Bombay High Court

Ravindra Dnyanoba Salunke vs The State Of Mah on 22 October, 2024

2024:BHC-AUG:25893
                                                 1            Cri.Rev.Appln.203-2007.odt


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                          CRIMINAL REVISION APPLICATION NO.203 OF 2007

                     Ravindra s/o Dnyanoba Salunke,
                     Age 33 years, Occu. Nil,
                     R/o Jawahar Colony, Tuljapur,
                     Tq. Tuljapur, Dist. Osmanabad.            ... Applicant.

                           Versus

                     The State of Maharashtra.                 ... Respondent.

                                                 ...
                           Advocate for Applicant : Ms. Sheetal V. Salunke.
                           APP for Respondent-State : Mr. G. O. Wattamwar.
                                                 ...

                                             CORAM :     S. G. MEHARE, J.

                                             RESERVED ON   : 30.09.2024
                                             PRONOUNCED ON : 22.10.2024

                     JUDGMENT :

1. Heard the learned counsel for the applicant and learned

APP for the respondent-State.

2. The applicant has preferred the revision against the

judgments and orders of the learned Chief Judicial Magistrate,

Osmanabad passed in RCC.No.450 of 1996, dated 18.02.2002

and the judgment and order of the learned Additional Sessions

Judge, Osmanabad passed in Appeal No.5 of 2002, dated

21.08.2007.

2 Cri.Rev.Appln.203-2007.odt

3. The applicant was convicted for the offence punishable

under Section 409 of the IPC. The Trial Court sentencing to

suffer R.I. for seven (7) years and the fine of Rs.15,000/- and

in default to undergo R.I. for one year. However, the learned

First Appellate Court allowed the appeal partly and reduced

the sentence to three years. Against those orders, the applicant

is before this Court.

4. The learned counsel for the applicant has vehemently

argued that the prosecution did not prove the bank entry of

payment of Rs.75,000/- (Rupees Seventy five Thousand) and

did not produce the deposit receipt Rs.16,685/- (Rupees

Sixteen Thousand Six Hundred Eighty five) with the Bank

deliberately.

5. The prosecution case in brief was that the applicant was

undisputedly the Postman. He has the duty to withdraw and

deposit the money from the post office on the directions of the

Post Master. On 13.09.1996, the complainant directed him to

withdraw Rs.75,000/- (Rupees Seventy Five Thousand) from

the State Bank of Hyderabad. For withdrawal, the voucher

was given to him. The cash of Rs.16,685/- (Rupees Sixteen

Thousand Six Hundred Eighty five) was entrusted to him for

depositing in the bank. Rs.800/- (Rupees Eight hundred) were 3 Cri.Rev.Appln.203-2007.odt

handed over to him for paying the money orders to the

recipients. Twenty five (25) letters were also handed over to

him for distribution to the addressee. Since he did not return

with the cash of Rs.75,000/- (Rupees Seventy five Thousand)

and vouchers for depositing the money and paying the money

orders, the inquiry was made and lastly, the report was lodged.

He had siphoned the Government money. The prosecution has

collected the evidence related to the alleged offence and

proved it. The applicant/accused had a defence that on the day

of the incident, he was kidnapped by some unknown persons.

He did not use money for his own. He was not responsible for

the alleged offence. However, his defence was discarded.

6. Learned counsel for the applicant has vehemently

argued that both the Courts did not consider the facts that the

vouchers on the basis of which Rs.75,000/- (Rupees Seventy

Five Thousand) were already paid to him by the witness

Sudhir Deshpande were not produced on record. Both Courts

unnecessarily shifted the burden on the applicant to explain

the recovery of Rs.54,000/- (Rupees Fifty Four Thousand) from

his house. Both Courts erred in law relying on the estimates of

the goldsmith as proof of gold purchase. The vouchers of the

Bank of Hyderabad and bank entries of payment of the 4 Cri.Rev.Appln.203-2007.odt

amounts were also not produced. He had applied to produce

the bank vouchers and called the witnesses from the

Accountant General Office. It was allowed but witnesses did

not appear. Therefore, his right to prove the defence has been

affected. She would argue that the offence alleged offence

against the applicant was not proved beyond reasonable doubt.

