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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO.21 OF 2010
Venkatesh s/o Dharmayya Panem,
Aged 42 years, Occ. Suspend,
R/o Sironcha, Dist. Gadchiroli ... Applicant.
-vs-
The State of Maharashtra
through Police Station Officer,
Police Station, Sironcha,
District Gadchiroli ... Non-applicant.
Shri S. Borkuta, Advocate for applicant.
Shri J. Y. Ghurde, Additional Public Prosecutor for non-applicant/State.
CORAM : A. S. CHANDURKAR, J.
DATE : October 30, 2017 Oral Judgment :
The applicant has filed the present revision application under Section 397 of the Code of Criminal Procedure, 1973 challenging his conviction in Regular Criminal Case No.278/2004 by the learned Chief Judicial Magistrate, Gadchiroli for having committed offence punishable under Section 409 of the Indian Penal Code (for short, the Penal Code). He was sentenced to suffer rigorous imprisonment for period of six months and to pay fine of Rs.1000/- . The appeal filed by the applicant herein has been ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 ::: J-REVN-21-10 2/8 dismissed by the Sessions Court.
2. It is the case of the prosecution that the applicant was working as Mail deliverer at Sironcha post office. One Rangu Lachana was the Postmaster. On account of suspension of said Postmaster, the applicant was holding additional charge of that post. This was for the period from May 2001 to December 2001. One Sandhya Rajmalayya Ranguwar, a minor was having a Recurring Deposit account in the said post office. An amount of Rs.3000/- per month was deposited in her account for one year for the period from May 2001 to April 2002. Though an amount of Rs.3000/- per month came to be deposited, this amount of Rs.36,000/- was not credited in the account of the minor. The Sub-Divisional Inspector paid a visit and on inspection found that though in the pass-book it was stated that Rs.48,000/- were received, the amount actually credited was only Rs.12,000/-. Thereafter on 25/06/2002, the applicant deposited the sum of Rs.36,000/- with interest. On the aforesaid basis, the offence came to be registered.
3. The prosecution examined three witnesses in support of the charge and by judgment dated 28/06/2007 the learned Chief Judicial Magistrate held that the entrustment of the aforesaid amount to the applicant being duly admitted was proved. It further held that the offence under Section 409 IPC had been duly proved and that the deposit of balance ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 ::: J-REVN-21-10 3/8 amount by the applicant was after the inquiry was held. On that basis the applicant came to be convicted. The appellate Court has maintained the order of conviction.
4. Shri S. Borkuta, learned counsel for the applicant submitted that both the Courts committed an error in convicting the applicant. No offence under Section 409 of the Penal Code had been made out. The applicant was merely holding the post of in-charge Postmaster as the erstwhile Postmaster had been suspended. The books of account were kept at the house of said Postmaster. The amounts in question along with interest were duly deposited by the applicant before the offence could be registered. It was submitted that the aforesaid would not indicate any misappropriation. Even if it is assumed that there was any such misappropriation, the same was only for a temporary period and the applicant by depositing the entire amount had clearly shown that there was no dishonest intention on his part to retain those amounts. He also referred to the evidence on record and submitted that in absence of any specified period for depositing the amounts collected, no offence had been made out on account of belated deposit. He relied upon following decisions in support of his submissions :
i) Chelloor Mankkal Narayan Ittirvi Nambudiri vs. State of Travancore-
Cochin 1953 AIR SC 478.
ii) Desai Champaklal Nemchand vs. The State 1961(1) Cri.L.J. 654.
iii) Nageshwar Pd vs. State 1970 AIR 1970 Patna 31.
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iv) Narendra Pratap Narain Singh and anr. vs. State of U.P. 1991 AIR SC
1394.
v) State of Rajasthan vs. Satya Narayan Laws (RAJ)-1968-2-8
5. Shri J. Y. Ghurde, learned Additional Public Prosecutor supported the impugned judgment. According to him the applicant was entrusted with the amount of Rs.48,000/-. He deposited only an amount of Rs.12,000/-
thus resulting in misappropriation of an amount of Rs.36,000/-. It was urged that applicant was holding the post of in-charge Postmaster and the deposit of aforesaid amount was only after the inquiry was held. He therefore submitted that the applicant had been rightly convicted and the order of conviction had been rightly maintained by the appellate Court. It was thus urged that no case for interference in exercise of revisional jurisdiction was made out. Reliance was placed on the following decisions :
a) Vishwa Nath vs. State of Jammu and Kashmir (1983) 1 SCC 215 b) Shob Nath vs. State 1975 Cri.L.J. 1122 c) Sakharam Pandusa Tapsi vs. State of Maharashtra 2007 Cri.L.J. 2201. d) Mustafikhan vs. State of Maharashtra (2007) 1 SCC 623.
