Thangavel vs State

K.B.K. Vasuki, J.—The accused is the revision Petitioner herein. The revision is filed against the judgment dated 22.10.2007 made in C.A. No. 92 of 2007 on the file of Additional District-cum-Sessions Judge, FTC, Vellore confirming the judgment of conviction dated 29.10.2007 made in C.C. No. 1 of 2006 on the file of the Judicial Magistrate No. II, Vellore.

According to the prosecution, the Petitioner, who was the 2 President of Perumanthangal Milk Producers Cooperative Society, along with the Special Officer-Balasubramaniam and the Secretary-Varadhan (deceased) who was arrayed as A1 to A3 misappropriated the society funds and other amounts on different occasions and thereby committed the acts constituting the offences punishable under Sections 406 and 477A Indian Penal Code, 1860. The prosecution, in order to prove the guilt of the accused examined the Deputy Registrar, Tiruvannamalai region, Joint Sub Registrar of Milk producers society, then Inspector of Police who registered and investigated the complaint and the Inspector of Police who filed the charge sheet, as PW1 to PW4 witnesses and produced Ex.P1 to Ex.P22 documents.

The trial court, on the basis of the evidence adduced before the same, arrived at a conclusion that the prosecution failed to prove the guilt of A1/Special Officer and found that the President and Secretary of the society are responsible for the fabrication of the records and for misappropriation of the society fund but held the charges against deceased A3/Secretary as terminated and abated and convicted A2/President for the offence punishable u/s 406 (4 counts), 477A (4 counts) and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the second accused preferred C.A. No. 92 of 2007 and the appellate court dismissed the appeal by confirming the judgment of the trial court. Hence, this criminal revision by the accused before this Court.

It is contended by the learned Counsel for the Petitioner, that he being the President of the society during the relevant point of time is not empowered to deal with any financial matter and he is not entrusted with any money and he is not responsible for the maintenance of the documents and accounts and all the duties relating to the matters referred to above are entrusted with the Secretary of the society, since deceased and in the absence of any entrustment of the money or accounts with the Petitioner, the question of holding him guilty of any offence for any act of criminal misappropriation by converting the society money for his own use does not at all arise.

On the other hand, the learned Additional Public Prosecutor would make an attempt to defend the findings of the lower court on the basis of the evidence adduced before the same.

Heard the rival submissions made on both sides.

Originally, the charges are framed for the offence of criminal 4 misappropriation and fabrication of records of the society, with dishonest intention to misappropriate funds of the society, against the Special Officer, the President and the Secretary. The trial court after full-fledged trial found that the special Officer was having regard to the nature of his duties, not responsible in any manner either with the money transaction or maintenance of records of the society and the Special Officer is hence acquitted from the charges. Where as, the President and the Secretary of the society are found guilty of the offences by both the Courts below. During the pendency of the trial, the Secretary of the society died and though, the secretary of the society was found guilty of the charges, the charges are terminated against him and the only accused convicted for the offences by both the Courts below is A2-President of the society who is the Petitioner herein.

It is seriously contended by the learned Counsel for the Petitioner that the President was not assigned with any duties and responsibilities to deal with day today money matters or was in-charge of maintenance and stock accounts or records and as the Secretary is admittedly in-charge of the money matters, and the maintenance of records, the Secretary alone was responsible for the shortage of money and falsification of the records and the Petitioner who is the President of the society ought to have been, by applying the same yardstick for acquitting the Special Officer held to be not found guilty in any manner for the acts of misappropriation, and the act of fabrication of records committed by the Secretary, since deceased.

In order to appreciate the contention as stated above, the document to be looked into is the bye-laws of the society concerned produced before the lower Court as Ex.P14. The bye-law Clause 19 deals with the duties and responsibilities of the president which reveals that the president of the society has superintending authority and he is the custodian of the property and cash of the society and the Secretary shall carry on day to day affairs of the society under the authority of the president and the president shall supervise the day to day affairs and management of the society and shall make all arrangements to deposit the daily cash balance in the bank. If that is so, the Petitioner-A2/President is also responsible for the cash balance of the society and for sending the cash balance to the bank immediately. As one of the allegations against the President and Secretary is the shortage of cash balance by fabricating the documents with misappropriation money belonging to the society for own use and as 6 the President is charged for the offence of abetting the Petitioner/A2 cannot be permitted to raise the contention that he is in No. manner responsible for the cash balance and day today affairs and management in the society. As the maintenance of record register and account is also one of the day today affairs of the society, the falsification of the records could not have escaped the attention of the president who has over all superintending authority of the affairs of the society. That being the factual state of affairs the prosecution case is to be necessarily believed and the courts below have hence rightly found the Petitioner/A2 to be guilty of the offences charged against him and No. ground much less valid ground is made out to disagree with the findings rendered by the Courts below.

However, the learned Counsel for the Petitioner would seriously appeal to this Court to modify the sentence of imprisonment imposed by the courts below on the ground that the Petitioner/A2 being 80 years old, is hospitalized and he is unable to move. The same is also verified through the learned Additional Public Prosecutor and found to be true. In that event, this Court is inclined to modify the sentence of imprisonment by enhancing the fine amount to Rs. 5000/- each count for the offences u/s 406 Indian Penal Code, 1860 (4 counts) and 477(a) Indian Penal Code, 1860 (4 counts) by enhancing the payment of fine of Rs. 5,000/-.

In the result, the criminal revision is partly dismissed by confirming the judgment of conviction passed by the courts below and partly allowed by modifying the period of sentence of imprisonment into one of payment of fine of Rs. 5,000/- in default to undergo two months simple imprisonment for each counts for the offences under Sections 406 Indian Penal Code, 1860 (4 counts) and 477(a) Indian Penal Code, 1860 (4 counts).