Gulzar Singh vs State of Haryana

M.L. Singhal, J.

Gulzar Singh (petitioner herein) was working as Secretary in Chhachhrauli Cooperative Credit and Service Society Limited, Chhachhrauli (in short the society). Audit was carried on the accounts of this society. As a result of that audit, he was found to have embazzled a sum of Rs. 1,62,513.10 during the period 1.7.84 to 30.6.85 by tampering with the record of the society, Shri Ravinder Nath. Assistant Registrar, Cooperative Societies, Yamuna Nagar made complaint Ex.PW 2/A to the Superintendent of Police, Ambala with a view to registering case against him. It was also found that he had embezzled a sum totaling Rs. 3,89,767.10 during the period 1.2.83 to 15.5.85. This embazzlement came to light during the audit of the accounts of the society. Case FIR No. 51 dated 2.5.1986 was registered under Section 409 IPC. Shri Shambhu Nath, Inspector Vigilance investigated the case. During investigation, he found that he committed embezzlement by effecting tampering in the record of the society with regard to the embezzlement of a sum of Rs. 1,62,513.10 accused was challaned (in Criminal case No. 304/191 of 1987). With regard to the embezzlement of Rs. 2,27,254.00 he was challaned in criminal case No. 303/193 of 1987.

Accused was tried separately in both these challans though they are the offshoot of the same FIR No. 51 (ibid) of PS Chhachhrauli and could he tried at one trial. As the transactions covering embezzlement extended over a period of more than one year and so that there was no jumbling of facts and inconvenience of trial to the accused, he was tried separately.

In Criminal Case No. 303/193 of 1987 accused was charged under Section 409 IPC for having embezzled Rs. 2.27,254.00 entrusted to him in his capacity as Secretary of the society. He pleaded not guilty to the charge and claimed trial. At the conclusion of the trial, he was convicted under Section 408 IPC. He was sentenced to undergo R.I. for 3 years and to pay fine of Rs. 5,000/ or in default to undergo further RI for 9 months by Judicial Magistrate First Class, Jagadhari vide order dated 26.4.1996. Accused went in appeal to the Court of Session. Additional Sessions Judge, Jagadhari dismissed the appeal vide order dated 12.11.1998. Gulzar Singh has come up in Crl. Revision No. 1390 of 1998 to this Court against the order of Additional Sessions Judge, Jagadhari dismissing his appeal thereby maintaining the conviction and sentence recorded against him by Judicial Magistrate First Class, Jagadhari vide order dated 25.4.1996.

In Criminal Case No. 304/193 of 1987 also, the accused was convicted and sentenced to undergo RI for a period of 3 years and to pay fine of Rs. 5,000/ or in default of payment of fine to undergo further RI for 9 months by the learned Magistrate. His appeal against the conviction and sentence was also dismissed by the learned Additional Sessions Judge, Jagadhari. He has come up in Crl. Revision No. 1411 of 1998 whereby he is assailing the conviction and sentence passed upon him by the learned Additional Sessions Judge, Jagadhari. Since the same question of law and fact is involved in both these revisions, I propose to dispose of both these revisions through this common order which shall govern both these revisions.

It was submitted by the learned counsel for the petitioner that there is no evidence that any amount was entrusted to the accused petitioner and if there is no evidence about the entrustment of any amount to the accused, no question of embezzlement would arise. It was submitted that none came forward to say that he gave such and such amount to the accused. It was submitted that entrustment is gravamen of the charge of embezzlement and without the proof of entrustment, embezzlement cannot arise. It was submitted that the charge of embezzlement was sought to be proved only by examining the auditor who audited the accounts of the society.

Suffice it to say, the accounts of the society were audited for the period 1.7.1984 to 30.6.1985. A sum of Rs. 1,62,513.10 was found to have been embezzled by the accused. In the cash book there was a closing balance of Rs. 10,106.10 on 13.5.1985 with the accused. On 14.5.1985, however, the balance pending showed this sum to be Rs. 26.01 only and there was thus misappropriation of Rs. 10,080/. Similarly, on 14.5.1985, total on receipt side was Rs. 1,26,523/ but was shown as Rs. 11,223/. There was thus embezzlement of Rs. 1,15,300/. Similarly, there are other instances given in the audit report showing embezzlement on his part. He was entrusted with the duty of maintaining the accounts of the society in the capacity of Secretary of the Society. It was a cooperative credit and service society. Shri Mohammed Nazir who audited the accounts of the society stated that he went through the accounts of the society for the year 198485 and found a sum of Rs. 1,62,513.10 to have been embezzled by the accused for the period 1.7.1984 to 30.6.1985. Gurdial Ram PW4 stated about the misappropriation of an amount of Rs. 29,528.10 and Rs. 2,945/. Amount of Rs. 29,578/ was received by Gurdial Ram as cash due to sale proceeds of some other goods during the period 25.2.1985 to 11.4.1985. He stated that he had handed over the amount to the accused. Accused did not account for this amount and misappropriated this amount. Entries made on pages No. 27 to 34 of the daily sale register P2 show that consumer goods of the values of Rs. 29,528.10 had been sold by Gurdial Ram Salesman during the period 25.2.1985 to 11.4.1985 and he had handed over the sale proceeds to the accused. Gurdial Ram had obtained the signatures of the accused. Gurdial Ram also stated about the embezzlement of Rs. 2,945/ which are the sale proceeds of 9 quintals and 30 kgs. of paddy. Said paddy had been purchased through voucher No. 279 dated 30.4.1985 by the society from Haryana Seeds Corporation Limited, Yamuna Nagar. This paddy was not, however, found credited in the records of the society nor its sale proceeds accounted for in any of the record of the society. There was definite evidence showing the embezzlement of Rs. 1,62,513.10 by the accused belonging to the society which had been entrusted to him as Secretary of the society. Rent for the godown which was on hire with the society was shown to have been paid to Shri Dev Raj Gupta but he stated that Rs. 210/ was never paid to him. Rs. 210/ had been taken out of the account of the society but not paid to the owner of the godown but misappropriated by the accused. Similarly, there is ample evidence regarding the misappropriation of other items of consumption reflected in the audit report totalling Rs. 1,62,513.10.

