Piare Lal vs State of Haryana

A. S. Nehra, J.

This revision petition, is directed against the judgment dated 5.4.1986, passed by the learned Sessions Judge, Hissar, by which the conviction of the petitioner under Section 409, Indian Penal Code was upheld but his sentence of imprisonment was reduced to that till the rising of the Court and, the sentences of fine was enhanced to Re. 2000/ and, in default of payment of fine, to undergo further rigorous imprisonment for oneyear.

The facts are in a very narrow compass. It is beyond the pale of controversy that Piare Lalaccused was employed as a Postal Clerk in the old Ketchri Post Office at Hissar during the years 1977, 1978 and 1979. He has been arraigned to have embezzled and misappropriated the amount of Rs. 4440/ given to him for depositing in the Saving Bank. Accounts, the details of which are given below :

Sr. No. Depositor''s Name No. of S.B. account Date of deposit Amount Rs. Balance in the A/c after deposit Rs.

Banwari Lal s/o Moola Ram 67526 41078 2200/ 3408.80

Kalal Devi through Ram Dayal, petition writer, District Courts, Hissar 98494 30479 300/ 3940.00

Satpal s/o Jeewan Ram Typist, Hissar 2203559 1.5.79 500/ 505.00

Gheesa Ram 38008 14.5.79 280/ 1308.25

K.C. Khurana Seventeen recurring account numbers mentioned in PW8/A. 15.5.79 1190/

The Senior Superintendent of Post Office, Hissar Division, vide his letter F. IV/I 97980 dated 30.5.79 (Exhibit PW8/A) addressed to the Station House Officer, Police Station City, Hissar, complained that the accused had absconded from Government duty on 26.5.1979 after having committed the said embezzlement and defalcations; and that a case be registered against him and, after investigation'', he may be brought to book. During investigation, the accused, vide receipts Nos. 62 and 63 (Exhibits PWP12/A and 2 deposited the amount of Rs. 4720.85 paise embezzled by him.

Besides the vide depositors, the prosecution examined PW7 Des Raj Wadhwa, Post Master, Hissar, who was posted as Inspector, Post Offices, Hissar, on 10.3.1980 to identify the signatures, of the accused on receipts Exhibits PD, PW4/A, and PW5/E and G issued by the accused. PW10 S. P. Verma, retired Senior Superintendent, Post. Office, Patiala, stated that he had made the complaint Exhibit PW8/A to the Station House Officer, Police Station City, Hissar, on the application moved to him by Ram Dayal, one of the depositors, that the accused had embezzled the amount given to him for deposit. PW 15 Babu Ram, Postal Assistant, Head Office, Hissar, stated that the accused was employed as Bank Counter Clerk in the Ketchari Post Office where at he was posted as Postal Assistant from July 1977 to October 1979. He also identified the signatures of the accused on the receipts Exhibit PD, PW5/C, E, G and H. It is noteworthy that the defence counsel did not disown the signatures of the accused on the said receipts. The question is not of any complexity as had the accused not received the deposits, he would not have absconded from duty and later made deposit of the amount entrusted to him for deposite by the various depositors in the sum of Rs. 4720.85 paise, vide receipts Exhibit PW12/A and B dated 26.12.80.

During the course of arguments in the lower appellate Court, a question arose as to whether sanction for prosecution of the accused, was required under section 197 of the Code of Criminal Procedure. Shri J. C. Sethi, learned counsel for the appellant, overly placed reliance on the ratio of Ram Kishan''s case reported as 1981 CLR 624. In that case, the accused was Incharge of P. R. Godowns, Ambala City, on Physical verification, shortage of 49 Kgs. of rice, 5 Kgs. of rice Basmati, one bag of rice Sela, one bag of rice Sela Joshi besides some other articles, were detected. It was held that sanction in such a case in receipt of act done by the accused in his official capacity was a sine qua non for his prosecution under section 409, Indian Penal Code, and the result of the omission to obtain the said sanction was that the trial against him was to be held nonest in the eye of law. In the next ruling B.P. Srivastava v. N.P. Misra, AIR 1970 Supreme Court 1661, a Civil Assistant Surgeon filed a complaint against a Surgeon that, while in operation theatre, the latter had abused the former before patients and hospital staff and ordered the hospital cook to "turn out that Badmash," meaning the complainant, and the cook actually pushed out the complainant. It was held that there was nothing to show that that act was a part of the official duty the Civil Surgeon and that no sanction was required under section 197 of the Code of Criminal Procedure for his prosecution. In Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302 at page 1307 : AIR 1955 SC 309 at page 312, the Supreme. Court observed :

"It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is, actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be go, irrespective of whether it was in, fact, a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stake of the grant of sanction, which must precede the institution of the prosecution."

Recently in Baij Nath Gupta v. State of M. P. (1966) 1 SCR 210 : AIR (1966) 220 the Supreme Court further explained that it is the quality of the act that is important and if it falls within the scope and range of the official duties of the public servant concerned, the protection contemplated by section 197 of the Code of Criminal Procedure will be attracted.

The learned Public Prosecutor cited Kirpal Singh v. State of Punjab, 1984(1) RCR 595 , wherein it was held that defalcation of property entrusted to a public servant is no part of his duty and, in doing so, he is not acting in the discharge of his duties. Further, it was ruled that it is not necessary for the prosecution to prove in what manner the accused disposed of the money embezzled by him. Sustenance was also drawn by him on the ratio laid down in S.B. Shaha v. M.S. Koatcher, AIR 1979 Supreme Court 1841 and M.N. Kaul v. State of Jammu and Kashmir, 1983 SCC (Crl.) 647.

Taking the cue from the authorities cited on behalf of the prosecution, it was held by the lower appellate Court that, as there was no nexus between the official duties of the accused and the offence under section 409, Indian Penal Code, committed by him, he was not, entitled to the protection under section 197(1) of the Code of Criminal Procedure. Accordingly, the lower appellate Court held that the sanction for the prosecution of the accused under section 197(1) of the Code of Criminal Procedure was not required. After the trial, the petitioner was held guilty under section 409, Indian Penal Code, and he was sentenced to, undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/ and, in default of payment of fine, to undergo further rigorous imprisonment for one month.

The petitioner filed an application before the learned Sessions judge, Hissar, which was supported by an affidavit vide which he confessed his crime and confined his challenge in the appeal only on the point of sentence awarded by the Chief Judicial Magistrate, Hissar. The petitioner in his affidavit stated that, his father and son had died in ten killings at Ludhiana; that his wife was bedridden and that he had been able to secure a job which he would lose in case of his incarceration. The learned Sessions Judge accepted the prayer made in the application by the petitioner and reduced his sentence of imprisonment till the rising of the Court and the petitioner was ordered to pay fine of Rs. 2000/.

Since the petitioner has confessed his guilty in the lower appellate Court, there is no merit in this petition and the same is dismissed.