Lilu Ram vs State of Haryana

M.L. Singhal, J.

This Criminal Revision is directed against the order of learned Addl. Sessions Judge, Hisar dated 15.7.1998 whereby he has maintained the conviction and sentence of three years R.I. and fine of Rs. 4000/ and in default of payment of fine, further R.I. for four months recorded on Lilu Ram (petitioner) by learned Addl. Chief Judicial Magistrate, Hissar, vide order dated 19.2.1997 in case FIR No. 360 dated 24.9.1984 under Section 409 of the Indian Penal Code registered at P.S. Sadar Hisar.

The prosecution case in brief is that Lilu Ram was Sarpanch of Gram Panchayat of Village Shikarpur. In his capacity as Sarpanch of that Gram Panchayat, he was entrusted with an amount of Rs. 13,766.92. He failed to account for this amount. He failed to deposit the said amount in the account of the Panchayat. He failed to hand over the said amount to his successor either. Case was registered against him on the complaint of Block Development and Panchayat Officer. After investigation, he was challaned. He pleaded not guilty to the charge framed against him on 17.9.1987 by the learned Magistrate. On the conclusion of the trial learned Addl. Chief Judicial Magistrate, Hissar found the charge proved against him under Section 409 of the Indian Penal Code vide order dated 19.2.1997. Vide order of the same date, she convicted him and sentenced him as indicated above.

Not satisfied with the order of conviction and sentence passed on him by the learned Magistrate, Lilu Ram went in appeal to the court of Session where he met with failure. His failure in the two courts below has not dampened his spirits. He has come up in revision to this Court to try his luck over again here. I have heard the learned counsel for the petitioner and have gone through the record.

Resolution Ex.PW.18/A dated 1.8.1983 shows that there was an amount of Rs. 13,766.92 with Lilu Ram, Sarpanch. Lilu Ram remained Sarpanch of Gram Panchayat Shikarpur during the period 1971 to 1982. He handed over the charge to his successor Shri Bir Singh, Sarpanch. While handing over the charge, he did not hand over this amount to him nor did he account for this amount in any manner. He also did not deposit the amount in the Panchayat account. In Resolution Ex.PW.18/A, it was resolved by the Panchayat that Lilu Ram was liable to pay interest on this amount and the other amounts received by him as mentioned in the Resolution Ex. PWL18/A. Shri H.L. Bhatia, BDPO, served notice upon Lilu Ram calling upon him to deposit the amounts. It was submitted by learned counsel for the petitioner that no notice was received by the accusedpetitioner calling upon him to deposit the amount. Suffice it to say, it was for the petitioner to account for the amount within a reasonable time of its entrustment. If he failed to account for the amount within a reasonable time entrusted to him and is shown not to have spent the amount on the execution of any work of the Panchayat, he shall be rendering himself liable for criminal misappropriation of the funds of a public body like the Panchayat.

It was submitted by the learned counsel for the petitioner that entrustment has not been proved in this case and if entrustment is not proved, there is no question of any misappropriation. It is true that in the first instance, entrustment is required to be proved and if entrustment is proved, the question of misapppropriation will arise. There can be no dispute so far as this proposition of law inherent in the language of Section 409 of the Indian Penal Code is concerned. Section 409 of the Indian Penal Code lays down as follows :

"Criminal breach of trust by public servant or by banker, merchant or agent : Whoever being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine."

