Rambabu Sharma vs State of Madhya Pradesh

G.D. Saxena, J.—As the facts are the same, the aforementioned four revisions are heard analogously and disposed of by this common judgment. For facility of reference, facts are being taken from Cri. Rev. No. 959/06.

All the aforesaid revisions have been preferred against the common judgment dated 30th November 06 of the Additional Sessions Judge, Lahar district Bhind M.P., in Criminal Appeal Nos. 140/2006 & 141/2006 by the accused-Appellant Ram Babu and Criminal Appeal Nos. 144/2006 & 145/2006 by the accused-Appellant Rajendra Singh, confirming thereby the judgment of conviction dated 28/8/06 passed by the Judicial Magistrate First Class, Lahar in Criminal Case No. 8/00 for commission of offence punishable under Sections 409 and 120-B of I.P.C. However, so far as sentence is concerned, same is reduced to the rigorous imprisonment of one year with further reduction in the fine amount to Rs. 3,000/- each and in default each of them was directed to suffer one month''s additional rigorous imprisonment.

The facts, in brief, for adjudication of these revision petitions are that the Petitioner No. 1 Ram Babu, at the relevant time was holding the post of Manager in the Co-operative Marketing Society Lahar district Bhind whereas Petitioner No. 2 Rajendra Singh was working as Accountant in the said Society. It is alleged that R.S. Yadav (PW-3), the present Manager of the Co-operative Marking Society Lahar written a letter to the Superintendent of Police Bhind to the effect that the Ex-President of the said Society, namely, Mr. Govind Singh and his subordinates committed criminal breach of trust in respect of the property of the Society. Accordingly, an FIR was lodged against Ram Babu, the then Manager of the Society and Rajendra Singh, the Accountant. After investigation, the charge-sheet was filed before the Criminal Court having the jurisdiction. The charges framed against Petitioner No. 1-Rambabu and Petitioner No. 2 Rajendra Singh are to the following effect:

The accounts were audited by Mahaveer Singh (PW-4), the Senior Co-operative Inspector-cum-auditor, Bhind, who submitted the Audit report Ex.P/2.

The first contention of the learned Counsel appearing for the Petitioner No. 1-Rambabu is that as per provisions of Section 76(2) of the M.P. Co-operative Societies Act 1962, the accused Rambabu was a Public Servant and hence in the light of provisions of Section 197 of Code of Criminal Procedure, prior permission to prosecute the Petitioner was mandatory but no such permission was obtained from the Registrar Co-operative Societies Bhopal and therefore entire proceedings of the trial initiated against him stood vanished. It is contended that the Petitioner being public servant, can not be prosecuted and punished. It is further contended that the office of branch Manager of the Society do not maintain cashbook, ledger, accounts book and vouchers of the society, which is not in dispute. The Petitioner No. 1 is facing trial for last 22 years and is an ailing person of aged 66 years old. Hence, he requested that in the light of above evidence as produced before the trial Magistrate, the order of acquittal be passed. In the alternative, it is prayed that looking to his old age, ailments and the long period of pendency of trial, he be benefited by the undergone jail sentence with the amount of fine as already deposited. On this point, he placed reliance on the decision of the Apex Court in the case of State of Himachal Pradesh v. Karanveer 2006 (2) SCC 737.

The contention of the learned Counsel for the Petitioner No. 2-Rajendra Singh is almost the same as put forth earlier on behalf of the Petitioner No. 1. It is stated that the judgment of conviction and sentence dated 28th August 06 passed by the Judicial Magistrate First Class, Lahar and the judgment dated 30th November 06 passed by the Additional Sessions Judge Lahar District Bhind are against the principles of law governing the situation and the facts as came out from the evidence before the trial Magistrate. The Petitioner No. 2/accused Rajendra Singh was working as Accountant in the Co-operative Marketing Society Lahar as Public Servant and prior to his prosecution, no permission as per provisions of Section 76(2) M.P. Co-operative Societies Act 1961 was obtained from the Registrar Co-operative Societies, Bhopal, consequently, the entire trial against him stood vitiated. It is also contended that prior to audit, the amount was deposited by the Petitioner No. 2, and nothing was embezzled, as alleged. He requested that the Petitioner was placed under suspension from 1982 for a considerable period and also facing trial for last near about 22 years. Therefore, it is prayed for acquittal of the Petitioner No. 2. Alternatively, it is prayed that the Petitioner No. 2 be benefited by undergone jail sentence with fine amount as already deposited before the trial court. On this point, reliance is placed on the decision in the cases of State of Hariyana v. Karanveer 2006 (2) SCC 737 and Jaidev v. State of MP 1992 (2) MPWN S.N. 01.

