Sham Dass vs State of Punjab

K.P.S. Sandhu, J. (Oral)

Eight criminal revisions Nos.134 to 1347 of 1984 filed by Sham Dass petitioner would be disposed of by this judgement of mine.

The petitioner while acting as a cashier of Ghumman Kalan Cooperative Agriculture Service Society embezzled an amount of Rs. 16,991/ during the period commencing from 17th December, 1965, to 9th July, 1974. Different members of the aforesaid society by way of refund of their loans paid different amounts to the petitioner on different occasions which he failed to credit to their accounts with the society. So, nine different cases were registered against the petitioner although to begin with only one case was registered. The petitioner was acquitted in one of those cases and was convicted in the remaining eight cases. His appeal in those eight cases failed in the lower appellate Court. Although the sentence of imprisonment in each case is one year but the amount of fine varies in all the cases and the total amount of fine comes to Rs. 6,280 in all the cases. The sectence of imprisonment has been ordered to run concurrently in all the cases. The total amount of fine has been deposited by the petitioner.

The finding of the Courts below is that the total amount embezzled by the petitioner was not Rs. 16,981 as alleged by the prosecution but 13,593.29 only. The petitioner on the last date of hearing was asked to deposit the remaining amount of Rs. 7,443.29 in the name of the society to make up the loss to the society. The petitioner has produced a receipt showing that a sum of Rs. 7,500 has been deposited in the Gurdaspur Central C0operative Bank Ltd, Dhariwal Branch, in the name of Ghumman Kalan Cooperative Agriculture Service Society. It is ordered that the whole amount paid by the petitioner as fine would go to the society and the society would also be at liberty to withdraw the sum of Rs. 7,500 deposited by the petitioner in the Gurdaspur Central Cooperatiive Bank Ltd., Dhariwal Branch.

The prosecution has failed to produce on record in all the cases any evidence to show that the petitioner was appointed cashier of the society either by some resolution or by any order of the proper authority. In the absence of the evidence that the petitioner had been appointed the cashier of the society it cannot be said that the petitioner embezzled the aforesaid amount in his capacity of the society. So, the provision of section 408 of the Indian Penal Code would not be attracted and the petitioner would only be liable under section 406 of the Indian Penal Code. The case against the petitioner was registered under section 406 of the Indian Penal Code on 28th August, 1981, the chalan also was submitted under section 406 of the Indian Penal Code and the charge initially was framed under section 406 of the Indian Penal Code. It was later on the application of the prosecution dthat the charge was converted from Section 406 to Section by 408 of the Indian Penal Code. So, it appears that the application was made the prosectution to circumvent the rule of limitation because the chalan was submitted after more than three years of the date of the commission of crime. Thus no cognizance could be taken by the trail Magistrate in view of Section 468 of the Code of Criminal Procedure Mr. D.N. Rampal learned counsel appearing for the Advocate General, Punjab, has fairly conceded that once it is found that the petitioner was guilty under section 406 of the Indian Penal Code then certainly the cognizance of the case against the petitioner was barred. In this view of the matter, the conviction and sentence of the petitioner have to be set aside in all the cases on this short ground. I order accordingly.

The petitioner has undertaken that he would not claim the refund of the amounts paid by him as fine and that the same may go to the society.