6. With the assistance of learned counsel for the parties, I have perused the material placed on record. I have also gone through the evidence led by the prosecution. PW-1 Rameshwar who was working as Sub- Divisional Inspector was examined at Exhibit-20. In his deposition he stated ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 ::: J-REVN-21-10 5/8 that the account holder had raised a doubt about the amounts deposited in the post office account. On making inquiry and after verifying the entire records including pass-book, it was found that Rs.48,000/- were shown to have been received for deposit but the actual amount credited was only Rs.12,000/-. He stated that amount of Rs.3,000/- per month was not deposited from May 2001 to April 2002. The amount in question was recovered from the applicant. In his cross-examination he stated that the Post office was functioning from the premises of Rangu who was the Postmaster. He denied the suggestion that the amounts received from the account holder could be retained for a period of six months. He stated that he did not know that the Postmaster had avoided to give the records.
7. Father of the account holder was examined as PW-2 at Exhibit-25. He deposed that a Recurring Deposit account was opened with the Post office and signature was given on a blank withdrawal slip. In his cross- examination he stated that the Postmaster used to keep the books of account in his possession and the applicant was not having good terms with him. The Investigating Officer was also examined.
8. On consideration of aforesaid evidence, it was found that the amounts deposited for a period of one year were shown to have been entered in the pass-book but not actually deposited. This period was from May ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 ::: J-REVN-21-10 6/8 2001 to April 2002. It was further found that in the books of accounts entries from the period till 24/06/2002 had been written. On that basis, the offence was held to have been proved. The appellate Court noticed the endorsement made in the pass-book regarding deposit of those amounts along with the seal of the Post office. On that basis, it was found that despite the applicant receiving these amounts, the same were not credited but retained by the applicant.
9. In Narendra Pratap Narain Singh and anr. (supra) on which heavy reliance was placed by the learned counsel for the applicant, it has been observed that the dishonest intention of the accused therein had not been satisfactorily established. The amounts alleged to have been misappropriated were deposited by the accused therein before commencement of the investigation. It was also noticed that the departmental circulars were not been strictly followed by way of practice. On that basis it was held that offence under Section 409 had not been made out. In Satya Narayan (supra) it was held by the Rajasthan High Court that the failure to deposit the money collected would not by itself amount to dishonesty unless other circumstances to prove the same are also proved.
In Vishwanath (supra) it was held by the Honourable Supreme Court that a public servant after detection depositing the amount of defaulcated money would not absolve him of the offence already committed. ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 :::
J-REVN-21-10 7/8 Similarly in Mustafi Khan (supra) it has been held that if the entrustment is proved or admitted, it is for the accused to discharge the burden that the obligation has been discharged.
10. The facts on record indicate that after the suspension of Postmaster, the applicant was holding the post of in-charge Postmaster. Amount of Rs.48,000/- deposited by the father of minor is shown to have been received in the pass-book but the actual amount credited was only Rs.12,000/- The defence that the erstwhile Postmaster used to keep books of account in his possession or that the applicant did not have good terms with him cannot be a justification for retaining the amount of Rs.36,000/- especially when the same were shown to have been received in the pass- book. The dishonest intention of the applicant becomes evident on the basis of aforesaid material on record. Similarly deposit of the said amount with accrued interest on 25/06/2002 is also not of much avail to the applicant inasmuch as the department had already commenced inquiry into the matter and it was found in that inquiry that the amount was not deposited by the applicant though received by him. The decisions relied upon by the learned counsel for the applicant on the aspect of temporary misappropriation do not assist his case considering the fact that the amount has been deposited after inquiry was held by the department. ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 :::
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11. I do not find the appreciation of evidence by both the Courts to be perverse so as to exercise revisional jurisdiction in favour of the applicant. Both the Courts have taken into consideration the entire evidence on record. The entrustment of the amount in question to the applicant as well as his dishonest intention in not accounting for that entrusted amount have been duly proved. I therefore do not find any merit in the revision application. The same is therefore dismissed. The bail bonds of the applicant stand cancelled. He is granted time of six weeks to surrender. Needless to clarify that the sentence already undergone by the applicant should be taken into consideration.
JUDGE Asmita ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:45 :::