Bombay High Court
Vishwanath Fakira Khade vs State Of Mah. Thr. Pso Ps ... on 19 April, 2022
Bench: Avinash G. Gharote
42crrevn56.22.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION NO.56 OF 2022
Vishwanath Fakira Khade
...Versus...
The State of Maharashtra
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. R.J.Shinde, Advocate for the applicant
Mr. S.S.Doifode, APP for Respondent/State
CORAM : AVINASH G. GHAROTE, J.
DATE : 19/04/2022
1] Heard Mr. Shinde, learned counsel for the
applicant and Mr. Doifode, learned APP for respondent/State.
2] The present application challenges the judgment
dated 1.2.2010 passed by the learned JMFC Court No. 2,
Mangrulpir in Regular Criminal Case No. 42/2005, whereby
the present applicant has been convicted for the offence
punishable under Section 408 of the IPC and sentenced to
simple imprisonment of six months and a fine of Rs. 1000/-, in
default, simple imprisonment of one month (pg. 23). This
judgment has been confirmed in appeal by the learned
Sessions Court by the judgment dated 22.2.2022 in Criminal
Appeal No. 103/2013, by dismissing the appeal.
42crrevn56.22.odt
3] Mr. Shinde, learned counsel for the applicant
submits that the prosecution arises out of the same set of facts
on which a domestic enquiry was conducted by the
Department against the applicant, in which the finding of the
Enquiry Officer dated 4.10.2005 regarding the alleged guilt of
the applicant was quashed and set aside by the learned Labour
Court in Complaint ULP No. 46/1996 by the judgment dated
12.1.2007 (pg. 2 of the pursis dated. 21.3.2022), in which
enquiry the same witnesses namely PW-1 Kashiram, the
Branch Manager; Vasant PW-2 and Bhimrao PW-3, Senior
Inspector were examined and their evidence has been
disbelieved (para 23, page 14 of the pursis) and the order of
dismissal of the applicant was set aside and the applicant was
directed to be reinstated with full back-wages. A revision
carried to the learned Industrial Court by the complainant -
the Akola District Central Co-operative Bank Ltd., vide
Revision ULP No. 9/2007 came to be dismissed by the learned
Industrial Court by the judgment 15.1.2015, in which, it has
been categorically held that the evidnece of the witnesses as
examined by the bank was insufficient to prove the charge of
misappropriation against the present applicant.
4] It is therefore submitted by the learned counsel
for the applicant that the findings rendered by the learned
Labour Court, as confirmed by the learned Industrial Court
regarding there being no misappropriation by the present
42crrevn56.22.odt
applicant ought to have been considered by the learned Courts
below and had it been so considered, the impugned orders
would not have been passed. He further submits that even
presuming otherwise, since a Court of competent jurisdiction
has rendered a finding based upon the evidence of the same
witnesses, regarding failure of proving the charge of
misappropriation, even if the same was not placed before the
Courts below, it was permissible for this Court to take the
same into consideration in the present revision and decide the
same on its basis.
5] Mr. Doifode, learned APP does not dispute the
proposition that the findings as rendered by the learned
Labour Court, as confirmed by the learned Industrial Court
based upon the same set of facts and the same witnesses,
would be binding upon the Criminal Court. He however
submits that the record does not indicate that this was ever
brought to the notice of the Courts below, which has resulted
in the passing of the impugned judgments, convicting the
applicant. He also does not dispute that it would be
permissible for this Court to take into consideration the
findings rendered by the learned Labour Court, as confirmed
by the learned Industrial Court in the present revision and to
pass appropriate orders by considering them.
6] The basic allegation against the present applicant,
42crrevn56.22.odt
who was serving as a cashier with the Akola District Central
Co-operative Bank, Mangrulpir Branch, is that on 25.7.1995
after completion of the transaction of the bank, on verification
of the cash, there was a shortage of the amount of
Rs. 73,500/-, for which it was claimed that the applicant who
was the cashier was responsible, resulting in an allegation of
misappropriation. In the domestic enquiry conducted in this
regard, three witnesses were examined namely Kashiram, the
Branch Manager as PW-1; Vasant PW-2; Bhimrao, the Senior
Inspector as PW-3 and the finding was rendered by the
Enquiry Officer that there was misappropriation. By an order
dated 4.10.2005, the issue regarding fairness and
proper conduct of the enquiry and the issue whether the
findings of the Enquiry Officer was perverse, were decided as
preliminary issues and it was held that the enqiury was not
fair and proper and the finding of the Enquiry Officer was
perverse.
