Dalip Singh vs State of Haryana

M.L. Singhal, J.

This Criminal revision is directed against the judgment and order dateD 25.10.1994, passed by Shri V.S. Malik, Additional Sessions Judge, Hisar, in Criminal Appeal No. 13 of 1991, whereby he has convicted Dalip Singhrevision petitioner, herein, under Section 408 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/ or in default to undergo further rigorous imprisonment for three months, thereby dismissing the appeal against conviction and affirming the sentence recorded against him, by Shri P.L. Ahuja, Additional Chief Judicial Magistrate, Hisar, vide order dated 27.2.1991.

Briefly stated the facts of the prosecution case are as under :

Dalip Singh was Secretary of Dobi Cooperative Credit and Service Society between 23.12.1975 to 6.10.1976. According to the prosecution, he had received a sum of Rs. 22,890.21 from different loanees on account of repayment of the loans by them and the amount of shares from the members of the society. He did not deposit the amount in the credit of the Society nor did he account for the amount and misappropriated the amount although he had been asked time and again by the Inspector, Cooperative societies Hisar, to deposit the amount due to the Society received by him from the loanees of the Society and the shareholders of the society. An Audit was carried out on the account of the Society under the orders of the Assistant Registrar, Co operative Societies, Hisar and during the course of audit, it was found that he had embezzled an amount of Rs. 22,899.21. Assistant Registrar, Co operative Societies, Hisar, wrote letter to the Senior Superintendent of Police, Hisar, Ex. PW.9/A requesting him to register the case against the accusedDalip Singh for having misappropriated funds of the Society. Case FIR No. 2 dated 6.1.1978 was registered against the accused under Section 409 of the Indian Penal Code at Police Station Sadar, Hisar. After investigation, accused was challaned under Section 409 of the Indian Penal Code. Shri Arjan Singh, Additional Chief Judicial Magistrate, Hisar, charged the accused under Section 409 of the Indian Penal Code, vide order dated 19.4.1983. Accused pleaded not guilty to the charge and claimed trial.

At the trial, the prosecution examined a number of witnesses namely Jai Singh, PW1, Hari Singh, PW2, Masuadi Ram, PW3, Bhagtu, PW4, Neki Ram, PW5 and others.

Accused when examined under Section 313 of the Criminal Procedure Code, denied the imputations appearing in prosecution evidence against him and stated that he was merely a helper; he had nothing to do with the receipt of loans from the loanees of the Society or any shareholders of the Society; Sube Singh was then Secretary of Dobi Cooperative Credit and Service Society; he was the nephew of Shri Amar Singh, Inspector, Cooperative Societies and he was implicated falsely by Shri Amar Singh, Inspector, Cooperative Societies with the object of shielding his nephew.

At the conclusion of the trial, Shri P.L. Ahuja, Additional Chief Judicial Magistrate, Hisar found the charge under Section 408 Indian Penal Code, proved against him and he found that an amount of Rs. 15,627.21 belonging to the Society had been misappropriated by him. He convicted him and sentenced him as indicated above.

Shri V.S. Malik, Additional Sessions Judge, Hisar, dismissed his appeal against conviction and sentence as indicated above.

It has been submitted by the learned Counsel for the petitioner that petitioner was not Secretary of the Dobi Cooperative Credit and Service Society and he was merely a helper. It was not his duty to receive monies on behalf of the Society nor did he receive any monies on behalf of the Society. In my opinion, this submission is not borne out from the evidence brought on the record by the prosecution. Though in revision, normally reappraisal of evidence is not undertaken, in this revision, reappraisal of evidence is being undertaken so that it could be found out whether there was any misapprehension of evidence resulting into miscarriage of justice.

It has been stated by PW7 Tulsi Ram that in the year 1977, he was Cashier of the Dobi Cooperative Credit & Service Society. On 22.9.1975, resolution was passed in the Resolution Book of the Society known as Dobi Pana Jakhar Cooperative Society. Resolution Ex. PW.7/B was signed by him. Dalip Singh was appointed Secretary of the Society.

