The State Of Maharashtra vs Manohar Shivram Bugey
2017 Latest Caselaw 5588 Bom

                                                     Cri. Appeal No. 472/2000
                                           1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO. 472 OF 2000

The State of Maharashtra,
through Damodar Wasudeoacharaya
Apsingekar, Age 54 years,
Occu. Service, R/o. Beed.                              ....Appellant.

          Versus

Manohar s/o. Shivram Bugey,
Age 39 years, Occu. Treasury Officer,
Ashti, Now at Beed in Ganesh Nagar,
Tq. & Dist. Beed.                                      ....Respondent.

Mr. R.V. Dasalkar, APP for appellant/State.
Mr. S.D. Joshi, Advocate for respondent.
                                   CORAM   : T.V. NALAWADE AND
                                             SUNIL K. KOTWAL, JJ.

RESERVED ON : 03/08/2017 DECIDED ON : 04/08/2017 JUDGMENT : [PER T.V. NALAWADE, J.]

. The appeal is filed against judgment and order of R.C.C.

No. 154/1999, which was pending in the Court of Chief Judicial

Magistrate, Beed. The Trial Court has convicted and sentenced the

respondent, accused for offences punishable under sections 409,

467, 468, 471 and 201 of Indian Penal Code ( hereinafter referred to

as 'IPC' for short). As the substantive sentence is till the rising of the

Court, though total fine of Rs.5500/- is imposed, the State has come

in appeal for enhancement of the sentence. Both the sides are

heard.

Cri. Appeal No. 472/2000

2) The facts leading to the institution of the appeal can be

stated as follows :-

Accused was working as Sub Treasury Officer at Ashti.

The incidents involved were of for the period from 27.1.1997 to

15.5.1997. The incident of misappropriation came to be noticed by

higher authority when they were comparing, reconciling the

accounts of sub treasury office with the other record. It was noticed

that there was difference in the amount which was shown to be

withdrawn from sub treasury and the other relevant record. A

particular kind of modus operandi was used. When there was the

cheque of Rs.7,000/- for withdrawal dated 31.3.1997, in daily book

the amount was mentioned as Rs.17,000/- and actually the amount

of Rs.17,000/- was withdrawn. It was also noticed that the

respondent, accused had created false record of making payments

of amount from treasury as against lottery tickets of State Lottery.

Total amount was of Rs.65,000/-. Another modus operandi was

noticed that when the amount needs to be disbursed to the

institutions under the head of salary and other heads, more amount

was shown to be paid under those bills when the bills showed

different amount.

3) A notice was given by the Treasury Office to respondent,

accused of show cause and explanation was called with regard to the

Cri. Appeal No. 472/2000

aforesaid irregularities. In reply, the accused admitted that he had

created such false record and he had misappropriated the amount of

Rs. 65,000/-. The F.I.R. was then given in respect of these

irregularities and the crime came to be registered at C.R. No.

13/1998 in Ashti Police Station for aforesaid offences. After making

investigation and collecting the aforesaid record, chargesheet came

to be filed. Charge was framed for aforesaid offences. The accused

pleaded not guilty. The prosecution examined only one witness viz.

Damodar (PW 1), who was working in District Treasury Office. He

has given evidence about the aforesaid irregularities. The documents

which were scrutinized to ascertain irregularities are mentioned in

his evidence. His evidence shows that the accused was in a position

to withdraw the amounts due to his post. The procedure of making

disbursement of the amount on the basis of record like bills is given

by him in the evidence. The specific evidence is given in respect of

specific instances, making change in the amount like making it

Rs.17,000/- when the cheque was of amount of Rs.7,000/-, on

creation of false record of lottery tickets for withdrawal of the

amount under that head and on making over payments in respect of

the bills submitted to the Sub Treasury.

4) In the cross examination, it is only suggested to the

witness that accused had sent a letter to the office when show cause

Cri. Appeal No. 472/2000

notice was issued. He had admitted the guilt and then after holding

the departmental inquiry, he was compulsorily retired. It is

suggested that due to transfer from Gangapur to Ashti, he was

disturbed and he had challenged the transfer order. It is also

suggested that his Last Pay Certificate (LPC) was not received till

March 1997 by the next station and due to that salary was not paid.

