Dalip Singh vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—Dalip Singh son of Kanha Ram, who was posted as Store Keeper at Farmers Service Center, Hisar, belonging to Haryana Agro Industries Corporation Limited. Petitioner was named as accused in case FIR No. 151 dated 24.4.1985 registered at Police Station City, Hisar, under Sections 406 and 409 IPC.

The Haryana Agro Industries Corporation Limited is Haryana State Government Undertaking. D.S. Arya, Assistant Engineer, Haryana Agro Industries Corporation, posted at Farmers Service Center, Hisar, addressed a communication Ex.PW.6/A to the Station House Officer, Police Station City, Hisar. The communication so addressed, read as under:

Subject: Registration of Police case against Sh. Dalip Singh, Store keeper.

Sir,

The Farmers Service Center at Hissar sells Fertilizers and seeds and such other things to the farmers. All the material and goods at the center are in the charge of the Store Keeper who is responsible for their safety and custody.

On 22.4.85 Sh. Darshan Lal, Section Officer came on as surprise visit for the checking of the stores of this center. He alongwith Sh. Dalip Singh, Assistt. Accountant and myself did start checking and counting. On that date work relating to the checking of fertilizer bags, wheat seed bags, bathing tubs, flour bins and Metallic bins was completed. The actual stock available in the center and sale center Agro Mod was counted and was compared with the stock register and the Financial Ledger of the Center. Since the stock register was not complete, the stock position was ascertained from the financial Ledger. The following shortages were detected:

Fertilizer 31 bags @ Rs. 107/50 3332-50

M-Bins

Size Qty Rate Amounts

10 qtls. 25 645/- 16125-00 7.5 qtls. 48 540/- 95920-00 5.6 Qtls. 31 365/- 11315-00 3.5 Qtls. 35 290/- 10150-00 -------- 63510-00 S.T. @ 8% 5080-80 S.C. @ 2% 101-60 -------- 68592-40 -------- 3. Wheat seed 22 bags @ 140/- 3080-00

Tub and flour bin one 180-00 each tentative price Rs. 90/- each (price not fixed so far)

Grand Total 75284-90

It is very clear that Shri Dalip Singh has embezzled a sum of Rs. 75,284-90 and committed a breach of trust willfully and intentionally with a view to defrauding the corporation and has misappropriated the money. A police case may be registered against him.

In addition, it may be mentioned that only 244.84 part of checking has been completed because on 23-4-85 Shri Dalip Singh absented himself from the office and in his absence, the checking of remaining stores such as G.P. Sheet, spare parts etc. could not be done. Under your own supervision checking of the remaining articles may be got done to find out as to whether he has embezzled any more articles. I have obtained the permission of my Managing Director to get the case registered. Shri Dalip Singh is serving at Hissar and resides in city near bus stand.

On basis of this communication, formal FIR was registered. Subsequently another communication Ex.PW.6/C was sent on 29.6.1985. In this, additional information was given and it was stated that after verification, the amount of embezzlement has increased to the extent of Rs. 1,36,622.48 ps., details of which were given in Annexure to Ex. PW. 6/C. Annexure was exhibited as Ex.PW.6/D.

After the investigation of the complaint made, report u/s 173 Cr.P.C. was submitted.

The Investigating Agency, in the report u/s 173 Cr.P.C., came to the conclusion that during the year 1982-85, petitioner had embezzled a total sum of Rs. 1,44,382.53 ps. Besides this, the Investigating Officer came to conclusion that as per audit report, 200 bags of Urea were sent by Farmer Service Center, Bhiwani to the Store Keeper, Farmer Service Center, Hisar. There was no entry of these bags recorded in the stock register and sale proceeds of 200 bags were also misappropriated by the petitioner, in February 1985. Furthermore, petitioner, in his capacity as Store Keeper, had deducted 88 bags of Urea illegally and embezzled the sale proceeds. Since the embezzlement pertained to different periods, separate challans were filed. In the present case, challan pertain to the period 1984-85, and the embezzlement alleged was of Rs. 1,15,033.25 ps.

On 23.4.1987, petitioner was charged by the Court of Judicial Magistrate Ist Class, Hisar, for having committed an offence punishable u/s 408 IPC as during the period from 1982-83 being a Store Keeper of Haryana Agro Industries Corporation, Farmers Service Center, Hisar, he was entrusted with fertilizers, seeds etc. amounting to Rs. 1,15,033.25 ps. which he had embezzled.

The petitioner pleaded not guilty and claimed trial.

Prosecution examined Hari Ram as PW.1, D.S. Arya as PW.2, Sohan Lal as PW.3, and Jagdish Khanjea as PW.4.

The statement of accused was recorded u/s 313 Cr.P.C. He pleaded false implication. However, he admitted that he was appointed as Store Keeper in Haryana Agro Industries Corporation Limited, Farmers Service Center at Hisar.

The trial Court, in para Nos. 15 to 24 of its judgment, on basis of evidence led by the prosecution, dealt with the modus operandi practiced by the petitioner and the embezzlement caused.

Mr. Gunjan Rishi, Advocate, appearing for the petitioner, has read these paragraphs and has urged that these findings cannot be relied against the petitioner as the same are based upon stock register, bills and the ledger book. No Handwriting Expert was examined to clinch the issue and prove that these documents were in the handwriting of the petitioner. Counsel further submitted that merely on the basis of Audit Report, and oral testimony, conviction of the petitioner could not be recorded. Therefore, the same cannot be sustained. It was further submitted that goods were stored at an open place which was accessible to all and sundry and, therefore, petitioner has no physical control over the goods which were stacked in the open place. Therefore, for any pilferation, petitioner cannot be held liable.

Both these arguments were rejected by the trial Court rightly. Petitioner has not denied his appointment as Store Keeper. During the course of his employment, goods were entrusted to him. If there was any pilferation it would have come to the notice of the petitioner and he would have reported the matter to the authorities. The findings of the trial Court have been duly affirmed by the lower Appellate Court. No patent illegality or irregularity has been brought to my notice. There is no misreading of evidence. Therefore, interference of the revisional Court is not warranted and the findings, recorded by the two Courts below regarding the guilt of petitioner, are discernible.

Counsel for the petitioner, in alternative, has also stated that the trial Court has sentenced the petitioner to undergo simple imprisonment for two years and to pay a fine of Rs. 1,000/- for offence u/s 408 IPC. In default of payment of fine, petitioner was ordered to undergo simple imprisonment for three months. Counsel for the petitioner has, however, failed to point out fate of Criminal case Nos. 769 and 770, both dated 9.10.1985 in which petitioner was also convicted and the sentence was ordered to run concurrent with the present case. However, the present case has arisen out of Criminal Case No. 771 dated 9.10.1985 registered in the Court of Judicial Magistrate Ist Class, Siwani at Hisar.

Against the judgment in this case, petitioner has filed Criminal Appeal No. 5 of 1994. The same was dismissed. Conviction was upheld and sentence was maintained.

This Court cannot become oblivious of the fact that in the present case, FIR was registered in the year 1985. Petitioner has already suffered a protracted trial of about 25 years. The statement of accused u/s 313 Cr.P.C. was recorded in the year 1993, at that time age of petitioner recorded is 46 years, therefore, petitioner is now aged about 63 years.

Taking into consideration the fact that petitioner, is now 63 years of age, and has suffered mental pain and agony of protracted trial, this Court is of the view that ends of justice will be fully met in case sentence awarded upon the petitioner is reduced from two years simple imprisonment to nine months simple imprisonment. However, the sentence of fine is maintained.

With the modification in the sentence awarded upon the petitioner, present revision petition is disposed of.