Bombay High Court

F.D.C.M.) Ballarshah vs This Revision Application Is ... on 18 December, 2009

Bench: S. S. Shinde

                                          1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH NAGPUR




                                                                                    
           Criminal Revision Application No. 160/2003




                                                            
             Azamtullah s/o Asatullah Sheikh,
             aged 54 years, Range Forest Officer,
             Forest Development Corporation Ltd.




                                                           
             (F.D.C.M.) Ballarshah,Dist. Chandrapur.
                                                .. APPLICANT

                             .. Versus ..




                                             
             State of Maharashtra, thr. Police Station
             Officer, Police Station, Ballarshah,
                           
             Dist. Chandrapur.               .. NON APPLICANT

     ---------------------------------------------------------------------------------
                          
     Mr. G. S. Bapat, Advocate for applicant.
     Mr. S. S. Doifode, A.P.P. for non applicant.
     ---------------------------------------------------------------------------------

     CORAM:- S. S. SHINDE, J.
      


     Date of Reserving the Judgment:-   10.12.2009
   



     Date of Pronouncing the Judgment:- 18.12.2009


     JUDGMENT

1. This revision application is filed challenging

judgment and order of conviction dated 30.08.2003

passed by Additional Sessions Judge, Chandrapur in

Criminal Appeal No. 55/1995 confirming judgment and

order of conviction dated 18.07.1995 in Regular Criminal

Case No. 210/1984 passed by Chief Judicial Magistrate,

Chandrapur convicting the accused for the offence

punishable under Sections 420, 409 and 477-A of the

Indian Penal Code. Brief facts of the case are as under.

2. The applicant-accused was working as Range

Forest Officer in Technical Division the Forest Department.

However, he was serving on deputation in Forest

Development Corporation at Ballarshah. He was assigned

the work of making payment of the workers under him

from time to time and to serve the same purpose the

Corporation has given him advance.

The applicant/accused submitted the accounts

for the month of January and February in respect of said

advance to his office on 27.02.1980. After verifying the

accounts, it was found that accused by No. PTB/28/1/80

dated 27.01.1980, an amount of Rs.72,500/- has shown

as transfer to one N.A.S. Faruki, Range Forest Officer,

Pediguddam Division, Alapalli.

It is further submitted by the applicant that

when complainant-Divisional Manager Shri P. D. Ambaskar

made enquiry with the concerned Divisional Office at

Pediguddam, he found that no such amount of Rs.72,500/-

was given to N. A. S. Faruki. It is alleged that the

accused, instead of crediting the amount of Rs. 72,500/-,

which is the Government money, to Treasury or to the

superior officer, misappropriated same by showing that

said amount has been paid by him to N.A.S. Faruki.

The complainant lodged report against the

accused in Police Station, Ballarshah on 01.03.1980.

Police Station, Ballarshah carried out necessary

investigation pertaining to the offence, collected

necessary documents, recorded statements of witnesses

concerning the offence and submitted the charge-sheet

against the accused.

Learned Magistrate framed charge under

Sections 409, 420 and 477-A of the Indian Penal Code

vide Exh.-9. Contents of Charge were read over and

explained to accused, who pleaded not guilty and claimed

to be tried. His defence was that though he was having

Government money to the extent of Rs. 72,500/-, he paid

the same to N.A.S. Faruki, Range Forest Officer,

Pediguddam, as per oral instructions of his superior

P.D.Ambaskar and thus claimed himself to be innocent.

