T. Tamilchelvan vs State, Inspector of Police, CCIW Vellore Unit

S. Ashok Kumar, J.—Aggrieved over the conviction and sentence for the offence u/s 408 and 477A IPC, the petitioner has filed these

revisions.

The brief facts of the cases are as follows:

The petitioner was working as the Secretary of the Kandipedu Primary Agricultural Cooperative Bank. Before that he was appointed in the

Society on 163.1987 as a Clerk and after completing 4 1/2 years of service he was posted as the Secretary on the basis of resolution dated

28.6.1991. As the secretary of the Society he was entrusted with the wealth of the Society both movable and immovable and he was to collect the

loans and advances from the beneficiaries and to issue receipts, maintaining and updating cash chitta, daily ledger, supervising the village fair price

shops and inspecting the fair price shops etc., Cheques of the Bank should be signed by the Secretary as well as the Special Officer. The

departmental inspection of the Kandipedu Primary Agricultural Cooperative Society for the period 1.7.1991 to 30.6.1992 was conducted by one

Dasarathan. He found serious misdeeds such as misappropriation of Society''s fund, wrong entries in the ledger, cash chitta, deliberate

commissions of receipts and purported falsification of accounts committed by the revision petitioner. On the basis of the inspection report, P.w.9,

Krishnan, the Deputy Registrar of Cooperative Societies initiated criminal proceedings by lodging a complaint in Ex.P.12.

On the basis of the complaint, a case in Cr. No. 11/93 u/s 408, 409 and 477A IPC was registered against the revision petitioner and one

Annamalai, the clerk of the Society as found in Ex.P.110. P.w.14, Balakrishnan, the Inspector of Police took up the investigation, enquired P.w.9,

Krishnan and recorded his statement. The witnesses who were acquainted with the facts were examined and their statements were recorded. The

documents which were found necessary for investigation were secured from the Society. Thereafter, P.W.15 Deivasigamani, the Inspector of

CCIW took up further investigation and enquired the witnesses and collected all the materials. Upon the conclusion of the investigation final report

was filed against the revision petitioner as there was a prima facie case against the accused.

Before the learned Judicial Magistrate, Vellore charges u/s 408 and 477A IPC (2 counts) were framed against the accused, read over and

explained to him. Since the accused pleaded not guilty, the trial commenced. On behalf of the prosecution P.W.1 to P.w.15 were examined.

Exs.P.1 to P.110 were marked. On behalf of the accused, no witness was examined and no document was produced. On the basis of the

materials made available, the trial court convicted the accused in the four Calendar Cases under Sections 408, 409 and 477A IPC and sentenced

him to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 2000/= in default to under go 6 months R.I., for each of the offences

and u/s 477A IPC, sentenced him to undergo one year R.I., Against the conviction and sentence, the accused preferred four Criminal Appeals in

Crl. Appeal Nos. 28 to 31 of 2002 before the learned Additional Sessions Judge, Vellore. The learned Appellate Judge rightly set aside the

conviction and sentence of the accused for the offence committed u/s 409 IPC and acquitted the accused since the conviction and sentence has

been passed by the trial court without even framing the necessary charge. The learned Appellate Judge rightly observed that though the Criminal

Procedure code permits punishing an accused on a lesser offence when the greater offence has been charged even in the absence of specific

charge, the reverse is not possible, because of the Latin maxim Audi Alteram Partem. Aggrieved of the same, the present revisions are filed by the

accused/revision petitioner.

Based on the investigation, the police filed four final reports comprising different periods and under different categories. The misappropriation

alleged are Rs. 11,070/=; Rs. 1,900 + 4,515/=; Rs. 29,610.15 and Rs. 6,747.85 respectively in the four Calendar Cases. To commit such

misappropriation of Society''s funds, the accused has committed falsification of accounts in the various records, who was also entrusted with the

stocks of the fertilizer and other agricultural inputs. In all the four cases, uniformly 15 witnesses have been examined to speak about the

misappropriation of Society''s funds and falsification of accounts. P.Ws. 1,2,3 and P.W.11 have clearly spoken about the duties and

responsibilities of the accused as the Secretary of the Society.

As regards the misappropriation of Rs. 11,070/= after encashing the cheque No. 019496 dated 23.1.1992, P.w.4, the then Manager of the

Society deposed that after verification of the signatures of the drawers, he passed the cheque and paid the sum to the clerk Annamalai. P.W.5,

Cashier supported the evidence of P.W.4. Both the courts below rightly held that in view of the status of the accused as the custodian of the entire

transaction of the Society and since no step was taken to set right the accounts of the Society and in the absence of not taking any action against

Annamalai, Clerk, the accused is responsible for the misappropriation.

As regards the misappropriation of Rs. 1,900/= it is the case of the prosecution that the collection of the said amount as per the cheque 019491

was not properly accounted in the society''s register. Likewise the encashed amount of the cheque No. 921951, dated 3.4.1992 for Rs. 58,000/=

it was deliberately accounted as Rs. 53,485/= thereby misappropriating Rs. 4,550/=. The oral evidence of P.w.4, to 7 would prove the actual

handing over of the sum of Rs. 1900/= and entrustment of the said sum to the accused. In the departmental inspection done by P.w.10,

Dasarathan for the period from 1.7.1991 to 30.6.1992, he found the irregularities and the basis of his report, P.W.9 initiated the criminal action.