7] Subsequently, while considering the other issues,
the learned Labour Court in its judgment dated 12.1.2007
after considering the evidence of the aforesaid three witnesses,
has rendered a categorical finding that the evidence of the
aforesaid three witnesses was difficult to be believed and
therefore the allegation regarding misappropriation was not
proved and consequently the termination of the applicant on
this ground was quashed and set aside. In revision, the learned
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Industrial Court has confirmed the findings of the learned
Labour Court in the following manner :
"16. The respondent Bank has complained about the
misappropriation of the amount of Rs.73,500/-
containing total 5,100/- currency note of denomination
of Rs.10/- and total 4,500 currency note of
denomination of Rs.5/-. The respondent Bank has
claimed about the misappropriation of the amount by
the complainant on 25.7.1995 itself and further failed
to produce the positive evidence on record about the
removal of such large number of currency note by the
complainant. On the other hand, the witness as
examined by the respondent has specifically admitted
the cash as tallied prior to the dated 25.7.1995.
Considering the above circumstances as come on
record, the evidence of both these witnesses as
examined by the respondent can not be said to be
sufficient to hold the misappropriation of the amount
by the complainant. It is pertinent to note that the
respondent Bank though has claimed the
misappropriation of such amount of Rs.73,500/-, yet
has failed to produce the evidence about the total
transaction of the dated 25.7.1995.
17. The record shows that the Ld. Labour Court has
thoroughly considered the evidence as produced on
record and rightly concluded that the evidence as
produced on record is not sufficient to prove the
misappropriation of the amount by the complainant
and thus the misconduct on the part of complainant".
42crrevn56.22.odt
It would thus be apparent, that the contention, that there was
a misappropriation committed by the applicant, has been
negatived by the learned Labour Court as well as by the
learned Industrial Court. It is a settled position of law that the
findings and judgments rendered by a Civil Court is binding
upon a Criminal Court and in case of conflicting findings of
Civil and Criminal Courts, the findings recorded by a Civil
Court prevails [See V.M.Shah vrs. State of Maharashtra,
(1995) 5 SCC 767]. This proposition would be equally
applicable to the finding rendered by the learned Labour Court
as confirmed by the learned Industrial Court, for the reason
that the nature of proceedings in both the forums is the same
i.e. of an adversarial nature of determining the
rights/entitlement of the parties to the lis, though in the
Labour Court, the determination is within the four corners of
the rights conferred upon the employees and would be limited
in that sense.
8] In the instant matter, it is not in dispute that the
same witnesses who are examined in the domestic enquiry and
whose evidence has been disbelieved by the learned Labour
Court have also been examined before the learned Magistrate.
Though as contended by Mr. Doifode, learned APP, that the
judgment of the learned Labour Court as well as that of the
learned Industrial Court were not brought to the notice of the
Courts below, that however, would not preclude this Court
42crrevn56.22.odt
from taking into consideration the findings recorded therein,
based upon the evidence of the same witnesses and the same
set of facts, for the purpose of determination of the present
revision. The issue is no longer res integra, but is covered by
the judgment of the Hon'ble Apex court in the case of
P.S.Rajya vrs. State of Bihar, (1996) 9 SCC 1 and V.M.Shah
vrs. State of Maharashtra and another, (1995) 5 SCC 767, in
which the criminal trial based upon the same set of facts upon
which the Departmental Enquiry had exonerated the
employee, was not permitted to be continued. Since based
upon the same set of facts and the same witnesses, as has been
considered by the learned Labour Court as well as the
Industrial Court, a finding has been rendered that there was
no misappropriation, in my considered opinion, the impugned
judgments which are based upon same set of facts and same
witnesses, which hold otherwise, in ignorance of the findings
and judgments rendered by the learned Labour Court as well
as the Industrial Court, cannot be sustained and for this reason
alone, they are quashed and set aside.
9] In the result, the application is allowed. The
judgment dated 1/2/2010 passed by the learned J.M.F.C.
Court No.2 Mangrulpir in Regular Criminal Case No.42/2005
convicting the applicant for the offence under section 408 of
IPC as well as the judgment in Criminal Appeal No.103/2013
dated 22/2/2022 rendered by the learned Sessions Court,
42crrevn56.22.odt
Mangrulpir are hereby quashed and set aside and the
applicant stands acquitted of the offence under Section 408 of
IPC. No costs.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:20.04.2022 16:35