There is an admission by the accused that an amount of Rs. 13,766.92 was in hand with him. In Ex.PW10/F which is charge report, he admitted the balance of Rs. 13,766.92. He undertook to deposit the amount in Panchayat account in the bank. Charge report bears the signatures of Lilu Ram. He had handed over the relevant registers and books but not the amount. On the backside of the charge report, there is mention that previous balance was Rs. 13,77935. At the foot of this entry, there is admission of Lilu Ram that he had an amount of Rs. 13,776.92 P. in hand. Besides this admission, there are the statements of so many witnesses. Lilu Ram himself received various amounts from Hari Singh PW. 4, Ram Niwas, P.W. 9, Sumer Singh, P.W. 13 etc. Hari Singh, P.W. 4 stated that he had paid Rs. 2850/ to Lilu Ram, which amount Lilu Ram received vide receipt Ex.PW4/A. Ram Niwas P.W. 9 stated that he had taken the land on lease and he was the highest bidder for Rs. 2725/ and he had paid the amount to Lilu Ram, Sarpanch, who had issued receipt. Sumer Singh, P.W. 13 stated that he had taken panchayat land on lease on 2.5.1981 for a consideration of Rs. 2100/ or Rs. 2200/ and he had made the payment of lease money to Lilu Ram, Sarpanch. Ram Kumar, P.W. 14 took the land of the panchayat on lease and about the payment of lease money to Lilu Ram, Sarpanch in the presence of B.D. & P.O. vide receipt Ex.P.W.10/C. Accused was not competent to keep more than Rs. 250/ in hand at a time. This is what Shri H.R. Bhatia, B.D. & P.O. has stated. Entrustment stood proved. Now, the question arises whether misappropriation with criminal intent is proved. Accused failed to show that the amount was handed over by him to the committee constituted for the construction of Panchayat Bhawan and the amount was actually utilized in the construction of the Panchayat Bhawan. Accused failed to prove any prior permission or sanction of the competent authority for spending the amount on the construction of the Panchayat Bhawan. Competent Authority is not shown to have permitted the accused to give the panchayat money to the Samiti/Committee for the construction of the Panchayat Bhawan. Receipt Ex. D/1 produced by the accused leads us nowhere as it is not proved that the amount of Rs. 8675/ evidenced by receipt Ex. D/1. was really spent on the construction of the Panchayat Bhawan. Learned counsel for the petitioner submitted that the learned courts below failed to appreciate that receipt Ex.PW.11/A of Rs. 2260/ was cancelled. It was scribed by Wazir Singh, P.W. 12 who stated that it did not bear the signatures of the accused. He submitted that the learned courts below failed to appreciate that receipt marked `A'' and another receipt Ex.PW.10/E was also not signed by the accused. He submitted that a sum of more than one lakh was spent on the construction of the Panchayat Bhawan through that committee and Rs. one lakh was collected as donations and, therefore, how could it be that the accused misappropriated a small amount of Rs. 9135/ ? Suffice it to say, the signatures of the accused stood proved as per the report of the Director, Forensic Science Laboratory on the said resolution and the relevant entries of the cashbook. In my opinion, no fault can be found with the appraisal of the evidence made by the learned Magistrate. Similarly, no fault can be found with the reappraisal of evidence made by the learned Addl. Sessions Judge. I do not find any illegality or infirmity in the orders of the courts below in finding the accused guilty of embezzling the panchayat funds.

Faced with this position, the learned counsel for the petitioner submitted that the alleged embezzlement took place in the year 1983. Case was registered against the petitioner in the year 1984. He faced the ordeal of investigation for about three years. He was challaned in the year 1987. He remained in trial before the Magistrate for ten years. The Magistrate eventually convicted him and sentenced him. He went in appeal to the Court of Session. He remained in appeal to the court of Session for 11/4 years. He has, thus, suffered the vagaries of criminal trial for 14 years. Mental pain and agony to which the accused was put in the wake of a grave charge under Section 409 IPC has shaken him altogether. Right to speedy trial is the fundamental right of the accused which flows from Article 21 of the Constitution. If the Court is not able to assure the accused speedy trial, the Court should show him some consideration towards sentence. In support of this submission, learned counsel for the petitioner drew my attention to Braham Dass v. State of Himachal Pradesh, 1988(2) RCR (Criminal) 184, Pardeep Kumar v. The State (U.T. Chandigarh), 1994 Criminal Cases 58, Veer Singh Chauhan v. The State (Delhi), 1994(2) Chandigarh Criminal Cases 253, Jamna Lal v. State of Madhya Pradesh, 1995 Prevention of Adulteration Cases 78, Manjit Singh v. State of Punjab, 1993(3) RCR (Criminal) 363 and Mahavir v. State of Haryana, 1997(3) RCR 649. In this case, release of the petitioner on probation of good conduct is not conducive to justice. Expectations of the society from the courts will stand shattered if an accused who is proved to have embezzled panchayat funds to the tune of Rs. 13,766.92 Paise in the year 1984 when the value of money was quite high, is released on probation of good conduct. Criminals have certain rights while being dealt with by the courts. At the same time, the society has the just expectations from the courts that the sentence imposed upon them will commensurate with the gravity of the offence and the sentence imposed will act as a deterrent to others against the commission of crime. I am alive to the fact that in these days when retributive theory is almost alien in the modern penology where stress should be more on reformation and reclamation of the offenders, I will strike a mean while passing this sentence. While passing this sentence, I am not inclined towards attaching any importance to the retributive or deterrent aspect of the sentence, but will focus my attention to the reformative aspect of the sentence. I think, in this case six months R.I and fine of Rs. 4000/ will adequately meet the ends of justice. It is ordered accordingly. In default of payment of fine further R.I. for one month.

For the reasons given above, subject to the reduction in sentence as indicated above, this revision fails and is dismissed.

Revision dismissed