Mohan Lal vs State of Punjab

S.S. Dewan, J.

Mohan Lal petitioner, at the material time, was working as a Manager of the Sutlej Cooperative Marketing Society Ltd., Nangal. He along with Satish Kumar and Jagteshwar Singh was brought to trial on the charge under S. 409, Indian Penal Code before the SubDivisional Judicial Magistrate, Anandpur Sahib. Satish Kumar and Jagteshwar Singh were acquitted. Mohan Lal was, however, held guilty of the said charge. He was convicted and sentenced to 3 years rigorous imprisonment and a fine of Rs. 5000/. On appeal, the learned Additional Sessions Judge, Rup Nagar, upheld the conviction and sentence of the petitioner. He has now come up in revision.

In order to appreciate the contention of the learned counsel for the petitioner, it is necessary to set out the relevant facts. Sutlej Cooperative Marketing Society, Nangal (for short, the Society), is dealing in fertilizer. Accused Satish Kumar was working as a Field SubInspector of the Markfed. Jagat Singh, Administrator of the Society, lodged the report with the Superintendent of Police, Rup Nagar, through the Assistant Registrar, CoSocieties, Anandpur Sahib, that there was double lock system and the fertilizer godowns were under the control of the Manager and Field SubInspector and one key was to be kept by Satish Kumar and the other kay by Mohan Lal. Both were responsible for keeping the correct stock position of fertilizer in the godowns of the Society and also to keep upto date record of the Society. A number of complaints were received by the Deputy Commissioner, Rup Nagar, about the working of the Society for not issuing fertilizer for the Rabi campaign to the other Societies and the farmers. The Deputy Commissioner, Rup Nagar, along with the Sub Divisional Magistrate, Anandpur Sahib and the Assistant Registrar, Cooperative Societies conducted raid on the godowns of the Society on 12101976 and sealed the office and the godowns of the Society. On 13.10.1976, physical verification of the stock of the Society was done, in the presence of SubDivisional Magistrate by the District Manager, Markfed, Rup Nagar and he found the following shortages :

(i) C.A.N. 25% .................182 bags of 50 kgs. each

(ii) C.A.N. 26% .................41 bags of 50 kgs. each

(iii) D.A.P. 721 bages of 50 kgs. each

It was stated by Jagat Singh that the above shortages indicated that these fertilizers had been sold by Mohan Lal petitioner and Satish Kumar and the amount was embezzled. After necessary investigation, the petitioner alongwith two other accused was challaned and sent up for trial. The prosecution examined 20 witnesses in support of its case. When examined under S. 313 Criminal Procedure Code, (for short the Code) the petitioner and the other two accused denied the allegations of the prosecution and pleaded false complicity in the case. So far as Satish Kumar and Jagteshwar Singh were concerned, they were both acquitted by the trial Court. Only the petitioner was convicted and sentenced as mentioned above.

At the outset, the learned counsel for the petitioner has challenged the legality of the conviction of the petitioner under S. 409, Indian Penal Code and the consequential punishment. He relied on a decision in Karnam Siddapa v. State of Mysore, A.I.R. 1958 Mysore 82 and Shridhar Mahadeo Pathak v. Emperor, A.I.R. 1935 Bombay 36. In my opinion, the contention of the learned counsel for the petitioner should be upheld. The authorities to which he has referred make that position quite clear. The petitioner admittedly stood appointed as a salaried Manager of the Society registered under the Punjab Cooperative Societies Act, 1961 and would not be a public servant as defined under S. 21 of the Indian Penal Code and as such the Cooperative Society cannot be equated with a Local Authority or a Corporation which can be said to be established by the Punjab State. An effort is made in the terms that the offence will come within the purview of S. 408 of the Indian Penal Code and not under S. 409, Indian Penal Code. No body has appeared on behalf of the State to assist the Court. In any case, after hearing the learned counsel for the petitioner at considerable length, I am inclined to agree with him that the offence would fall clearly within the ingredients of S. 408, Indian Penal Code. As a servant of the Society, the petitioner had to act for and on behalf of the Society and for his criminal acts and omissions S. 408 of the Indian Penal Code could alone be attracted. In view of what has been said above, the offence is converted from one under S. 409, Indian Penal Code to one under S. 408 of the Indian Penal Code.

As for sentence, there are some extenuating circumstances, which in my opinion should be taken into consideration for the purpose of determining whether or not the sentence, in the case, of imprisonment should be imposed. The alleged offence was committed in the year 1976. The petitioner is a first offender and there is nothing against his character and antecedents on the record. He is a family man and has also lost his job. He is on bail. The Courts below did not give him the benefit of probation. It seems that the provisions of Ss. 360 and 361 of the Code were not brought to their notice. The Legislature by including these provisions in the New Code intended to reform the offenders where it is possible by giving them the benefit of probation. It is only by giving the special reasons under S. 361 of the Code that the benefit of probation can be denied by the Courts. The special reasons are to be given by the Courts with regard to the age, character, antecedents of the offender and the circumstances in which the offence was committed. The Supreme Court in Bishnu De Shaw v. State of West Bengal, 1979 CAR 385 (S.C.) observed as under :

"Special reasons in Section 361 Criminal Procedure Code, 1973 means to compel the Court to hold that it is impossible to reform and rehabilitate the offender with due regard to his age, character, antecedents and circumstances in which offence was committed."

In the instant case, the Courts below have not considered this aspect of the matter. It is incumbent upon the Courts to give the benefit of probation when the offenders are entitled to it under S. 360 of the Code unless they find that the convicts are incorrigible and cannot be reformed. The object of punishment is not only to be retributive but also to be reformative. Keeping in view the said principles, the petitioner is given one chance to reform himself. It is directed that he will be released on probation for a period of two years on his executing a personal bond in the sum of Rs. 5000/ and furnish one surety in the like amount to the satisfaction of the trial Court, undertaking to appear before the Court if and when called upon to do so, to receive sentence of imprisonment on default and in the meantime to keep the peace and be of good behaviour. The petitioner is further directed to pay Rs. 35,000. (Rupees thirty five thousand) as compensation to the Sutlej Cooperative Marketing Society Ltd., Nangal, which may be informed.

The revision petition is allowed to this extent only.