Bombay High Court
Mahsul Karmachari Sahakari Pat ... vs State Of Maha & Anr on 28 November, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 26 OF 2004
CRIMINAL REVISION APPLICATION NO. 28 OF 2004
* * * * *
CRIMINAL REVISION APPLICATION NO. 26 OF 2004
Mahsul Karmachari Sahakari Pat ..Applicant
Sanstha Limited, Parbhani,
Through Shri Sudam s/o. Sudarrao Jadhav,
Age. 35 years, Occ. Service,
R/o. Parbhani.
Versus
1. The State of Maharashtra ..Non-applicants
2. Avdhut s/o. Janardhan Kulkarni
Age. 52 years, Occ. Service,
R/o. Parbhani, Dist. Parbhani.
WITH
CRIMINAL REVISION APPLICATION NO. 28 OF 2004
Mahsul Karmachari Sahakari Pat ..Applicant
Sanstha Limited, Parbhani,
Through Shri Sudam s/o. Sudarrao Jadhav,
Age. 35 years, Occ. Service,
R/o. Parbhani.
Versus
1. The State of Maharashtra ..Non-applicants
2. Ramakant s/o. Achyutrao Chaudhari,
Age. 58 years, Occ. Service,
R/o. Nanal Peth, Parbhani.
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Mr. P.K. Ippar, Advocate h/f. Mr. S.J. Salunke, Advocate
for the applicants.
Mr. K.N. Lokhande, A.P.P. for non-applicant No.1/State.
Mr. S.P. Katneshwarkar, Advocate for non-applicant No.2
in Cri.Rev. Appln. No.26 of 2004.
CORAM : Z.A. HAQ,J.
DATED : 28.11.2016
ORAL JUDGMENT :-
. Heard. These two Criminal Revision Applications
can be disposed by common judgment, as they arise out of
the common judgment passed by the Sessions Court in the
appeals filed by the accused.
02. The case of the prosecution is that on the
report given by Mr. Shivprasad Nagori - Auditor on 1st
September, 1990, Crime No.128 of 1990 came to be
registered against both the accused for the offence
punishable under section 409 read with section 34 of the
Indian Penal Code. In the investigation, it was found
that accused No.1, who was the Chairman of the co-
operative society at the relevant time and accused No.2
who was working as the Junior Clerk with the co-operative
society at the relevant time had misappropriated an
amount of Rs.1,27,820=20, having retained the amount with
themselves. After investigation, the charge-sheet came to
be filed before the learned Chief Judicial Magistrate,
charge came to be framed and as the accused did not
accept guilt, the trial was conducted. After conducting
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the trial, the learned Chief Judicial Magistrate recorded
that the prosecution has proved that accused Nos.1 & 2,
being public servants and working as Chairman and Clerk
of the co-operative society, committed criminal breach of
trust by retaining the amount of Rs.1,27,820=20 during
the period from 1st July, 1986 till 30th July, 1998. The
learned Chief Judicial Magistrate convicted both the
accused for the offence punishable under section 409 read
with section 34 of the Indian Penal Code and sentenced
them to undergo rigorous imprisonment for one year and to
pay fine of Rs.5000/- and in default of payment of fine,
to undergo further rigorous imprisonment for three
months.
. Both the accused filed appeals before the
Sessions Court and challenged the judgment passed by the
learned Chief Judicial Magistrate. The learned Additional
Sessions Judge, by the impugned judgment, recorded that
the prosecution has failed to prove that the accused
retained an amount of Rs.1,27,820=20 in the capacity as
public servants working as the Chairman and Clerk of the
co-operative society and that the accused misappropriated
the above amount in the capacity as public servants. The
learned Additional Sessions Judge allowed the appeals and
set aside the judgment passed by the learned Chief
Judicial Magistrate convicting both the accused.
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03. The co-operative society has challenged the
judgment passed by the Sessions Court in this Revision
Application.
04. With the assistance of the learned Advocate for
the applicant/co-operative society and non-applicant No.2
in Criminal Revision Application No.26 of 2005 and the
learned A.P.P., I have examined the record and have gone
through the judgment passed by the learned Additional
Sessions Judge.
. The learned Additional Sessions Judge has set
aside the judgment passed by the learned Chief Judicial
Magistrate principally on two considerations;
(i) that both the accused were earlier
prosecuted for misappropriation of an amount of
Rs.2200/- and this amount is included in the
amount alleged to have been misappropriated, for
which the prosecution out of which this revision
arises came to be initiated against both the
accused;
(ii) that both the accused are not public
servants and therefore they could not have been
convicted.
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05. The considerations of the learned Additional
Sessions Judge are based on misconception of law. The
charge against the accused is that they have
misappropriated the amount of Rs.1,27,820=20 and the
prosecution cannot be said to be vitiated only because
the amount of Rs.2200/- which was earlier misappropriated
is included in the amount alleged to have been
misappropriated by the accused.
.
Similarly, conviction of both the accused was
for the offence punishable under section 409 of the
Indian Penal Code, which provision is not restricted in
respect of offence by public servant only. The learned
Additional Sessions Judge has erroneously applied the
judgment given by the Hon'ble Supreme Court in the case
of State of Maharashtra Vs. Laljit Rajshi Shah & Ors.,
reported in AIR 2000 SC 937 to conclude that the
conviction of the accused for the offence punishable
under section 409 of the Indian Penal Code is
unsustainable, as they are not public servants. The
judgment given in the case of Laljit Rajshi Shah
considered the legality of the prosecution for the
offence under section 5(1) and section 5 (2) of the
Prevention of Corruption Act, 1947 and not for the
offence under the Indian Penal Code.
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06. As I find that the very basis of the judgment
passed by the learned Additional Sessions Judge is
erroneous, the judgment is required to be set aside as
unsustainable in law and the matter is required to be
remitted to the Sessions Court for reconsideration. As
the matter is required to be remitted, I have not dealt
with the merits of the matter.
. Hence, the following order :-
(i) The judgment passed by the learned 3rd
Additional Sessions Judge, Parbhani, in Regular
Criminal Appeal Nos.38 of 1996 and 39 of 1996 on
09.10.2003 is set aside.
(ii) The matter is remitted to the learned
Principal Sessions Judge, Parbhani. The learned
Principal Sessions Judge may decide the appeals
himself or make them over to any other Court.
(iii) The learned Sessions Judge shall
decide the appeals after hearing the parties.
It is clarified that the parties should not be
permitted to lead further evidence and the
appeals shall be decided on the basis of the
material already on record.
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(iv) The Public Prosecutor and accused
No.2-Avdhoot s/o. Jankiram Kulkarni (Avdhut s/o.
Janardhan Kulkarni - as mentioned in cause title
of Cri.Rev.Application No.26 of 2004), shall
appear before the Principal Sessions Judge,
Parbhani on 16th January, 2017 at 11=00 a.m. and
abide by the further orders in the matter.
(v)
The interim orders, if any, which
operated during the pendency of the appeals,
shall continue to operate until further orders
are passed by the Sessions Court.
(vi) The present applicant - Mahsul
Karmachari Sahakari Pat Sanstha Limited,
Parbhani may seek permission of the Sessions
Court to assist the prosecution and oppose the
appeals.
. The Criminal Revision Applications are allowed
in the above terms.
[Z.A. HAQ,J.]
snk/2016/NOV16/crirev26.04
