Pravin S/O Vasantrao Khobragade vs State Of Maharashtra

@Judgmenttag-Judgment

The Present Revision Application Is Against The Judgment Of AdÂHoc Additional Sessions Judge, Wardha Confirming The Judgment Of Judicial

Magistrate, First Class, Arvi, By Which The Applicant Is Convicted For Offence Punishable Under Section 409 Of The Indian Penal Code And

Sentenced To Suffer Rigorous Imprisonment For Two Years And Shall Pay Fine Of Rs.2000/Â, In Default Shall Suffer Four Month Rigorous

Imprisonment.

Heard Shri M.B.Naidu, Learned Counsel For The Applicant. He Has Pointed Out Cross Examination Of P.W.2ÂMangala And Submitted That In

The Absence Of Applicant, The Cupboard Was Opened. In The Cupboard, The Applications Were Found. There Is Nothing On Record To Show

That The Applicant Accepted Those Applications And Amount Of Copying Fees From The Concerned Clerk. Therefore, Benefit Of Doubt Be Given

To The Applicant/Accused. Learned Counsel Has Pointed Out Decision Vasant Moghe Vs. State Of Maharashtra, Reported In Air 1979 Sc 1008, At

Last, He Submitted That The Prosecution Has Failed To Prove The Receipt Of Rs.450/Â From The Clerk Of The Concerned Advocate By The

Accused. There Is Much More Delay In Lodging The Report. Therefore, The Applicant/Accused Is Entitled For Acquittal.

Shri Thakre, Learned App Has Supported The Judgment Of Trial Court And Pointed Out The Decision In The Case Of Som Nath Puri Vs. The

State Of Rajasthan Reported In (1972)1 Supreme Court Cases 630, To Substantiate His Stand.

The Evidence Of P.W.1 Shows That He Was Working As Registrar At District Court, Wardha. The Accused Was Working As Junior Clerk In

The Year 2004 At J.M.F.C. Court Arvi. The Accused Accepted An Amount Of Rs.450/Â Towards Copying Fees, But He Has Not Deposited The

Same In The Government Account. He Has Verified The Record And After Satisfying That The Accused Has Misappropriated The Amount Of

Rs.450/Â, He Lodged A Report Against The Accused. During The Course Of Cross Examination, He Has Stated That He Lodged Report On The

Basis Of The Documents And He Has No Personal Knowledge In Respect Of The DayÂ​ToÂ​Day Work Of The J.M.F.C.Court At Arvi.

P.W.2, Mangala, Was Working As Assistant Superintendent At J.M.F.C. Court Arvi. It Was Her Duty To Supervise All The Staff. At The End Of

The Day, She Used To Receive Copying Fees, Fine Amount, Etc. Along With Concerned Receipt Books From The Concerned Clerk. She Has Stated

In Her Evidence That Accused Was Working On The Table Of Certified Copy. On 10th March, 2004, The Accused Was On Leave. Thereafter, He

Remained Absent Without Prior Permission On 11th And 12th March, 2004. On 10th March, 2004, Nobody Approached To The Office For Certified

Copy. But On 12thMarch, 2004, One Gulhane Came To The Office And Shri Shirbhate Attorney Of Advocate Along With Client And Stated Her

That He Has Given An Application For Certified Copy Along With Fees For Certified Copy, But He Did Not Receive The Receipt. On 12th March,

2004, She Directed Junior Clerk, Shri Hadwe, To Work On The Table Of Accused.

When Hadwe Has Opened The Cupboard And Verified Daily Book, Receipt Book, Copying Register, Etc. He Found That 18 Receipts On Which

There Was Signature Of Clients (In Receipt Book) And Some Receipts Were Scraped. It Was Brought To The Notice Of P.W.2 Mangala.

P.W.2 Mangala, Assistant Superintendent, Checked The Cupboard And Then, She Found 17 Applications For Certified Copies. All Those

Applications Were Received By The Accused And The Amount Of Fees Were Also Received By The Accused. She Has Pointed Out All The

Applications To The J.M.F.C., Shri Tikhile, She Has Stated That The Accused Not Handed Over Amount Of Copying Fees To Her. Therefore, It

Was Not Taken In The Cash Book. The Presiding Judge Of J.M.F.C,Court Arvi, Shri Tikhile, Also Verified All The Entries. According To P.W.2Â‐

Mangala, She Has Submitted Her Detailed Report To Civil Judge, Jr.Dn.Arvi, Shri Tikhile.