It is an admitted fact that the applicant/

accused was working as Range Forest Officer and was on

deputation in Forest Development Corporation at

Ballarshah. He also admitted that he was having amount

of Rs. 72,500/-, the Government money collected by him

for and on behalf of the Forest Department. Learned

Magistrate framed necessary points for determination and

after appreciating evidence brought on record and after

hearing rival contentions, by judgment and order dated

18.07.1995 convicted the applicant/ accused under

Section 420, 409 and 477-A of the Indian Penal Code and

sentenced to suffer Rigorous Imprisonment for two years

and to pay a fine of Rs.1,000/- in default to suffer S. I. for

three months for the offence punishable under Section

420 of the Indian Penal Code. Rigorous imprisonment for

two years and to pay a fine of Rs. 1,000/- in default to

suffer S.I. for three months for the offence punishable

under Section 409 of the Indian Penal Code. Rigorous

Imprisonment for two years and to pay a fine of

Rs. 1,000/- in default to suffer S.I. for three months for the

offence punishable under Section 477-A of the Indian

Penal Code.

Being aggrieved by judgment and order

passed by learned Chief Judicial Magistrate, Chandrapur,

the applicant herein filed Criminal Appeal No. 55/1995

before the Court of Sessions at Chandrapur. The learned

Sessions Court, Chandrapur by his judgment and order

dated 30.08.2003 partly allowed the appeal filed by

applicant herein. Judgment of the learned Magistrate in

Regular Criminal Case No. 210/1984 convicting the

applicant/accused under Section 420 of the Indian Penal

Code and sentencing him to suffer R.I. for two years and

to pay a fine of Rs. 1,000/- in default to suffer S. I. for

three months came to be set aside. Fine of Rs. 1,000/-

paid by accused for the offence punishable under Section

420 of the Indian Penal Code was directed to be returned

to the applicant after appeal period is over. So far as

order passed by learned Magistrate convicting the

applicant-accused for the offence punishable under

Section 409 and 477-A of the Indian Penal Code, the same

is confirmed by the appellate Court. Hence, this revision

is filed by the applicant.

3. Learned counsel for the applicant submitted

that on 27.01.1980, as per oral order of the Divisional

Manager (PW3), accused paid the amount of Rs. 72,500/-

to N.A.S. Faruki (PW5) Range Forest Officer, Pediguddam

Division, Alapalli and obtained the receipt on back side of

Exh.-24.

It is further submitted that PW5 dishonestly

refused to have received said amount from the accused

and, therefore, on 01.03.1980 concerned Divisional

Manager at Pediguddam Shri P. D. Ambaskar (PW3) lodged

complaint (Exh.-26) with Police Station Ballarshah alleging

therein that the applicant/accused has misappropriated

amount of Rs. 72,500/-. According to learned counsel,

there was delay of more than a month in lodging First

Information Report and there is no plausible explanation

for the said inordinate delay which is fatal to the

prosecution and, therefore, applicant ought to have been

acquitted by the Courts.

4. Learned counsel for the applicant further

submitted that the learned Magistrate was not competent

to try the offence punishable under Section 409 and 477

of the Indian Penal Code and resultantly he was not also

competent to frame charge for offence under these

sections. Therefore, charge against the applicant at Exh.-9

being hit by Section 240 of the Code of Criminal

Procedure was non est in the eyes of law and, therefore,

both the Courts below ought to have held that the

proceeding founded on Exh.-9 are vitiated and ought to

have acquitted the accused on aforesaid counts

respecting Ruling in Shankar..vs..State of Rajasthan

1984 Cri. L. J. NOC-70 (Raj.). It is further submitted

that there was no compliance of mandatory provisions of

Section 157 of the Code of Criminal Procedure and no

plausible explanation has been given for its non-

compliance which is fatal to the prosecution in view of

decisions of the Hon'ble Supreme Court. It is also further

submitted that the accused is alleged to have forged the

signature of N.A.S. Faruki (PW5) and made false

complaint at Exh.-24. The prosecution referred document

at Exh.-24 to the Handwriting Expert for examining the

specimen signature, who gave his opinion on it. As such

the whole prosecution was founded on document at

Exh.-24 and when the Handwriting Expert had given his

opinion in respect of it, the prosecution ought to have

examined the handwriting expert but prosecution failed to

do so and thus deprived the applicant/accused of his legal

right to cross-examine him. It is further submitted that

applicant/accused was public servant and alleged to have

committed the offence while acting in discharge of his

official duty and, therefore, as per section 197 of Criminal

Procedure Code, prior sanction of Government of

Maharashtra was necessary before taking cognizance.