Learned Panel Lawyer for the Respondent/State on the other hand, supported the impugned judgment and submitted that no illegality is committed by the courts-below and the revisions are liable to be dismissed.

Heard the learned Counsel for the Petitioners and the learned Panel lawyer for the State/Respondent. Also perused the record of the trial Magistrate and the appellate court containing oral and documentary evidence and the law governing the case.

The first contention raised on behalf of the learned Counsel for the Petitioners-accused is that as per provisions of Section 76(2) of the M.P. Co-operative Societies Act 1962, the accused-Petitioners being Public Servants, prior permission to prosecute them from the Registrar Co-operative Societies Bhopal was mandatory in the light of provisions of Section 197 of Code of Criminal Procedure and in the absence of the same entire proceedings of trial stood vitiated.

This contention has no force. The provisions has no application when a public servant is prosecuted for an offence punishable u/s 409 of the Indian Penal Code. In the case of Jaipal Singh v. State of M.P. 2006 (4 BENCH) MPLJ 56, it is observed as under:

Similarly the provisions of Section 76(2) of the MP Co-operative Act are relating to the prosecution of a person under the provision of that Act and that provisions has no application when a public servant is prosecuted for an offence punishable u/s 409 of the Indian Penal Code. Therefore learned lower appellate court rightly held that Section 76(2) of the MP Co-operative Societies Act also does not come in way of the prosecution of the Appellant

On perusal of the judgments passed by both courts i.e. the trial Magistrate and the Appellate Court, it is abundantly clear that on the basis of a letter written by R.S. Yadav (PW-3), the Manager of the Co-operative Marketing Society Lahar to the Superintendent of Police Bhind that the Ex-President Govind Singh and his subordinates committed breach of trust in the property of the Co-operative Marketing Society Lahar, the FIR was lodged against Rambabu, the Manager of the Society and Rajendra Singh Accountant. After investigation, the charge-sheet was filed before the Criminal Court having jurisdiction. The charge was framed against the accused that in between the period from 13th August 1981 to 18th March 1982, the co-accused Rajendra Singh, the Accountant while working in the Co-operative Society Lahar at Branch Daboh, sent Rs. 4600/-on 13/8/81, Rs. 3000/-on 18/8/81, Rs. 700/-on 23/8/81 and Rs. 6700/-on 6/9/81, total amounting to Rs. 14,900/-to the Head Office of the Co-operative Marketing Society Lahar and the receipt of the received amount was passed on by him, but this amount was not deposited in the account of the Society at Lahar till 18th March, 1982 and was misappropriated by both the accused. It was ultimately deposited on 18/3/82. The record reveals that the account books and other documents pertaining to accounts were audited by the Senior Co-operative Inspector-cum-auditor Mahavir Singh (PW-4) and after completion of audit, the audit report (Ex.P/2) was submitted by him. Hence, the allegation against the Petitioners regarding embezzlement and misappropriation of the amount can be judged by the evidence of Mahavir Singh (PW-4), who appears to be an important witness being assigned with the work of audit.

