Tara Chand vs State of Raj.

Banwari Lal Sharma, J.—The appellant has preferred this appeal under Section 374(2) Cr.P.C. against the judgment and order dated 09.03.1989 passed by the learned Special Judge, CBI, Jodhpur, in Criminal Original Case No. 11/1986, whereby the appellant-accused was convicted for the offences under Sections 409 and 477A IPC and Section 5(1)(D) read with section 5(2) of the Prevention of Corruption Act and was sentenced as under:-

U/s.409 IPC:

2 years'' rigorous imprisonment with a fine of Rs. 100/-, in default of payment whereof, to further undergo six months'' simple imprisonment.

U/s.477A IPC:

One year''s rigorous imprisonment with fine of Rs. 100/-, in default of payment whereof to further undergo six months'' simple imprisonment.

U/s.5(1)(D) and 5(2) of P.C. Act:

One year''s rigorous imprisonment with a fine of Rs. 100/-, in default of payment whereof, to further undergo six months'' simple imprisonment.

The brief facts of the case are that the appellant-accused was working as Chief Cashier in United Commercial Bank, Lohawat Branch in the year 1980. On 19.05.1980, Keshri Chand Suthar gave Rs. 400/- to him to be deposited in his SB A/c No. 184 on which he made entry in his pass-book and also put his initials but kept the said amount with him and was not registered in the bank record. Similarly, on 23.09.1980, one Paras Ram gave Rs. 200/- to the appellant-accused to be deposited in his SB A/c No. 155 for which also he made entry in the pass-book of Parasram and put his initials but kept the money with him and did not registered in the bank record. It was also alleged that the appellant-accused, on 18.09.1980, 03.10.1980 and 04.11.1980, while forging the signature of Manaram, disbursed Rs. 3000/- from his account and also made entries in the bank record to this effect and thus committed embezzlement of Rs. 3000/- from the SB A/c No. 19 of Manaram. On 22.12.1980, Manaram gave Rs. 5620/- to the appellant-accused to be deposited in his account on which he gave the receipt of Rs. 5620/- but in the counter-slip of bank only Rs. 4620/- were entered and thus embezzled Rs. 1000/-. On receiving this information, Superintendent of Police, CBI, Jaipur, registered a case and investigation commenced and after investigation, charge-sheet was filed in the court of Special Judge, CBI Cases, Jaipur on 28.02.2013. Thereafter, after hearing, the charges were framed against the appellant-accused for the offences under Sections 409, 467, 477A IPC and Section 5(1)(D) read with Section 5(2) of the Prevention of Corruption Act on 01.09.1983 to which he denied and claimed trial. On 10.12.1984, additional charge was framed for the offence under Section 471 IPC to which also he denied and claimed trial. On being formed the court at Jodhpur, the case was transferred and registered in the court of learned Special Judge, CBI Cases, Jodhpur (hereinafter referred to as ''the learned trial court'') on 09.10.1986.

To substantiate the charges, the prosecution examined as many as 16 witnesses and exhibited documents from Ex.P/1 to Ex.P/102 and also exhibited Article-1 to Article-13. The appellant-accused was, thereafter, examined under Section 313 Cr.P.C., wherein he denied the prosecution case and stated that he has been implicated falsely and examined Jora Ram (DW-1), Jagdish Prasad (DW-2), Ramuram (DW-3) and Ramesh Kumar Thakur (DW-4) in defence.

The learned trial court, after trial, vide impugned judgment of conviction and order dated 09.03.1989 convicted and sentenced the appellant-accused as aforesaid. Hence, this appeal.

I have heard Mr. S.G. Ojha, learned counsel for the appellant-accused and Mr. Panney Singh, learned Special Public Prosecutor and perused the available record.

The main contention of the learned counsel for the appellant-accused is that Kesri Chand (PW-2) and Paras Ram (PW-3) did not produce the counter-slip to show that they deposited the amount. Kesri Chand (PW-2) has not stated that the appellant-accused made entries in the passbook. It was also submitted that Parasram (PW-3) also could not disclose as to when he deposited Rs. 200/-. It was further submitted by him that there were contradictory opinions of the hand-writing experts. Ramesh Kumar Thakur (DW-4) clearly deposed that the hand-writing on the disputed document did not match with the hand-writing of the appellant-accused. It was thus submitted that the prosecution has failed to prove its case beyond reasonable doubt and prayed that the appeal may be allowed.