PW8 Rameshwar stated that he was treasurer of the Dobi Cooperative Credit and Service Society in the year 1977. A resolution was passed on 22.9.1975 in the resolution book of the Society which is marked as ''A''. He signed that resolution. Besides Ramji Lal and Net Ram, Hardwari Lal signed this resolution. In this resolution, Ramji Lal was enshrined as President of the Society. Dalip Singh was present there and he also signed that resolution and vide resolution dated 22.9.1975, Ex. PW.7/B, Dalip Singh was appointed as Senior (Secretary) of another Society known as Pana Jakhar Cooperative Agricultural Society.

PW18, Net Ram stated that Dalip Singh was appointed as Secretary to the Dobi Cooperative Credit and Service Society through resolution. If Dalip Singh was merely helper and not an officebearer of the Society, his signatures could not have been there in the resolution.

The Assistant Director, Forensic Science Laboratory, Madhuban, compared the alleged signatures of Dalip Singh on the resolution with his specimen signatures obtained in the Court and the opinion was that the signatures tallied. If Dalip Singh was merely a helper, his signatures was not needed on the resolution. Dalip Singh has nowhere tried to explain the circumstances under which his signatures came to appear on the resolution book of Dobi Co operative Credit and Service Society. There can thus be no manner of doubt that Dalip Singh was the Secretary of Dobi Cooperative Credit and Service Society.

Sh. Amar Singh, Inspector, Cooperative Society Hisar, PW10 stated that he audited the accounts of the Marketing Cooperative Society and Dobi Co operative Credit and Service Society under the orders of the Assistant Registrar, Cooperative Societies and as per report Ex. PW.9/E, on 23.12.1975, Dalip Singh had received an amount of Rs. 300/ from one Bija. He had received Rs. 300/ from the Hanuman. At page 27 of the Cash Book, he entered the amount being Secretary of the Dobi Cooperative Credit and Service Society and as Secretary he was authorised to maintain the accounts of the Society. Amar Singh, Inspector identified the signatures of Dalip Singh in the entries Ex. PW.10/A and Ex. PW10/B in the cash book of the Society. On 31.1.1976, Dalip Singh received Rs. 1,310/ from one Bir Singh and entered that amount in the cash Book against entry Ex. PW.10/D. On 15.1.1976, Dalip Singh received the amount of Rs. 236/ from Bhagirath and he entered it vide entry Ex. PW.10/C. On 23.2.1976 a sum of Rs. 7,151.21 vide entry Ex. PW.10E was due from Dalip Singh. Mange Ram deposited Rs. 580/ against receipt Ex. PW.10/F but Dalip Singh instead of allowing that amount to be credited in the account of Mange Ram, appropriated that amount to his own account. On 23.2.1976, one Mohan Lal gave Rs. 350/ to the accused for deposit against receipt Ex. PW.10/G, Dalip Singh did not show the amount as deposited in the accounts. Similarly, there ware shareholders who deposited the amount in the accounts of the Society. Dalip Singh instead of allowing the amount to be deposited in the credit of those shareholders, allowed that amount to be appropriated to his own account. He has stated about the various acts of embezzlement committed by the accused. Dalip Singh received monies from 23 loanees/shareholders of the Society. He made entries in their respective pass books but did not credit the amount in their respective accounts. He put his own signatures in their pass books in token of the receipt of the respective amounts (Ex. P.1 to P.22).

Jai Singh, PW.1 stated that on 2.2.1976, he gave Rs. 1,410/ to Dalip Singh, accused i.e. Rs. 1,200/ as principal and Rs. 110/ as interest and Rs. 100/ as his share money. Dalip Singh made entry in his pass book regarding the receipt of that amount.

Hari Singh, PW2 stated that in 1976, he gave Rs. 376/ to Dalip Singh as share money. Dalip Singh made an entry in his pass book with regard to receipt of that amount Ex. P.2.

Masuadi, PW3 stated that he was member of the Dobi Cooperative Credit and Service Society upto 16.6.1976. He gave Rs. 900/ to Dalip Singh towards the loan amount. Dalip Singh made entry in his pass book Ex. PW.3/A and he misappropriated that amount of Rs. 900/.

Bhagtu, PW4 stated that in the year 197273, he was member of the Society and gave Rs. 108/ to the accused vide entry in pass book Ex. PW.4/A.