Suggestion is also given that one son of accused was suffering from

cancer. Some suggestions of aforesaid nature are admitted by the

witness. But that does not mean that due to existence of such

problems, the accused was entitled to create the false record and

misappropriate the Government money. There is the letter dated

15.5.1997 written by the accused to the superior officer and it shows

that indirectly he had given threat of committing suicide. He,

however, admitted that he had become acquainted to one laundry

owner and due to that, he was addicted to bad vices. In the letter,

he had mentioned that his Service Book and LPC were sent late to

new station and he did not want to resume duties at new station. He

had contended that he was mentally disturbed as he was not liking

to work at that station and entire amount was spent by him on bad

vices.

5) In the evidence of Damodar (PW 1), the relevant record

is proved by prosecution as Exh. 19 to 35. Everything is a matter of

Cri. Appeal No. 472/2000

record. In the statement given under section 313 of Criminal

Procedure Code, the accused admitted the aforesaid evidence.

6) The aforesaid circumstances show that serious offence

was committed by the respondent - Sub Treasury Officer. He created

false record by using different modus operandi. Due to the nature of

modus operandi used by him, it cannot be believed that he was

mentally disturbed. Further, he admits that he was addicted to bad

vices and he spent entire amount which was around Rs.65,000/- on

bad vices during the aforesaid period. The Trial Court took a lenient

view due to the circumstance that the respondent is compulsorily

retired. The Trial Court also considered the circumstance that within

few days of notice, he deposited entire amount.

7) It needs to be kept in mind that when there is conviction

for offences of aforesaid nature, the employer, the State is entitled

to terminate person like the accused. If the departmental inquiry

was held prior to the conclusion of the case and he was compulsorily

retired, it can be said that proper procedure was not followed. When

it was not advisable, lenient view was taken in his favour by the

State. Due to these circumstances, it could not have been presumed

that already the respondent, accused had suffered. It is the duty of

the Court to see that the penalty is imposed in proportion of the

Cri. Appeal No. 472/2000

offences. On this point, both the sides placed reliance on some

observations made in following cases :-

(i) Judgment delivered by the Supreme Court in Criminal Appeal No. 1159/2012 dated 3.8.2012 [Sadhupati Nageswara Rao Vs. State of Andhra Pradesh],

(ii) Judgment delivered by Supreme Court on 9.11.2000 [Madhukar Bhaskarrao Joshi Vs. State of Maharashtra]

(iii) 2000 Cri.L.J. 2428 [State by P.S.I. Ilkal, Bijapur Vs. Hanamappa].

The facts and circumstances of each and every case are always

different. When the offence is punishable under section 409 of IPC,

the Court is not expected to take a lenient view. Though under

section 409 of IPC, no minimum period of imprisonment is

mentioned, the circumstance that maximum sentence of life

imprisonment is provided, needs to be kept in mind. That is done by

the legislature due to seriousness of such offence. This Court holds

that due to the nature of offence committed by the accused, it was

not proper on the part of the Trial Court to sentence him till rising of

the Court. Only because many years have passed since the decision

of the Court, this Court holds that atleast for some period like period

of six months, the respondent, accused needs to be kept in jail. In

the result, following order is made :-

ORDER

Cri. Appeal No. 472/2000

1) The appeal is allowed. The judgment and order

of the Trial Court is modified for enhancement of the

sentence. Sentence is enhanced as follows :-

2) For the offence punishable under section 409 of

Indian Penal Code, the accused is sentenced to suffer

rigorous imprisonment for six months and to pay a fine of

Rs.2000/-. In default of payment of fine, he is further to

undergo simple imprisonment for one month.

3) The accused is sentenced to suffer rigorous

imprisonment for six months for the offences punishable

under sections 467, 468, 471 of Indian Penal Code and he

is to pay fine of Rs.2000/-. In default of payment fine, he is

to undergo simple imprisonment for one month.

            4)                  The   substantive   sentences         are      to     run

            concurrently.

            5)                  The sentence for offence under section 201 of

            the Indian Penal Code is maintained.                   The respondent

accused to surrender to bail bonds for undergoing the

sentence.

       [SUNIL K. KOTWAL, J.]                    [T.V. NALAWADE, J.]

ssc/