Mahavir Singh (PW-1), deposed that on 9/9/81 a cheque No. 05924 of the Society was handed over to Gandharv Singh which was encashed by him on that very day, but the amount was deposited on 17/3/82. So also, one cheque No. 41494 of the State Bank of Indore for a sum of Rs. 25,000/- was given to the Petitioner No. 2-Rajendra Singh on 7/11/81 which amount was deposited by him on 28/2/1982. It is further stated that in the name of Valmiki Co-operative Society furniture to the sum of Rs. 9800/-was got purchased on 27/12/81 by these officials whereas there was no such society in existence. It is further noticed by him that a sum of Rs. 4600/-,Rs.3,000/-,Rs 700/-and Rs. 6700/-, total amounting to Rs. 15,000/-were not deposited on the dates on which the amount was released in the cash-book account of the society and the same was deposited in the name of accused-Petitioner No. 2-Rajendra Singh in his account. He further stated that on 26th June 1981, one Yogendra Singh pledged 50 q. Grams with the Society and Rs. 11,000/-was paid as credit by the society to Yogendra Singh. The said grams were sold subsequently during fractions of time by Yogendra Singh. Before sale of the said grams, on 27th October 1981, he deposited Rs. 4000/-which was not entered into the account of the Society. It is further alleged that on 13th August, 1981 Rs. 4600/-,on 18th August 1981 Rs. 3000/-and on 23rd August 1981 Rs. 700/-were received by the Petitioner No. 2 Rajendra Singh from the Marketing Society, Daboh which were not timely deposited by him. Hence, the accused-Petitioner No. 2 Rajendra Singh did not make entry about receipt of amount in the account registers of the Society. Consequently the society was put to financial loss for the period the amount remained uncredited in its account.

As regards accused-Petitioner No. 1 Rambabu, earlier he was working as sub-auditor in the Co-operative Department (M.P. State) who joined on deputation on the post of Manager in the Co-operative Marketing Society Lahar. In cross-examination, Mahavir Singh (PW-4) he stated that it is the duty of the Accountant to keep and maintain properly all accounts of the Society and the duty of the Cashier is to receive cash and prepare cash-book and maintain record pertaining to receipt of cash etc. He stated that there is nowhere duty of the Manager to prepare and maintain the cash-book, account book and voucher etc. of the Society. In para 9 of his cross-examination, he stated that the objection which are serious in nature are dealt with in the light of Section 63. It was admitted by him that all the objections as shown in his audit report was removed by the concerning officials of the Society.

The accused-Petitioner No. 1 Ram Babu in his statement recorded u/s 313 Code of Criminal Procedure stated that he was posted as Branch Manager in the Co-operative Society w.e.f. 24/5/81 till 2/11/81. He received the charge from Petitioner No. 2-Rajendra Singh, then Accountant of the Society. He stated that he also received the charge of the record of the Society as per charge-list, but the same was returned back to him. He further stated the charge of his post was given by him to Salig Ram Goswami on 2/11/81 and the charge pertaining to record of the Society was handed over by Rajendra Singh, Petitioner No. 2 to Salig Ram Goswami on 4/11/81, as per Ex.D/1. He stated that due to political rivalry, he has been falsely implicated as during entire tenure of him, the Cash book was kept in the possession of the Accountant. No money was ever entrusted to him nor he, in any manner, made connivance with Petitioner No. 2-Rajendra Singh for misappropriation of the money for his personal use.

In the case of Ram Chandra Rambharose Tiwari v. State of M.P. 2002 (2) MPLJ 208, this Court has held as under:

The Prosecution had to prove the guilt of the accused beyond doubt. He was responsible for the losses,but he did not commit criminal breach of trust. He may not have been so vigilant as to see that nobody misappropriates in the way. If somebody on whom he relies commit theft,he can not be held criminally liable. The trial court as well as the appellate court had given no thought on this part. They have not cared to see that criminal liability has to be establishing mens rea for the act of crime.

Further, in the case of Dayaram v. State of M.P. 2005 (1) MPLJ 44 it is observed as under:

If the prosecution is basing its case u/s 409 Indian Penal Code it is incumbent duty upon it to prove by cogent evidence to prove that property was entrusted to the accused or he was having dominion over property was entrusted to the accused person or he was having dominion over the property in his capacity as person, the list of which has been mentioned in Section 409 Indian Penal Code.