Neki Ram, PW5, Stated that about 10 to 12 years ago, he handed over Rs. 485/ to the accusedDalip Singh, as loan due to him from the Society. Accused made an entry in his pass book Ex. PW.5/A.

Pala, PW11 stated that he gave Rs. 100/ to the accused towards loan due to the Society. Dalip Singh made an entry in his pass book but did not deposit that amount in his account. Dalip Singh thus misappropriated Rs. 100/ belonging to the Society.

PW14, Chander Singh, Senior Accountant, Cooperative Bank, Hisar stated that Mohan Lal etc. had deposited the amount vide receipts PW.10/K, PW.10/D, PW.10/I, PW.10/F and he signed these receipts as Manger.

PW15 Mohan Lal, Executive Officer stated that on 1.1.1976, he deposited Rs. 1,500/ in the Bank and an amount of Rs. 500/ each was meant to be deposited in the accounts of his brothers Chet Ram and Net Ram. On 23.2.1976, he deposited the amount of Rs. 350/ each in respect of Manphool and Neki Ram and receipts were handed over by him to Dalip Singh. The amount was deposited was with the accused. He did not show the amount as deposited in the accounts as it was embezzled by him.

PW16 Ran Singh stated that he had taken a loan of Rs. 1,050/ from the Cooperative Society which was deposited with the accused. AccusedDalip Singh made entries in the pass book but embezzled that amount. There is thus ample evidence about the various amounts received by the accused from the loanees of the Cooperative Society and the shareholder of the Cooperative Society but did not credit that amount in the credit of the Cooperative Society. AccusedDalip Singh was Secretary of Dobi Cooperative Credit and Service Society. When entrustment stood proved it lay upon the accused to prove the discharge thereof. Accused has failed to account for the amount received from the loanees/shareholders of the Society and entrustment of the amount stood proved by the oral testimony of witnesses coupled with the entries made by the accused in their pass books and the absence of the corresponding entries in the account of the Society with the Bank.

In my opinion, the learned Magistrate justifiably found the charge proved against the accused and convicted and sentenced him. Learned Additional Sessions Judge justifiably dismissed his appeal against conviction and sentence. Accused was a servant of the Cooperative Society. Money was entrusted to him as a servant of the Cooperative Society and as such fiduciary relationship was created between him and the Cooperative Society.

Accused was put up on trial in the year 1983, first information report was registered in the year 1978. He was convicted and sentenced by the Magistrate in the year 1991. His appeal was dismissed by the Additional Sessions Judge, Hisar in the year 1994. He has been in revision before this Court since the year 1994. He has thus been facing agonies and uncertainties of this criminal trial for the last 1718 years. It would be travesty of justice if the accused is sent to jail now for an offence committed by him about 20 years ago. In my opinion, ends of justice would adequately be met if the accused is called upon to compensate the Society qua the amount he has been benefited by.

Keeping in view that the petitioner has been facing agonies and uncertainties of this criminal trial for the last about 20 years, it is not felt desirable to send him to jail. Conviction recorded against him under Section 408 of the Indian Penal Code is maintained. Sentence of imprisonment passed upon him is set aside and he is called upon to execute bonds under the Probation of Offenders Act, 1958, in the sum of Rs. 5,000/ for a period of one year whereby he will keep good behaviour and peace and he is further called upon to deposit a sum of Rs. 50,000/ in the account of the Society in five equated instalments of Rs. 10,000/ each, half yearly. He shall deposit first instalment any time between March 15 to March 31, 1997, second instalment any time between September 15 to September 30 and further on. In case, he fails to deposit any two instalments within the stipulated time, he shall undergo the sentence passed upon him by the Magistrate and maintained by the Additional Sessions Judge, Hisar. In Ranjha Ram v. State of Punjab, 1986(2) RCR 106 , this Court had allowed the benefit of provisions of Probation of Offenders Act to Ranjha Ram where Ranjha Ram who was SecretarycumSalesman of the Cooperative Agricultural Society, had embezzled the amount of Rs. 15,000/ belonging to the Society, by directing him to pay Rs. 15,000/ as compensation to the Society.

Subject to this variation, in the matter of sentence, as is suggested above, this criminal revision fails and is dismissed.