Hence, criminal revision may be allowed.

7. Per contra, learned APP for the respondent/State

supporting the impugned judgments and orders vehemently

argued that immediately after the incident, the applicant had

purchased the golden ornaments, undergarments, shoes etc. A

huge amount of Rs.54,080/- (Rupees Fifty Four Thousand

eighty) was also seized from his home which he did not

explain. It corroborates the allegations levelled against him. He

also argued that both Courts discarded the imaginary and

concocted defence that on the day of the incident, he was

kidnapped. The prosecution has proved the case beyond

reasonable doubt by producing irrelevant documents. The post

incident conduct of the applicant was correctly appreciated. He

had no defence that he never withdrew the amount from the

bank.

5 Cri.Rev.Appln.203-2007.odt

8. Perused both judgments and orders. It appears that both

Courts have elaborately discussed the material placed on

record. The opportunity was granted to the accused to rebut

the evidence. He also examined bank authorities. The

prosecution has established beyond reasonable doubt that the

applicant was a public servant. He was in a capacity to entrust

with the money and he dishonestly misappropriated the money

of the Government. The prosecution had proved the facts that

he was entrusted with the withdrawal voucher and the cash as

mentioned in the complaint. The post incident conduct of the

applicant was also established. The estimate for purchasing the

gold and hard cash of Rs.54,080/- (Rupees Fifty Four

Thousand eighty) was also recovered from his house. Both

Courts have appreciated the evidence correctly. There appear

no prima facie illegalities in appreciating the evidence and

holding the accused guilty.

9. The arguments as regards non-granting opportunity to

call the witness from A. G. appear to have no weightage for the

reason that the applicant had proceeded with the matter. The

Court assisted him in securing the presence of the witnesses,

but he did not act upon and produce the witnesses. Besides,

the documents placed on record and not impeaching the 6 Cri.Rev.Appln.203-2007.odt

prosecution evidence were sufficient to hold him guilty. The

documents produced on record were sufficient to establish the

nexus of the applicant with the crime. It is a general practice

in India to purchase the gold on the receipt having

nomenclature as "estimate". Since the huge amount of

Rs.75,000/- (Rupees Seventy-five Thousand) was withdrawn

and another amount of Rs.16,685/- (Rupees Sixteen Thousand

and Six Hundred Eighty-five) and Rs.800/- (Rupees Eight

Hundred) was handed over to the applicant, he did not

discharge his duties and misappropriated it for his own. The

subsequent conduct of the applicant purchasing gold, clothes

and shoes was correctly appreciated as the circumstance to

prove the charges against the applicant. It was established

against the applicant that the voucher for Rs.75,000/- (Rupees

Seventy -five Thousand) and cash of Rs.16,685/- (Rupees

Sixteen Thousand Six Hundred Eighty -five) and Rs.800/-

(Rupees Eight Hundred) was entrusted to him for depositing it

in the bank and paying the money orders to the recipients have

been established beyond a reasonable doubt. Not only this, his

handwriting was also proven. In the circumstances, there

appears no substance in the argument of the learned counsel

for the applicant that the bank vouchers and bank entries of

the payment were not proved, is unfounded. At the cost of 7 Cri.Rev.Appln.203-2007.odt

repetition, it is held that after having gone through the

impugned judgments and orders, there appears no error on the

face of the record. Therefore, the revision application is

devoid of merit. Since the offence under Section 409 is a

moral turpitude, the accused cannot be granted the benefit of

the Probation of Offenders Act. However, the applicant has

been facing trial since 1996, so he may be at an advanced age.

So, again a liberal view will taken to reduce his sentence,

which may be proportionate to the crime. Hence, the

following order:

ORDER

(i) Criminal Revision Application is partly allowed.

(ii) Both judgments and orders impugned before the

Court sentencing the applicant to suffer R.I. and

the fine of Rs.15,000/- are maintained. However,

the sentence to suffer R.I. for three years is

reduced to eighteen months.