The evidence of P.W.13, who conducted the Section 81 enquiry over the affairs of the society and the Bank as detailed in his evidence about the

misdeeds committed by the accused is conclusive. The deliberate entry of Rs. 53485/= instead of Rs. 58,000/= has also been fortified by the oral

and documentary evidence. There is no dispute as to the entrustment of the stocks and registers with the accused to invoke the relevant provisions

of the Code.

As regards the criminal misappropriation of funds of the Society in a sum of Rs. 29,610.15, it is alleged that he has reduced the stocks in the

stock register without selling them and used it for his personal gain and thereby the accused has committed the offence in respect of the stock of

the bank. On a perusal of the records it is seen that on 11 such occasions on different dates such as 14.3.1992, 30.5.1992, 28.1.1992,

12.9.1991, 10.1.1992, 27.2.1992, 28.2.1992, 24.3.1992, 30.5.1992, 4.4.1992 and on 3.12.1991 by showing lesser balance of stocks of the

fertilizers as fond in the stock balance register page Nos. 44, 42, 37, 4, 36, 38 and 33, the accused has committed misappropriating of valuables

to the worth of Rs. 29,610.15.

With regard to the misappropriation of funds of Rs. 6,747.85, the allegation that on 7 different dates such as 16.9.1991, 24.9.1991,

19.10.1991, 3.12.1991, 18.1.1992, 10.1.1991, 13.9.1991 the collection of money made by the accused in his capacity as the Secretary of the

Society deliberately shown lesser figures than the collected amount to the worth of Rs. 6,747.85 fortified by references found n page Nos.

2,97,99,101,108, 113 and 170 of the daily ledger of the Society looks patent and there is no escape for the accused. Ex.P.106 is an important

document which has been given and P.W.10 Dasarathan has deposed in his evidence with all authenticity as to how the misappropriation has been

done in a calculated manner. A plain reading of Exs.P. 1, 2, 6, 15, 16, 51, 53, 54, 60 and 62 would amply prove the falsification of accounts done

by the accused. The entrustment is admitted by the accused in Ex.P.106.

A perusal of the well reasoned judgments of the courts below supported by documentary proofs would go to show that the appellate court has

rightly convicted and sentenced the accused for the offences under Sections 408 and 477A IPC and finding no escape from the clutches of law,

the learned Counsel for the revision petitioner at last, prayed for invocation of Section 360 of the Code of Criminal Procedure or Sections 3 or 4

of the Probation of Offenders Act to release the accused on Probation after due admonition or probation of the offender on showing good

conduct.

The maximum term of imprisonment prescribed for the offences under Sections 408 and 477A IPC is seven years and in the present case, the

accused has been convicted for a term of one year rigorous imprisonment with fine of Rs. 2000/= u/s 408 IPC, in default to undergo Six months

R.I.,

It is not in dispute that Section 360(1) provides for passing of an order to release an accused not under 21 years convicted of an offence

punishable with fine only or with imprisonment for a term of 7 years or less, on probation of good conduct when no previous conviction is proved

against the offender, if it appears to the court, regard being had to the age, character or antecedents of the offender, and to the circumstances in

which the offence was committed, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with

or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in

the meantime to keep the peace and be of good behaviour. From the records it is seen that the age of the accused is only 43 years. Since the age

of the accused has to be taken as the first criteria to invoke Section 360(1) Cr.P.C., I am of the view that this Section is not applicable to the facts

of this case.

Section 4(1) of the Probation of Offenders Act, 1958, enables this Court to release a person who is found guilty of having committed an

offence not punishable with death or imprisonment for life and the Court, having regard to the circumstances of the case, including the nature of the

offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in

any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his

entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as

the court may direct, and in the meantime to keep the peace and be of good behavior.

In the facts and circumstances of the case and taking into consideration, the nature of offence committed by the accused, the plight of the family

members of the accused, the lapse of period during which the accused suffered mentally, physically and economically, and there being no previous

conviction or adverse remark as to the character or antecedents of the accused, this Court inclines to let off the accused on probation of good

conduct as provided u/s 4(1) of the Probation of Offenders Act, 1958 assuring good conduct and behaviour for a period of two years. However,

considering the fact that the accused has committed criminal breach of trust and falsification of Cooperative Bank''s accounts and thereby the

Cooperative Bank has sustained a loss in a sum of Rs. 53,843/=, u/s 5(1)(a) of the Probation of Offenders Act, 1958, the accused is directed to

make good the loss by paying the said sum to the Cooperative Bank as compensation. As provided u/s 5(2) of the said Act, the amount ordered

above under Sub Section (1)(a) may be recovered as a fine in accordance with the provisions of Sections 386 and 387 of the Criminal Procedure

Code.

In the result, the Criminal Revision Cases are partly allowed confirming the conviction of the revision petitioner/accused under Sections 408

and 477A IPC and setting aside the order of sentence. The accused is released on probation of good conduct for a period of two years and in the

meantime to keep the peace and be of good behaviour, and to appear and receive sentence when called upon during such period. The accused is

directed to deposit the misappropriated amount of Rs. 58,843/= within a period of one month from the date of receipt of a copy of this order.

Apart from this, the accused shall execute a bond for a sum of Rs. 20,000/= with two sureties each for a like sum to the satisfaction of the trial

court.