Rakesh Kumar vs State of Uttaranchal (Uttarakhand)

Prafulla C. Pant, J.—This revision is directed against the judgment and order dated 03.04.2006 passed by Sessions Judge, Haridwar, in Criminal Appeal No. 91 of 2005, whereby said court has affirmed the conviction and sentence recorded by the trial court (I Additional Civil Judge (Jr. Div.)/ Judicial Magistrate, Roorkee, vide its order dated 13.12.2005, passed in criminal case No. 180 of 2004) u/s 409 IPC.

Heard and perused the lower court record.

Brief facts of the case are that during the tenure of the revisionist who was a Director/Secretary of Co-operative Society, Gidhwali, Haridwar, embezzlement of more than Rs. 2.5 lacs was done in respect of which first information was lodged in the year 2002. After investigation, charge sheet was filed against the revisionist for his trial in respect of offence punishable u/s 409, 467, 468 IPC.. The trial court after giving necessary copies and framing charge against the accused /revisionist recorded statements of P.W.1 Satyapal, P.W.2 S.K. Sharma, P.W.3 Rajvir Singh, P.W.4 Umrav Singh, P.W.5 Surendra Singh, P.w.6 B.P. Chamoli, P.W.7 Bhagwati Prasad Joshi, P.W.8 Pramod Kumar Verma, P.W.9 Jasbir Singh, P.W.10 S.I. N.C. Johri, P.W.11 Manohar Singh Rawat and P.W. 12 Constable Tirth pal Giri. The oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which the revisionist alleged that evidence against him was false and in defence evidence got examined D.W.1 Ved Vrath Valiayan, D.W.2 Rakesh Kumar Chauhan, D.W.3 Naresh Kumar and D.W.4 Rakesh Sharma. The trial court, after hearing the parties, found accused Ramesh Kumar Sharma guilty of charge of offence punishable u/s 409 IPC. He was acquitted by the trial court from the rest of the charge relating to offences punishable u/s 467, 468 IPC. After hearing on sentence, the revisionist was sentenced to rigorous imprisonment for a period of three years and also directed to pay fine of Rs. 5,000/-(rupees five thousand only). It was further directed by the trial court that in case of default in payment of fine the convict shall further undergo six months simple imprisonment. Aggrieved by said judgment and order dated 13.12.2005,passed by Ist Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Roorkee, criminal appeal No. 91 of 2005, was preferred by the convict (present revisionist) which was also heard and dismissed vide impugned order dated 03.04.2006.

I have gone through the lower court record, and also perused the grounds on which the orders are challenged. The main ground which is pressed in the revision is that the revisionist was not a public servant as such Section 409 IPC is not attracted. In support of said ground principle of law laid down in Dilwar Balu Kurane v. State of Maharashtra, 2002 (1) UC 289, is relied.

I have gone through aforesaid case law and find that the same is of no help to the revisionist, as in the case of Dilwar Balu Kurane, the accused was a Lecturer of a private college and as such it was held he was not a public servant. Revisionist is not sailing on the same boat. He was a Director/Secretary of the Co-operative Society run under U.P. Co-operatives Society Act, and covered by Clause 12 of Section 21 IPC.

For the reasons as discussed above, this revision has no force and the same is dismissed. Registry is directed to inform the Superintendent of Jail concerned. Lower court record be sent back.