The learned trial Court has gravely erred in taking

cognizance of absence of prior sanction. Therefore, whole

proceeding is void ab initio and the applicant/accused

ought to have been acquitted obeying number of

judgments by the Supreme Court on the point. It is further

submitted that both the Courts below have erred in

convicting the accused for the offence punishable under

Section 409 and 477-A of the Indian Penal Code and,

therefore, applicant/accused deserves acquittal quashing

and setting aside judgment and order of conviction

impugned in this revision by allowing this revision

application.

5. On the other hand, learned A.P.P. for the State

submitted that the prosecution case is that the accused

was serving as Range Forest Officer in Technical Division

of Forest Department and his work was to make payment

of the workers and the persons working under him. The

Forest Department Corporation, Ballarshah used to give

him advance for the purpose of making payment. On

27.02.1980, the applicant/accused submitted account of

advance of January and February, 1980. It was noticed

that amount of Rs. 72,500/- was shown to have been

transferred to N. A. S. Faruki, Range Forest Officer,

Pediguddam Division, Alapalli. The concerned Divisional

Manager of the Corporation, P. D. Ambaskar (PW3) has not

given prior permission to pay said amount to

N.A.S. Faruki (PW5). As such the accused has done his

work without permission of the complainant with an

intention to misappropriate said amount. Therefore, he

has fabricated said receipt Exh.-24, which is not signed by

N. A. S. Faruki PW5. PW5 has also stated that he has not

received said amount and also has not signed on Exh.-24.

6. Learned A.P.P. has further submitted that on

enquiry it is found that the accused has not given amount

of Rs. 72,500/- to N. A. S. Faruki, Range Forest Officer,

Pediguddam Division and, therefore, complainant lodged

report. It is further submitted that the applicant/accused

withdrawn the money without prior permission to transfer

said amount from superiors i.e. complainant. It is further

submitted that the cash books at Exh.-16 and 17 have

been seized wherein there is entry in respect of amount of

Rs. 72,500/- paid to N. A. S. Faruki (PW5) and said entry

has been taken as per direction of applicant/ accused by

the clerk of said office i.e. Prabhakar (PW1). So far as

receipt Exh.-24 about payment of Rs.72,500/- dated

21.01.1980 is concerned, it has been seized from the

office on 30.03.1980, at the time of seizure of said receipt

P. D. Ambaskar (PW3) has signed on Exh.-24.

7. Learned A.P.P. further submitted that the

prosecution examined Prabhakar (PW1), clerk of the office

of accused, who has specifically sated that he has written

cash book Exh.-16 and 17 as per directions of applicant/

accused, wherein shown entry about payment of

Rs.72,500/- to N.A.S. Faruki (PW5). Learned A.P.P. further

submitted that P. D. Ambaskar (PW3)-Divisional Manager

has specifically deposed that he has directed to Assistant

Manager (PW4) to make enquiry about the entry in cash

book of the accused wherein it is found that the accused

has not made payment of amount of Rs. 72,500/- to N. A.

S. Faruki (PW5) and even though shown it on Exh.16 and

17, said amount has been misappropriated. The learned

A.P.P. further submitted that Mohd. Abdul Rauf Khan

(PW4), Assistant Manager, Ballarshah has made enquiry

about receipt book of the accused and it is found that the

accused has not paid Rs. 72,500/- to N. A. S. Faruki (PW5)

and even though taken entry in cash book Exh.-16 and 17

and misappropriated said amount. N. A. S. Faruki (PW5),

Range Forest Officer, Pediguddam Division, Alapalli has

specifically stated that he has not received amount of Rs.