It was submitted that if this court does not deem it appropriate to allow the appeal, then in the alternative it was prayed that looking to the fact that the incident is of the year 1980 and only a meager amount of Rs. 600/- is involved and that the appellant is now about 76 years of age, his sentence may be reduced to already undergone and appropriate fine amount may be imposed.

Per contra, the learned Public Prosecutor supported the impugned judgment and order and submitted that the prosecution was successful in bringing home the guilt of the appellant-accused beyond the reasonable doubt. It was submitted by him that Ramesh Kumar Thakur (DW-4) in his cross-examination, clearly stated that the examination was not made in the laboratory and the examination was done while using magnifying glass. Whereas, V.K. Khanna (PW-16) stated in his statement that the examination was done by microscope in the laboratory. Thus, the report given by Shri V.K. Khanna was more authentic than the report of Ramesh Kumar Thakur (DW-4). It was also stated by him that all the prosecution witnesses stated in clear terms that the entries so made were in the hand-writing of the appellant-accused as they knew his writing and signature. The learned trial court, after carefully scrutinizing the evidence, has therefore rightly convicted and sentenced the appellant-accused which does not warrant any interference by this court and prayed that the appeal may kindly be dismissed.

On the alternative prayer of the learned counsel for the appellant for reducing the sentence to the sentence already undergone and imposing appropriate fine, it was submitted by the learned Public Prosecutor that since the matter is of the year 1980, therefore, Rs. 600/- cannot be treated as trivial and on this count, the sentence cannot be reduced. He placed reliance upon the judgment of the Hon''ble Supreme court delivered in the case of Sayyed Shabiralli Hafizali Vs. State of Maharashtra, .

I have considered the rival submissions made at the Bar.

From a careful scanning of the evidence, it reveals that all the witnesses have clearly stated that they knew the handwriting of the appellant-accused and the impugned entries were made by him. So far as non-submission of the receipt by Kesri Chand (PW-2) and Parasram (PW-3) is concerned, they have stated that since the entries were made in the pass-book, therefore, they did not take care to keep the receipt safely. It is true that receipts were issued but a prudent man, after getting the entry made in the pass-book, will not keep the receipt safely. Rather, there is no necessity to keep the same safely.

From the record, it also reveals that Kesri Chand (PW-2) deposited Rs. 400/- in his SB A/c No. 184 and to this effect entry was made in his pass-book (Ex.P/55) at Ex.P/11 and put his initials. Similarly, Parasram (PW-3) deposited Rs. 200/- in his SB A/c No. 155 and to this effect entry was made in his pass-book (Article-1) at Ex.P.14 and also put his initials. But, no entry was made in the ledger of the bank and Shri V.K. Khanna (PW-16), hand-writing expert, clearly opined that the aforesaid entries were in the handwriting of the appellant-accused.

So far as contradiction in the reports of handwriting experts is concerned, from the perusal of Ramesh Kumar Thakur (DW-4) it reveals that he admitted in his cross-examination that he did the examination from the magnifying glass without making comparison from the original and did the same from the photographs. Whereas Shri V.K. Khanna (PW-16) did the examination by microscope while making comparison of the specimen with the originals. Thus, the report given by Shri V.K. Khanna (PW-16) was more reliable than the report given by Shri Ramesh Kumar Thakur (DW-4).

Thus, the prosecution was successful in proving its case beyond reasonable doubt and the learned trial court, while considering all the aspects of the matter, has rightly convicted the appellant-accused which does not warrant any interference by this court.

Now comes the question regarding sentence. It was submitted by the learned counsel for the appellant that looking to the over-all facts and circumstances of the case and the fact that a meager amount of Rs. 600/-, his sentence may be reduced to the sentence already undergone and appropriate fine may be imposed.

In the case of Sayyed Shabiralli Hatizali (supra), the Hon''ble Supreme Court, while holding that at the time of incident, i.e. December 2, 1986, the amount of gratification cannot be said to be trivial and did not interfere with the sentence.

In the case in hand, the incident is of the year 1980 and an amount of Rs. 600/- is involved and thus this amount cannot be considered to be trivial. Thus, I do not deem it proper to interfere with the sentence awarded by the learned trial court.

In view of the above, I do not find any ground to interfere with the impugned judgment of conviction and order of sentence and the appeal deserves to be dismissed, which is hereby dismissed.

The appellant is on bail. His bail bonds stand cancelled. He is directed to surrender before the learned trial court to serve the remaining sentence.

Record of the learned trial court be sent back with a copy of this judgment.