From The Perusal Her CrossÂExamination, No Material Is Brought On Record What Has Pointed Out In Her CrossÂExamination That Shri

Hadwe Opened The Cupboard And Thereafter, Applications For Certified Copy Were Found. Learned Counsel Shri Naidu Has Submitted That

Those Were Not Kept By The Accused.

It Is Pertinent To Note That The Said Cupboard Was Kept Near The Table Of The Accused. He Used To Keep All The Records In Respect Of

His Table In The Cupboard And While Proceeding On Leave, He Pasted Seal Of Paper On The Cupboard. As Per The Evidence Of Pw 2, Mangala,

That Seal Was Opened When Hadwe Opened The Cupboard. From The Above, It Is Clear That All The Documents/Records Were Kept By The

Accused And None Else.

P.W.4Â Civil Judge, Junior Division, Shri Tikhile, Has Stated In His Evidence That During The Leave Period Of Accused, It Was Noticed That

The Accused Accepted Amount Of Rs.450/Â From The Clerks Of The Concerned Advocate Towards Copying Fees, But Not Issued Any Receipt

To Him. He Has Taken Entry In His Hand Writing On The Concerned Applications. The Accused Not Handed Over The Said Amount To Assistant

Superintendent, Mangala, P.W.2.

Show Cause Notice Was Issued To The Accused After Preliminary Enquiry. He Has Given His Explanation Stating That He Signed Those

Application And Because Of IllÂHealth Of His Daughter, He Could Not Give Attention To His Work. He Has Committed Mistake And Therefore

He Be Excused For The Same. From The Explanation Of The Accused, It Is Clear That He Has Admitted About Acceptance Of Rs.450/Â From

The Concerned Clerks Of The Advocate.

All The Concerned Clerks Of Advocates Were Examined Before The Trial Court. They Have Stated In Their Evidence That They Have Paid

Amount Of Fees For Certified Copies To The Accused. The Accused Did Not Issue Receipts, But Taken Entry In His Handwriting On Concerned

Applications And They Were Directed To Come After Preparation Of The Certified Copies.

From The Perusal Of Evidence Of All The Witnesses, Nothing Is Brought On Record To Show That Any Of The Witness Was On Enimical

Terms With The Accused. All The Clerks Of The Concerned Advocates Have Stated That The Accused Accepted Amount Of Fees From Them.

Judge, Shri Tikhile, Himself Personally Verified The Records And He Called The Explanation Of The Accused. The Accused Admitted About The

Receipt And Stated That It Was His First Mistake And Therefore, He Be Excused. All These Oral And Documentary Evidence Clearly Show That

The Accused Being A Clerk, Working On The Table Of Certified Copy, Accepted Amount Of Rs.450/Â, But Not Credited To The Government.

There Is No Dispute That The Accused Is A Public Servant, As Defined Under Section 21 Of The Indian Penal Code. He Has Misappropriated

Amount Of Rs.450/Â​ And Therefore, All Material Ingredients Of Section 409 Of Ipc Are Proved By The Prosecution Beyond Reasonable Doubt.

During Course Of Argument, Learned Counsel Shri Naidu For The Applicant/Accused Has Pointed Out Decision In The Case Of  Himadri

Adhikari Vs. The State, Reported In 1986 Cri.L.J.337. From The Perusal Of Para 7 Of The Said Decision, It Is On Different Footing. The Entry In

Respect Of Amount Was Taken In The Register In The Cited Decision, Whereas The Accused Neither Issued Any Receipt, Nor Taken Any Entry

In Respect Of The Amount Of Copying Fees. Therefore, The Decision Cited (Supra) Is Not Applicable To The Case In Hand. The Learned Counsel

For The Applicant/Accused Submits That Lenient View May Kindly Be Taken By Modifying The Impugned Judgment. The Learned Trial Court Has

Already Taken Lenient View. Section 409 Of Ipc Provides Punishment Of Imprisonment For Life Or Imprisonment To The Extent Of 10 Years, But

The Accused Has Sentenced Only For Two Years. Therefore, No Leniency Can Be Shown To The Accused.

The Evidence Of Assistant Superintendent, Civil Judge, Junior Division, Shri Tikhile, All The Clerks Of The Concerned Advocates, Clearly Show

That The Accused Being A Public Servant, Junior Clerk, Accepted Amount Of Rs.450/Â Towards Copying Fees, Misappropriated The Amount.

Therefore, The Revision Is Without Any Merits. Hence, The Following Order.

 (1) Criminal Revision Application Is Dismissed.

(2) Learned Trial Court Shall Take Necessary Action For Taking The Accused In The Custody For Undergoing Jail Sentence.

(3) R & P Be Sent Back To The Trial Court.