In Criminal case No. 303/193 of 1987 also, there is definite evidence about the embezzlement of Rs. 2,27,254/ by the accused. Shri Mohammad Nazir who audited the accounts of the society for the year 198384, 198485 stated that in the year 198384, he detected embezzlement to the tune of Rs. 2,27,254/ committed by the Secretary of the society and he has set out the details of embezzlement in the audit report at page No. 51 of the audit report. In the audit report, there are three irregularities namely he has shown the income of the society as Rs. 9,595/ in place of Rs. 11,595/. He had misappropriated an amount of Rs. 2,000/. He had shown expenses of the society to the tune of Rs. 16,500/ instead of Rs. 11,500/ and Rs. 17,500/ instead of Rs. 12,500/ and thus misappropriated amount of Rs. 5,000/ each through each entry. He misappropriated a sum of Rs. 5,000/ on 18.1.1984 by showing a sum of Rs. 17,000/ as expenditure of the society instead of Rs. 12,000/ at page No. 54 of the cashcumday book. In the judgments of the Court below, each item of embezzlement said to have been committed by the accused has been dealt with minutely.

In my opinion, the learned Magistrate reached the conclusion finding the accused guilty on appreciation of evidence which cannot be said to be unjust or unreasonable. In both the challans, the charge of embezzlement stood proved against the accused. Learned Additional Sessions Judge reappraised the evidence. He went through the evidence over again, appreciated it and came to the same conclusion. Finding of fact recorded by the learned Additional Sessions Judge on reappreciation of evidence concurring with the finding of fact arrived at by the learned Magistrate after appreciation of evidence cannot be said to be unjust or unreasonable.

Faced with this position, learned counsel for the petitioner submitted that the learned Courts below have found the charge of embezzlement proved against the accused merely on the evidence of Assistant Director, Documents, FSL Madhuban according to whom the specimen signatures of the accused taken in Court tallied with his disputed signatures on the various documents forming part of the chain of the transactions of embezzlement. It was submitted that the report of the Assistant Director, Documents, FSL Madhuban has to be ruled out of consideration because the Court could not compel the accused to give his specimen signatures before it and the police could not request the Magistrate to take the specimen signatures of the accused in his presence and arrange their comparison with his disputed signatures as this exercise is violative of the provisions of Article 20 of the Constitution of India. It was submitted that the accused could not be compelled to be a witness against his ownself. In State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791, the Hon''ble Supreme Court observed that "though a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, the language of Section 73 of the Evidence Act does not enable the Magistrate to give such a direction when the case is still under investigation. The section contemplates pendency of some proceedings before a Court. It does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court."

Suffice it to say, when the accused was taken to the Magistrate for his specimen signatures being taken, he could refuse to furnish his specimen signatures to the Magistrate. If he had refused to give his specimen signatures to the Magistrate, inference might have been drawable against him that if he had given his specimen signatures those might have tallied with his signatures appearing in the incriminating record. If the accused had refused to furnish his specimen signatures to the Magistrate on the request of the police, the prosecution could resort to the proving of his signatures on the incriminating record through any of the modes suggested in Sections 45 to 47 of the Evidence Act.

The Magistrate has an important role to play when the case is in the stage of investigation. It is the Magistrate who is charged with the duty of supervising the investigation. It is the Magistrate who is vested with various powers enshrined in the Criminal Procedure Code which are aimed at furthering the cause of investigation. If the Magistrate permitted the specimen signatures to be taken in his presence without the accused raising any protest against this course being taken, I do not think there is any violation of the provisions of Article 20 of the Constitution of India.

For the reasons given above, I am of the opinion that there is no reason to tinker with the order of the learned Additional Sessions Judge, Jagadhari maintaining the conviction of the accused and the sentence imposed. Faced with this position, learned counsel for the petitioner submitted that the petitioner should have been released on probation of good conduct as if he is not released on probation of good conduct, his family will be rendered destitute and exposed to starvation. Accused cannot be released on probation of good conduct as the amount proved to have been embezzled by him runs into lacs. Accused has shown scant regard for probity and good conduct. Probity and good conduct are the pillars on which the foundation of an edifice of trust rests. Keeping, however, in view that the accused is a familiar man and if he is sentenced to a longer term of imprisonment, his family will remain exposed to destitution and starvation for that a long period, I think some leniency should be shown to him in the matter of sentence. So, the sentence imposed upon him is reduced to RI for 2 years in both the cases. Sentence of fine shall remain intact in both the cases. In default, he shall undergo further RI for 6 months. Substantive sentences passed in both these cases shall run concurrently with each other.

Both these revisions are disposed of accordingly.

Revision dismissed.