S. Krishnan vs State

Padmini Jesudurai, J.—This revision has been filed by the accused in C.C.111/82 on the file of the Sub Divisional Judicial Magistrate, Hosur, challenging his conviction for an offence u/s 477-A, I.P.C. and the sentence of imprisonment for a period of one year confirmed in appeal by the learned Sessions Judge, Dharmapuri District at Krishnagiri in C.A.11 of 1985.

The Petitioner was tried by the trial Court for offences under Sections 409 and 477-A, I.P.C., in that between 14.12.1976 and 16.12.1976 he was the Assistant Godown Supervisor of the Tamil Nadu Civil Supply Corporation and in that capacity was entrusted with sugar weighing 4500 kg. Valued at Rs. 20,250/- and he misappropriated the same without supplying them to the fair price shops and to cover up the misappropriation falsified the accounts of the Godown Register and the Stock Register. The learned Magistrate convicted the Petitioner for both the offences and sentenced him to undergo imprisonment for a period of 1 year and to pay a fine of Rs. 500/- for the offence u/s 409, I.P.C., and sentenced him to undergo imprisonment for a period of 1 year for the offence u/s 477, I.P.C. In the appeal the learned Sessions Judge, set aside the conviction and sentence for the offence u/s 409, I.P.C. and confirmed the conviction and sentence relating to S. 477-A, I.P.C.

Thiru. S. Pichai, learned Counsel for the Petitioner submitted that the learned Sessions Judge the acquitted the Petitioner of the offence u/s 409, I.P.C. on the ground that the prosecution had not proved entrustment of stock of sugar to the Petitioner and consequently there could be no question of misappropriation of the stock, and in view of this finding regarding the offence u/s 409, I.P.C., the conviction for the offence under Sec. 477-A, cannot be legally sustained, since the prosecution case itself was that the accounts were falsified for the purpose of covering up the misappropriation. According to the learned Counsel, the dishonest element necessary for the offence u/s 477-A, I.P.C. gets ruled out, when there is an acquittal for the offence u/s 409, I.P.C. on the ground that there had been no entrustment.

Per contra, the learned Public Persecutor by referring to the salient features of the prosecution case sought to sustain the conviction.

The question that arises for consideration is whether the conviction of the Petitioner for the offence u/s 477-A, I.P.C. can be legally sustained.

It had been the prosecution case, that the Petitioner in his capacity as Assistant Godown Supervisor had been entrusted with the stock of 4500 K.G. of sugar and had committed misappropriation of the same. The learned Sessions Judge by referring to the oral and the documentary evidence has given a positive finding that there was absolutely no evidence to show that the stock of sugar had been entrusted to the Petitioner. There was neither oral evidence, nor was there any documentary evidence. He had therefore, held that the offence u/s 409, I.P.C. had not been proved. The learned Sessions Judge, has stated that the accounts of the Godown show that 50 quintals of sugar had been supplied to fair price shops, whereas the registers showed only a supply of 45 quintals and that the accounts were incorrect, since an excess stock of 5 quintals was shown as distributed to fair price shops. The learned Sessions Judge has also observed that the accounts and the vouchers do not tally and that therefore, there was falsification of account. He had therefore confirmed the conviction of the Petitioner for the offences u/s 477-A, I.P.C.

The contention of the learned Counsel for the Petitioner that when the court finds that the offence u/s 409, I.P.C. is not proved on the ground of the prosecution failing to prove entrustment of the stock to the accused, the conviction u/s 477-A also must fail, has to be accepted. It is the positive case of the prosecution that the accounts were falsified only for the purpose of covering up the misappropriation. The dishonest intention is therefore traced to the commission of the offence u/s 409, I.P.C. When therefore, the accused is acquitted of the offence u/s 409, I.P.C. on the ground that entrustment of the stock had not been proved there could be no question of any dishonest intention in falsifying the accounts. Even if the accounts are not correct, it will only be a case of incorrect accounts or bona fide errors in the account and would not amount to dishonestly falsifying the accounts. After the learned Sessions Judge found the Petitioner not guilty of the offence u/s 409, I.P.C. he could not have found the Petitioner guilty of the offence u/s 477-A, I.P.C. The charge u/s 477-A, I.P.C. has to fail. The conviction cannot be sustained.

In the result, this revision is allowed, the conviction of the Petitioner for the offence u/s 477-A , I.P.C. and the sentence of imprisonment for a period of 1 year are set aside. The bail bond if any shall stand cancelled.