72,500/- from applicant/accused as well as she has not

signed on receipt about the payment i.e. Exh.-24 as such

he denied signature on Exh.-24. Learned A.P.P. submitted

that Shantaram Jagan (PW2)/Panch has proved about the

seizure of cash book Exh.-16, 17 and 23. It is further

submitted by learned A.P.P. that Manohar (PW6) is panch

in whose presence specimen signature of N. A. S. Faruki

(PW5) has been taken. Maroti (PW7), Ramesh (PW8),

Maroti (PW0) and Sallaudin (PW10) are the panchas.

Ramesh (PW11) is Investigating Officer, who has deposed

as per investigation done by him. Learned A.P.P. on the

basis of evidence brought on record by prosecution and

appreciated by both the Courts below submitted that

there are concurrent findings of Courts below after

appreciation of evidence brought on record and thereby

applicant/accused came to be convicted under Section

409, 477-A of the Indian Penal Code. Therefore, learned

A.P.P. would submit that no case is made out in the

present revision application to interfere by upsetting

concurrent findings recorded by Courts below. The

learned A.P.P. further submitted that alleged act/offence

committed by applicant is nowhere connected with his

official duties and, therefore, there was no question of

obtaining any sanction to prosecute the applicant/

accused. The learned A.P.P. further submitted that by this

time, it is well settled by catenna of decisions of Hon'ble

Supreme Court and this Court that sanction is required

only if Government servant has done any act in discharge

of his official duty. Therefore, learned A.P.P. would submit

that the sanction to prosecute the applicant was not

necessary. Therefore, the learned A.P.P. submitted that

this revision is devoid of any merits and the same

deserves to be dismissed.

8. I have heard learned counsel appearing for the

applicant as well as learned A.P.P. at length. At this

juncture, it would be relevant to refer to some of the

judgments of this Court as well as Hon'ble Supreme Court

on the point of scope of revision. This Court, in the case

of Balkrishna Pandurang Moghe..vs..State of

Maharashtra and anr; 1998 (3) Mh. L. J. 331, in para

31 of the judgment, has observed as under:-

"31. As indicated earlier, at the behest of the learned counsel for the petitioner, we have

gone through the evidence and we find no

illegality or perversity in the approach or findings of the two Courts below. We may only refer to few decisions on the limitations

of the powers of this Court in a Criminal revision. In Duli Chand vs. Delhi Administration, AIR 1975 SC 1960, The Apex

Court held in para 4 that the jurisdiction of the High Court in Criminal Revision Application is

severely restricted and it cannot embark upon a reappreciation of the evidence. Similarly in

Pathumma and anr vs. Muhammad, AIR 1986 SC 1436, the Apex Court held that High Court was in error in making reassessment of the

evidence and holding that the child was not an illegitimate child while dealing with the

application for maintenance under section 125 of the Code of Criminal Procedure. The

High Court had, in its revisional jurisdiction, substituted its own findings and disturbed the finding recorded by the learned Magistrate on the question of fact. This was not approved

by the Apex Court and order of the High Court was set aside. In State of Karnataka vs. Appa Balu Ingale and others, 1993 Cri.L.J. 1029, the Apex Court held that when the Trial Court and

the Appellate Court had, on appreciation of the evidence on record, reached a concurrent

finding that charge against the respondent

accused was proved beyond reasonable doubt, ordinarily it was not open to the High Court to interfere with the concurrent findings

of fact recorded by the two Courts below by reappreciating the evidence in a revisional jurisdiction. The Apex Court, therefore,

allowed the appeal and set aside the order of the High Court and restored that of the

Appellate Court."

The Hon'ble Apex Court, in the case of State

of Maharashtra ..vs.. Jagmohan Singh Kuldip Singh

Anand and others with Satish Kaur Sahni ..vs..

Jagmohan Singh Kuldip Singh Anand and others;

(2004) 7 Supreme Court Cases 659; held that the

revisional powers of the High Court cannot be exercised

as second appellate power. In exercise of revisional

power the High Court cannot undertake indepth and

minute re-examination of entire evidence and upset

concurrent findings of trial court and first appellate court.

