Karnail Singh vs State of Punjab

M.M. Punchhi, J.

The facts giving rise to this revision petition are within a narrow compass.

The petitioner was the President of Sohian Kalan Cooperative Agricultural Service Society (hereinafter referred to as the Society). While as President, he received a sum of Rs. 3.200/ from Swinder Singh PW 2 and his wife Smt. Mohinder Kaur against loan taken by them and he issued a receipt. This aspect of the prosecution case is not disputed by the petitioner, who has rather admitted it. Now the petitioner, according to the prosecution, deposited only a sum of Rs. 775/ against the name of Swinder Singh and Rs. 660/ against the name of Mohinder Kaur; in all Rs. 1,435/ with the Society and he did not deposit the remaining amount of Rs. 1165/. This amount was embezzled by the petitioner, as alleged by the prosecution. Accordingly, a complaint was made by the members of the Society and an inquiry was held by the Auditors of the Society and these facts were found to be correct. Thereupon, the Deputy Registrar Cooperative Society, Amritsar, through letter, Exhibit PB, got registered a case against the petitioner which after investigation was put up for trial. The prosecution was able to prove its case against the petitioner, inasmuch as entrustment was concerned, not only by its own evidence but by the admission of the petitioner. With regard to the misappropriation, the petitioner pleaded that he had on 30th June, 1973 deposited a sum or Rs. 9,000/ in the bank account of the Society and the entire sum of Rs. 3,200/ was part and parcel thereof. He further asserted that since he was not incharge of writing accounts, the Secretary of the Society had failed to incorporate the relevant entries in the account and thus he was not guilty of the charge.

In his defence, the petitioner filed Exhibit DB, an order of this Court. That order was passed on 25th July, 1975 in Cr. M.No. 2621M of 1975. The contention of the counsel for the petitioner was noticed therein, while pressing for bail, that he had on 30th June, 1973 deposited a sum of Rs. 65,00/ and that alleged amount of Rs. 3200/ was included in that amount. Gurnam Singh, J, then observed that this aspect had not so far been investigated by the police and the State counsel requested for time to verify that fact. Time was given uptil 25th August, 1975 and it is alleged that thereafter no verification took place.

Now the learned counsel for the petitioner asserts that a direction was given to the investigation by this Court requiring it to exclude the possibility of a sum of Rs. 3, 200/ not being part and parcel to the bulk payment made by the petitioner in the bank on 30th June, 1973. According to him, the failure of the prosecution in that regard should make the petitioner earn his acquittal.

In Krishan Kumar v. The Union of India, AIR 1959, Supreme Court 1390, the Supreme Court observed as follows :

"In the case of a servant charged with misappropriating the goods of his master, the elements of criminal offence of misappropriation will be established if the prosecution proves that the servants received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss, then the facts being within the servant''s knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all pessible defines or circumstances which may exonerate him. If these facts are within the knowledge of the accused, then he has to prove them. Of course, the prosecution has to established a prima facie case in the first instance."

As said before, the entrustment is proved. Logically, on the failure to account, criminal misappropriation is established. As the President of the Society, the accused, on his own showing, was receiving large sums of money and depositing them in the bank. Negatively put, it is not a case of a single instance of deposit of money, which could stretchedly absolve him of the neglect of not having got is accounted for in the accounts. When a number of items were involved, it was the duty of the petitioner to have the account books reflect correctly the amounts he had received by virtue of his office and from Whom. These facts were within the knowledge of the petitioner and he could have adequately substantiated them by his private accounts, diary memorandum, or anything of that kind to show that the said sum of Rs. 65,000/, which possibly included Rs. 9,000/, as alleged, included a sum of Rs. 3,200/ on account of Swinder Sigh and Mohinder Kaur. The mater does not stop here, for were it so, then the question of any partial payment in the account books of Swinder Singh and Mohinder Kaur of Rs. 775/ and Rs. 660/ could not arise. If the petitioner had deposited a sum of Rs. 3,200/ at one and the same time in the bank, then the possibility or partial accounting, which concededly has been done, was irreconcilable. The petitioner has no explanation to offer why a lesser amount of money was accounted for in the accounts of Swinder Singh and Mohinder Kaur. Thus, it seems to me that the explanation offered by the petitioner is not convicting and does not fit in with the probabilities of the case. The ratio of the Supreme Court judgment in Krishan Kumar''s case (supra) as applied to the facts of the present case, keep the ring of guilt around the petitioner.

For the foregoing reasons, the conviction of the petitioner is well based and calls for no interference. With regard to the sentence, it was maintained that the petitioner has been under the agony of a long drawn suspense and litigation and since he is now under the orders of this Court on bail, he be shown some leniency towards sentence. Having regard to the facts and circumstances of the case the sentence of one year''s rigorous imprisonment and a fine of Rs. 1,000/, as imposed by the Courts below, need be altered. I would thus reduce the sentence of the petitioner to three months rigorous imprisonment and would enhancedly impose a fine of Rs. 2,000/, in default three months''s rigorous imprisonment which, if recovered, be paid in entirety to the Society as compensation towards its loss.

Subject to the aforesaid modification in the sentence, the petition otherwise fails and is hereby dismissed.