In Re : Sundararaj

K.M. Natarajan, J.—This revision is directed against the judgment of the Additional Sessions Judge, Ramanathapuram at Madurai in Crl.

App. No. 22 of 1979, modifying the judgment of the Sub-Divisional Judicial Magistrate, Srivilli-puthur, in C.C. No. 45 of 1978 convicting the

revision Petitioner first accused and the second accused under Sections 409, 477A, 467 and 471 read with 34 I.P.C., and sentenced the first

accused to undergo R.I. for two years for each offence, and the second accused to undergo R.I.., for one year for each offence, the sentences to

run concurrently.

The brief facts as disclosed by the prosecution in their evidence are as follows: The revision Petitioner first accused was the President of

Chathrapatti Co-operative Society, the second accused was its Manager and the third accused was its Secretary. On the complaint received from

the Public, P.W. 1, the Deputy Registrar of Co-operative Societies u/s 65 of the Co-operative Societies Act directed P.W. 2 under Ex. P1 to

conduct an enquiry. P.W. 2 submitted his report (Ex.P2). During his enquiry, he noticed that though a sum of Rs. 12,351.72 was remitted into the

State Bank of India, Rajapalayam Branch as evidenced by Ex. P32 and remittance receipt, Ex. P9 the corresponding entry relating to the

transaction (Ex. P11) in the cash Book (Ex. P10) was corrected as Rs. 13,351.72. Thus, the accused had committed the offence of

misappropriation by falsifying the accounts. Thereupon, P.W. 1 gave a complaint Ex. P3 to the police. P.W. 6, the S.I. of Police registered a case

and examined the witnesses. P.W. 7, the Inspector of Police laid the charge-sheet against the accused on 28th April, 1977 after completing the

investigation.

The prosecution examined 7 witnesses and marked 35 exhibits on their side. The first accused denied the accusation levelled against him and

stated that he has not made any correction, he had not misappropriated any amount and it was only the second accused who was responsible for

the custody of the cash and he has made the correction of the impugned entries. On the other hand, the plea of the second accused is that it was

only the first accused who is the custodian of the cash and the property of the Society as per the bye-law and he has made the necessary

correction and misappropriated the amount. The third accused also denied his complicity in the crime.

The learned Magistrate acquitted the third accused, but convicted accused 1 and 2 under Sections 409, 477A, 467 and 471 read with 34

I.P.C, and sentenced them as mentioned above. On appeal, the learned Additional Sessions Judge modified the conviction and sentence of the trial

court and convicted accused 1 and 2 u/s 477A read with Section 34 I.P.C.? (two counts) and sentenced each of them to undergo imprisonment till

the rising of the court and to pay a fine of Rs. 150 in default to undergo R.I., for 6 months under each count. Aggrieved by the said order, this

revision is filed by the first accused.

Learned Counsel appearing for the revision Petitioner contended that the finding of both the courts below is that it is only the second accused

who has remitted the amount into State Bank has written the relevant accounts and has made correction in the entries as per his statement (Ex.

P14) before the Co-operative Sub-Registrar and the evidence of the prosecution witnesses, that it Was only on the complaint given by the revision

Petitioner P.W. 1, ordered enquiry, that there is no evidence to connect the Petitioner with the second accused, that he was not a patty to the

falsification of accounts, that he was convicted only on the ground that he being the President of the Society, he is the custodian of the cash and

other properties of the Society as per Bye-law 23(a) of the Society and he is not liable for a any criminal action, that the allegation levelled against

him is not capable of sustaining any conviction, that the Courts below have made a wrong approach in this case which led to a gross injustices to

the revision Petitioner and that the interference of this Court is called for in this revision for the prevention of the miscarriage of justice .

Learned Public Prosecutor argued that the courts below were correct in arriving at a finding that the Petitioner being the President of the Society

was responsible for the cash and other assets of the Society and that even though the corrections were made only by the second accused, the

revision Petitioner is also equally liable for the criminal action and hence no interference is called for.

Learned Counsel for the revision Petitioner took me through the judgments of the courts below and the relevant oral and documentary evidence

adduced before the trial Court.

The trial Court has observed that as per revolution (Ex.P31), the second accused is also held liable for the cash on hand and the impugned

entries were made only by him, which he has admitted in his statement Ex. P14. Though the lower appellate Court also arrived at a finding that

from the evidence of the prosecution witnesses and the statement given by the second accused, it is clearly established that the second accused has

made the corrections in the entries, it held that the revision Petitioner is also equally liable without any legal evidence but only on the presumption

that both the accused might have joined together, and corrected the entries and misappropriated the amount.

Both the Courts below failed to see that none of the witnesses cited by the prosecution implicates the first accused, viz., the President of the

Society either directly or indirectly with the offence. It is admitted by P.W. 2, that the revision Petitioner was in affluent circumstances, that when

he became the President of the Society, he contributed his money for carrying out the affairs of the Society and, that a personal register was

maintained relating to his transactions and if it is produced, it would disclose the amounts advanced by the Petitioner. His further evidence is that

the second accused was not available at the time of the inspection of the accounts of the Society, and it was only his father who gave the key for

the iron safe. P.W. 1 was not able to say whether the first accused signed Exs. P. and P. 11 either before or after the corrections are made. No

doubt the Petitioner at the wont would be liable in civil action in view of the liability fixed under Bye-law 23(a) of the Society. But he cannot be

held liable for the offence of misappropriation or falsification of accounts in a criminal action.

Learned Counsel invited my attention to the decision of M.N. Moorthy, J., in Viswanthan v. State, Superintendent of Police 1982 L.W. (Cri)

70, wherein the learned Judge quashed the charge against the President of the Society under Sections 409 and 477A, I.P.C., read with Section

34, I.P.C, on similar allegations and held that the materials available on the side of the prosecution have not implicated the Petitioner therein in any

manner and that even if the entire allegations in the F.I.R., are admitted and the statements u/s 161, Code of Criminal Procedure, are taken to be

true in toto., it cannot be said that a case can be made out against the Petitioner for any of the charges framed. The decision cited above is on all

fours applicable to the facts of this case.

For the foregoing reasons, I feel that in the broad interest of justice, the conviction and sentence of the revision Petitioner are not sustainable.

Thus, the revision petition is allowed. The conviction and sentence imposed on the revision Petitioner are set aside and he is acquitted. The fine

amount, if any paid shall be refunded to the revision Petitioner forthwith.