In the case of Raj Kumar ..vs.. State of Himachal

Pradesh; (2008) 11 Supreme Court Cases 76. In

para 10 of the Hon'ble Apex Court observed as under:-

"10. In State of Orissa v. Nakula Sahu it was

held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions

Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the trial court or the Sessions Judge."

In the igcase of Ghanshyam s/o Vithal

Garje ..vs.. State of Maharashtra; 2009 (1) Mh. L. J.

(Cri.) 299 in para 11 held that, "The Revisional Court

cannot reappreciate the evidence in the exercise of the

Revisional jurisdiction. The Apex Court in Duli Chand vs.

Delhi Administration, AIR 1975 SC 1960, held that

jurisdiction of the High Court in Criminal Revisional

jurisdiction is severely restricted. It is held that the High

Court cannot embark upon reappreciation of evidence in

the exercise of Revisional jurisdiction. It is also well

settled that the Revisional jurisdiction is normally to be

exercised only in exceptional cases where there is a

glaring defect in the procedure or there is a manifest

error or patent error committed in ignorance of law which

has resulted in flagrant miscarriage of justice. The

concurrent findings of facts cannot be disturbed,

ordinarily, in the exercise of Revisional jurisdiction unless

it is demonstrated that the findings are based on

perfunctory appreciation and the process of finding is

without well grounded reasoning...."

The Hon'ble Apex Court in the case of State

of Karnataka ..vs.. Appa Balu Ingale and others;

AIR 1993 Supreme Court 1126; held that the

concurrent findings arrived at by two Courts below are not

to be interferred with by the High Court in the absence of

any special circumstances or unless they are perverse.

On perusal of the aforesaid pronouncements,

the scope of revision is limited. keeping in view the

aforesaid pronouncements of the Apex Court and this

Court, the present revision application required to be

considered.

9. At this stage, it would be relevant to mention

that there is procedure in department to transfer the

amount from one division to another and said transfer is

not permissible even within divisions unless permission of

Divisional Manager is obtained. In this regard, the

applicant/accused had taken a defence that he paid

amount of Rs. 72,500/- to N. A. S. Faruki, Range Forest

Officer, Pediguddam Division, Alapalli as per oral

instructions of his superior i.e. Divisional Manager P. D.

Ambaskar (complainant) and as such he has not

misappropriated any amount and has not committed any

offence.

10. It is an admitted position that for any financial

transaction in the Department, as per Rules laid down,

written permission/instructions are necessary. Therefore,

in the absence of written instructions, if the applicant-

accused had withdrawn money that act itself is illegal

and, therefore, there is no question of obtaining any

sanction from appointing authority or State as the case

may be since very act of the applicant/accused is illegal

and is not part of his official duties. Therefore, the point

raised by the applicant that there was no sanction to

prosecute him, is devoid of any merit. Both the Courts

have properly appreciated contention raised by the

applicant as well as prosecution and correctly recorded

the finding that in the present case, it was not necessary

to obtain sanction to prosecute the present

applicant/accused.

11. It is borne out from the facts on record that

account of advance of January and February 1980 was

submitted by applicant on 27.02.1980. Immediately,

thereafter on 01.03.1980, First Information Report was

lodged. The courts below have scrutinized and

appreciated the evidence of the prosecution witness and

after giving proper opportunity to the applicant-accused

to defend his case, both the Courts have convicted the

applicant/accused under Section 409 and 477-A of the

Indian Penal Code. It has come in the evidence of

Prabhakar (PW1) that, the Range Forest Officer has no

authority to transfer any amount to different division

without obtaining sanction from Divisional Manager.

