashbook and other documents. 16. CW1 Om Prakash proved a few documents. According to him, special audit report dated 27.08.1992 was prepared by the Assistant Development Officer, Cooperatives. He also proved other documents. 17. It is true that at one stage, during the examination of PW2 Ganga Ram, the revisionist, denied his signatures on Ex. A3, the transfer vouchers. But, merely because of it, it cannot be said that the case is not proved. PW2 Gangra Ram has categorically proved the signatures of the revisionist. 18. It has also been argued by learned Amicus Curiae that the revisionist has not been departmentally proceeded. It is argued that had the revisionist committed any misappropriation, he would have been proceeded in accordance with the relevant rules. 19. This argument does not make the impugned orders such that may warrant any interference. The cashbook, transfer vouchers and the cheques have been proved by the witnesses. The court below has appreciated the evidence in entirety, while recording the finding of conviction. The documents have been proved. Cashbooks and their entries have been proved. Cheques have been shown and proved. It has been proved that entrustment was made and the revisionist did not deposit the amount in the accounts. He misappropriated it. 20. In view of what is stated hereinabove, this Court is of the view that there is no error, illegality or impropriety in the impugned judgments and orders. Therefore, the revision deserves to be dismissed. 21. The revision is dismissed.