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2023 DIGILAW 529 (RAJ)

Omendra Dutt Sharma v. State of Rajasthan

2023-02-15

NARENDRA SINGH DHADDHA

body2023
ORDER : 1. Appellant has filed this appeal challenging the judgment and order dated 11.10.1985 passed by the learned Special Judge, C.B.I., Rajasthan, Jaipur in Criminal Case No. 16/82, whereby appellant was convicted and sentenced for the offence(s) punishable under Sections 409, 477 IPC and Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947 as under: U/s 409 IPC Three years rigorous imprisonment with a fine of Rs.2,000/- in default of payment of fine to undergo one year's rigorous imprisonment. U/s 477 IPC Two years rigorous imprisonment with a fine of Rs.500/- in default of payment of fine to undergo six months' rigorous imprisonment. U/s 5 (1) (C) read with Section 5 (2) of P.C. Act, 1947 Three years rigorous imprisonment with a fine of Rs.2,000/- in default of payment of fine to undergo one year's rigorous imprisonment. All the sentences were ordered to run concurrently. 2. Facts of the case are that the accused appellant was posted as Sub post Master in Sub Post Office Bada Pradampura from June 1979 to December 1981. The case of the prosecution is that during this period the appellant committed embezzlement of Rs.12358.60/- as number of persons gave the amount to him for depositing the same in R.D. and saving accounts on various occasions but the appellant neither deposited the same nor made entry in the relevant books of the post office and committed criminal breach of trust. On that basis, Case Nos.16/82, 17/82 and 18/82 were registered against him. Vide order dated 26.09.1984, the case Nos.16/82, 17/82 and 18/82 were clubbed together. After completing the investigation, charge-sheet was filed against the appellant for the offence under Sections 409, 477 IPC and Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947. 3. After hearing the arguments, charges were framed against the appellant- Omendra Dutt Sharma for the offence under Sections 409, 477 IPC and Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947. 4. Accused appellant denied the charges levelled against him and claimed for trial. 5. In order to prove its case, prosecution examined 46 witnesses and produced 547 documents. Appellant was examined under Section 313 Code of Criminal Procedure, 1973. He produced receipts Ex.D1 to Ex.D4 in support of his case as documentary evidence. 4. Accused appellant denied the charges levelled against him and claimed for trial. 5. In order to prove its case, prosecution examined 46 witnesses and produced 547 documents. Appellant was examined under Section 313 Code of Criminal Procedure, 1973. He produced receipts Ex.D1 to Ex.D4 in support of his case as documentary evidence. The learned trial court vide its judgment dated 11.10.1985 convicted and sentenced the appellant as indicated above. Hence, this appeal. 6. Learned counsel for the appellant submits that learned trial court wrongly convicted and sentenced the appellant under Sections 409, 477 IPC and Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947. Learned counsel for the appellant also submits that learned trial court had not read the prosecution evidence in right perspective. Learned counsel for the appellant also submits that he took the money from the depositors and deposited Rs.12850/- vide receipts Ex.D1 to Ex.D4. The depositors have already received the amount which was given by them to the appellant. Thus, there is no loss to any person. Learned counsel for the appellant also submits that appellant is about 70 years of age. He is facing the criminal case since the year 1979. He does not want to challenge the conviction of the appellant. So, while maintaining the conviction, substantive sentence awarded to him vide judgment impugned be set aside. He, in support of his submission, relied upon a judgment of this Court in case of Ram Lal v. The State of Rajasthan, 1982 (7) R.Cr.C., 120. 7. Learned Public Prosecutor did not seriously oppose the prayer in view of life of the case and age of the accused-appellant. 8. Heard. Considered. 9. The accused-appellant, who at present, is aged about 70 years, is facing the instant criminal case for last more than 43 years. The allegation against him of embezzlement of Rs.12358.60/- for which he has already deposited Rs.12,850/-. 10. In identical circumstances, this Court has, in case of Ramlal (supra), held as under: “In the result, the appeal is partly allowed. The sentence of imprisonment awarded to the accused appellant both under Section 161 IPC and 5 (1) (d) read with 6 (2) Prevention of Corruption Act are set aside. The accused appellant is sentenced to a fine of Rs. The sentence of imprisonment awarded to the accused appellant both under Section 161 IPC and 5 (1) (d) read with 6 (2) Prevention of Corruption Act are set aside. The accused appellant is sentenced to a fine of Rs. 600/- under section 161 IPC and also to a fine of Rs.600/- under Section 5/ (1) (d) read with section 5 (2) of the Prevention of Corruption Act. He shall undergo simple imprisonment for three months each in default of payment of fine on both the counts. Two month's time is allowed to deposit the fine in the trial Court. In case the amount is not deposited within the aforesaid period, the trial Court shall take necessary steps to serve out the sentences awarded to the accused in default of payment of fine.” 11. In view of the aforesaid, the appeal is partly allowed. While maintaining the conviction of the appellant, substantive sentence of imprisonment awarded to him under Sections 409, 477 IPC and Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947 is set aside. The accused-appellant is sentenced to a fine of Rs.2000/- under Section 409 IPC, to a fine of Rs.500/- under Section 477 IPC and also to a fine of Rs.2000/- under Sections 5 (1) (C) read with Section 5 (2) of Prevention of Corruption Act, 1947. Two months' time is allowed to the appellant to deposit the fine in the learned trial Court failing which it shall take necessary steps to serve out the sentences awarded to the accused in default of payment of fine. 12. The judgment and order dated 11.10.1985 passed by the trial court stands modified as indicated above.