Prabhakar (PW1) specifically deposed that Exh.-18 was

completed by accused in his own handwriting. The

evidence of Prabhakar (PW1) has not been challenged by

accused in cross-examination. Panchanama Exh.-23 under

which cash book was seized is proved by Shantaram

Jagan (PW2). He also stated that apparently (receipt at

Exh.-24) was also seized in his presence. On scrutiny of

the account, it was found that the amount of Rs. 72,500/-

was shown to have been transferred by accused-applicant

to N. A. S. Faruki, and, therefore, he instructed Mohd.

Abdul Rauf Khan (PW4) to verify the account. Mohd.

Abdul Rauf Khan has stated that said N. A. S. Faruki, was

not working in his Division and, therefore, payment was

not permissible as per rules. Mohd. Abdul Rauf Khan

(PW4) on verification found that no such transaction took

place and there was no entry in the cash book of

Pediguddam Division. It has come in his evidence that

the Divisional Manager of Pediguddam Division was

ignorant of the transaction and as such he made

complaint on 01.03.1980 to Police Station, Ballarshah. He

proved complaint at Exh.-26.

It is also pertinent to note that N. A. S. Faruki

(PW5) has specifically stated in his evidence that he did

not make request to accused-applicant to transfer the

amount and Rs. 72,500/- .

12. The Sessions Court in para 18 of his judgment

has recorded the finding that the accused and applicant

failed to prove that he really transferred the amount to

N. A. S. Faruki (PW5). The Court has further observed that

assuming for a moment, he has transferred the amount

yet the offence of misappropriation is complete as soon

as he transferred the amount without any authority to

somebody else.

13. It is not necessary to go into details of the

matter since both the Courts have concurrently held

against the applicant/accused and convicted him for the

offence as alleged against him. Suffice it to say that

evidence of the prosecution witness is consistent and is

not shattered in cross-examination. Basic fact remains

that the applicant/accused did not obtain written

permission or instructions from superiors to withdraw the

huge amount of Rs. 72,500/- and, therefore, his act was

illegal and also contrary to the relevant rules prescribed

for financial transaction. The amount of Rs. 72,500/- in

the year 1980 is very substantial amount and the said

amount had been withdrawn and misappropriated by

applicant/accused by preparing forged receipt in the

name of N. A. S. Faruki (PW5). It has clearly come on

record that it is not permissible to transfer the amount

from one Division to another unless there is specific

written instructions from the Divisional Manager.

Therefore, both the Courts have properly appreciated the

evidence brought on record and had reached to a definite

conclusion and convicted the applicant/accused. After all,

the amount of Rs. 72,500/- that too in the year 1980 was

a very huge amount which was withdrawn and

misappropriated from public treasury. Therefore, it was

not necessary to obtain sanction to prosecute the

applicant/accused since his said act was not within his

official duties. There is also no substance in the

contentions of counsel appearing for the applicant that

there was delay in lodging the First Information Report

since it has come on record that the applicant/ accused

has submitted the accounts for the month of January-

February-1980 on 27.02.1980 and after proper verification

immediately on 01.03.1980 the First Information Report

is lodged.

14. The point of sanction to prosecute a public

servant is concerned, the Hon'ble Supreme Court in the

case of Bholu Ram ..vs.. State of Punjab and

another; 2008 (4) Mh. L.J. (Cri.) 533 in para 68 held

as under:-

"68. We express our inability to agree with the learned counsel. It is settled law that

offences punishable under Sections 409, 467,

468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while

'acting or purporting to act in discharge of official duty' [vide Prakash Singh Badal vs. State of Punjab, (2007) 1 SCC 1]

15. Thus, viewed from any angle, no case is made

out to upset concurrent findings recorded by courts below.

The appreciation of evidence by both the Courts is in

consonance with the law of evidence and also there is no

perversity in the findings recorded by the Courts below.

The case of applicant does not fit in any of the

parameters and, therefore, the revision application is

devoid of any merits and liable to be dismissed.

16. In view of above, the revision application is

dismissed. Rule discharged.

The applicant shall surrender before the Court

of Sessions, Chandrapur within three weeks from today to