Venkatesh S/O Dharamayya Panem vs The State Of Mah. Thr. P.S.O., P.S. ...
2017 Latest Caselaw 8228 Bom

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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

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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

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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

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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

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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.

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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.

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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