Sri A.M. Dyavappa vs State

V. Jagannathan

The petitioner is aggrieved by his conviction and sentence passed by the trial court in respect of the offences punishable under Sections 408 and 477-A of the I.P.C. and the lower appellate court confirmed the trial court''s judgment by dismissing the petitioner''s appeal.

The case of the prosecution in short is that, during the period when the petitioner was working as the Secretary of Vyavasaya. Sahakara Sangha Niyamitha, Kalase from 20.9.1986 to 30.4.1988, he being entrusted with the financial powers and recovery of loan as well as the sales activities of the society, committed the act of misappropriation and the amount of misappropriation pertaining to the present case is Rs. 168.80.

The trial court, after considering the evidence let in by the prosecution and taking note of the documents produced by the prosecution, concluded that the prosecution had proved its case insofar as the petitioner having misappropriated Rs. 168.80 and accordingly convicted him in respect of the offences under Sections 408 and 477-A of the I.P.C. and sentenced him to undergo three months simple imprisonment and to pay fine of Rs. 100/- in respect of the offence u/s 408 of the I.P.C. and similar period of imprisonment and similar amount of fine in respect of the offence u/s 477-A of the I.P.C. of the I.P.C. and ordered the sentences to run concurrently. Default sentence of 15 days was also ordered which was to be given effect consecutively. The lower appellate court confirmed the trial court''s judgment by dismissing the petitioner''s appeal.

I have heard learned counsel Shri H. Dayananda Saraswathi for the petitioner and learned Government Pleader Shri Satish R. Girji for the respondent-State and perused the records of this case.

The learned counsel for the petitioner did not question the conviction of the petitioner but, his main grievance is that, as the petitioner has been convicted in five cases, the sentence imposed against him in each of the cases be modified because, the petitioner is aged 52 years and the amount involved is also not huge one. Moreover, it is his submission that even though there was no audit report and there was delay in filing the complaint of more than five years, yet, the petitioner is not seriously questioning his conviction but only wants the sentence to be modified.

On the other hand, the submission of the learned Government Pleader for the State is that, the conviction and sentence passed by the courts below call for no interference and as the petitioner had been tried separately for each one of the cases of misappropriation the sentence awarded in each case will have to be undergone by the petitioner.

Having thus heard the learned counsel for the petitioner and the learned Government Pleader for the State and as the conviction is not questioned by the petitioner and his grievance is only to modify the sentence imposed, considering the fact that the petitioner has been convicted in as many as five cases including the present case and the other cases where he has been convicted are also being questioned before this court in the connected Criminal Revision Petition Nos. 1455, 1456, 1457 and 1450 of 2005, in my view, taking into account the period of incident and the judgment of the trial court itself is of the year 1999 and more than 12 years have elapsed, the petitioner must have undergone sufficient mental agony and, therefore taking all these factors into consideration and the petitioner having been convicted in the other cases as well in respect of the very same offences and further the petitioner''s counsel submitting that the amount of misappropriation in all the cases having been made good by the petitioner, the sentence imposed, therefore, requires to be modified to meet the ends of justice.

In the result, the conviction of the petitioner in respect of the offences punishable under Sections 408 and 477-A of the I.P.C. by the trial court does not require any interference.

As far as the sentence is concerned, the sentence of two months imprisonment is substituted in respect of the offence u/s 408 of the I.P.C. and in respect of conviction u/s 477-A of the I.P.C. also, the sentence is reduced to two months imprisonment and the fine amount is however maintained without any modification. The sentences as now modified shall run concurrently and in default of payment of fine, the default sentences will have to be undergone separately.

The petitioner is directed to undergo the sentences imposed as modified above and the trial court shall take necessary steps in this regard.

The petition, therefore, stands allowed in part to the extent of the sentences being reduced to two months imprisonment.