On perusal of the facts and in the light of the evidence of prosecution witnesses examined before the trial court, it is apparent that accused/Petitioner Rambabu was working as Manager on deputation from his parent department for a short time of four months. No cash/cheque was entrusted to him nor he misappropriated the cash property. Rajendra Singh, the then Accountant posted in the Co-operative Marketing Society Lahar has not made entry about the transaction amount of Grams tendered by Yogendra Singh in stock register and did not make any entry of payment received in that regard, causing thereby wrongful gain to himself and loss to the Society. Thus, the entrusted amount, mentioned above, was misappropriated by the accused-Petitioner No. 2-Rajendra Singh. He did not make entry of receipt or deposit of the said amount by him in account books of the society immediately after the transaction was made over. If somebody on whom one relies commits theft, he can not be held criminally liable for the other as observed by the Hon. Apex court in the case of Ram Chandra Rambharose Tiwari (Supra). This Court, therefore comes to the conclusion that it has not been proved that the Petitioner No. 1-Rambabu had dishonestly misappropriated or converted any money for his own use or done any thing which may amount to causing wrongful gain to himself or wrongful loss to the society. Hence, in the absence of legal and independent evidence with regard to the entrustment, it would be improper to maintain the conviction and sentence of the Petitioner No. 1-Rambabu. Accordingly, the judgment of conviction and sentence against Petitioner No. 1/accused Rambabu is not sustainable in law and same deserves to be set aside.

As regards, Petitioner No. 2 Rajendra Singh, on perusal of the evidence on record and in view of the audit report submitted by witness Mahavir Singh (PW-4), it is proved that the accused/Petitioner No. 2 Rajendra Singh was at the relevant time was working as Accountant in Co-operative Marketing Society Lahar. The evidence clearly shows that with intention to misappropriate the sum received by Petitioner No. 2 Rajendra Singh (Accountant), he did not make any entry of receipt of the amount since 28th February 1982. The Apex court in the case of State of Himachal Pradesh Vs. Karanvir, under such circumstances held:

... The very fact that the Respondent retained with him the entrusted amount is not disputed. If he did not utilize the amount for the purpose for which the same had been deposited, an offence must be held to have been committed.

The actual manner of misappropriation, it is well settled, is not required to be proved by the prosecution. Once entrustment is proved, it was for the accused to prove as to how the property entrusted to him was dealt with in view of Section 405 of the IPC. If the Respondent had failed to produce any material for this purpose, the prosecution should not suffer therefore.

The question, however, would now arise as to whether in the facts and circumstances of this case, the Respondent should be sent back to jail. The Respondent is aged about 60 years. The offence is said to have been committed 15 years back. He was arrested by the police. He might have been in custody for some time. Having regard to the peculiar facts and circumstances of this case and keeping in view the fact that the Respondent had deposited the entire amount before the First Information Report was lodged, we are of the opinion that the interest of justice would be sub-served if any substantial punishment is not awarded.

From the evidence on record it is proved that the accused-Petitioner No. 2-Rajendra Singh has dishonestly misappropriated/converted the money of the Society for his own use and thereby committed the offence of breach of trust. Hence, the trial Court as well as Appellate court rightly found him guilty for commission of offence u/s 409 I.P.C. This Court does not find any infirmity in convicting the Petitioner No. 2-Rajendra Singh for commission of offence u/s 409 of I.P.C.

So far as sentence is concerned, the accused/Petitioner Rajendra Singh was sent to custody just after pronouncement of the judgment on 30th November 2006 and subsequently was released on bail by this Court. He had already deposited the fine amount before the trial Magistrate. Keeping in view the period of long pendency of trial, deposit of defalcated amount before filling of FIR, the long period of his suspension from his service, the old age of the Petitioner No. 2 and as held by the Apex Court in the case of State of Himachal Pradesh Vs. Karanvir, in the opinion of this Court, ends of justice would be met if his sentence is reduced to the period of sentence already undergone by him with enhancement of fine of Rs. 5,000/-. However, it is directed that he will make good default to pay the amount standing due if any against him with the Co-operative Marketing Society Lahar.

In the result, Cri. Rev. No. 959/06 and Cri. Rev. No. 960/06 preferred by the Petitioner Rambabu are allowed in the manner indicated above. The Petitioner-accused Rambabu stands acquitted from all the charges levelled against him. So far as Cri. Rev. No. 978/06 and Cri. Rev. No. 979/06 are concerned, they are allowed in part, as directed above.