Chattisgarh High Court

Manrakhan Lal Nag vs State Of Chhattisgarh on 17 June, 2022

                                   1



                                                             NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                 Criminal Revision No.401/2008

     Manrakhan Lal Nag S/o Shri Sabal Singh Nag, Aged about 32
     years, R/o Nira Chindli, P.S. Keshkal, Distt. Bastar, Presently
     residing at Block Colony, Kuakonda, Dantewada (C.G.)
                                                        ---- Applicant
                               Versus
     State of Chhattisgarh, Through : District Magistrate, South
     Bastar Dantewada (C.G.)                     ---- Respondent


      For Applicant            : Shri P.R. Patankar, Advocate
      For State/Respondent     : Shri Ashish Tiwari, G.A and Mr. Kapil
                                 Maini,PL.



                 Hon'ble Shri Sachin Singh Rajput, J

                         Judgment On Board
                             17.06.2022

Sachin Singh Rajput, J.

Assailing the legality, validity, correctness and judicial

propriety of the judgment dated 27.05.2008 passed by

Additional Session Judge, South Bastar Dantewada (C.G.) {for

short ASJ} in Criminal Appeal No. 11/2005 by which the ASJ has

upheld the judgment of conviction dated 14.06.2005 passed by

Judicial Magistrate First Class, Dantewada (C.G.) {for short JMFC}

sentencing applicant for 1 year imprisonment with fne of

Rs.200/- in default 1 month imprisonment, the applicant has

preferred this revision under section 397 read with section 401

of Criminal Procedure Code, 1973 {for short Cr.P.C}.

2) Prosecution case in brief is that applicant was posted as

clerk in additional charge at C.S.I.D.S. ofce, Katekalyan during

the period from 11.10.1996 to 16/06/1997. The applicant used to

do the job of maintaining the cash book by disbursement and

withdrawal. Applicant was entrusted with a job to deposit the

remaining cash amount to Katekalyan Khestriya Garmin Bank

after disbursement of amount under various heads. The

applicant has embezzled to the tune of Rs.98.763/- of bills as

mentioned in First Information Report (ExP-12). The report of the

incident was lodged in police station Katekalyan. After due

investigation charge sheet was fled. The prosecution examined

as many as 14 witnesses in support of their case. Statement of

applicant under section 313 Cr.P.C. was recorded in which he

has stated that he has been falsely implicated and he is

innocent.

3) The learned JMFC after appreciation of oral and

documentary evidence brought before it convicted the applicant

under section 409 of IPC and sentence him to undergo 1 year

imprisonment and Rs.200/- fne and in default of payment of fne

1 month imprisonment. Being aggrieved by the judgment of

conviction and award of sentence, the applicant preferred an

appeal under section 374 of Cr.P.C. before the leaned Session

Judge, Dantewada District South Bastar, Dantewada (C.G.). The

appeal was heard by the learned ASJ and after due consideration

the same was dismissed and the conviction and sentence

awarded to the applicant was maintained/upheld.

4) I have heard the learned counsel appearing for the

applicant and the non-applicant/state. Shri P.R. Patankar leaned

counsel for the applicant did not attack the impugned judgment

on merits however he restricted his submission to reduce the

sentence awarded to applicant to sentence already

served/undergone by him. He submitted that the ofence was

committed in the year 1996-97, the applicant faced trial since

1998 and the revision remained pending since 2008 therefore

after a lapse of about 24 years the applicant may not be sent

back to prison. He further submitted that the applicant has

deposited the embezzled amount and he has already

served/undergone about a month of sentence awarded to him.

Shri Patankar placed reliance on judgments reported in case of

(S. Sundara Kumar Vs. State AIR 2021 Supreme Court

436), (Anil Kumar Vs. State of Haryana 2012 AIR SCW

764), (Budheshwar Vs. State of C.G. 2018 (3) C.G.L.J.

201), (Basant Kumar Vs. State of M.P. (Now C.G.) 2009

(4) C.G.L.J. 496), (Ghasiram @ Bulthu Vs. State of C.G.

2016 (1) C.G.L.J. 159), (Dhanesh Kumar Sahu Vs. State of

C.G. 2006 (3) C.G.L.J. 137). Placing reliance on the above

judgments, Shri Patankar submits that ends of justice would be

served if the sentence awarded to the applicant is reduced to

sentence already served/undergone by him by enhancing the

fne amount. On the other hands Shri Ashish Tiwari learned

counsel for the state submitted that both the courts below have

found the applicant guilty under section 409 of IPC. The

applicant has embezzled Rs.98.763/- of government money.

Both the courts below were justifed in convicting him and

awarding sentence after due appreciation of evidence, therefore

no leniency may be shown towards the applicant and the

revision deserves to be dismissed.

5) I have heard the learned counsel for the parties and

perused the judgments passed by the courts below and oral and

documentary evidence with utmost circumspection. It is true

that learned counsel for the applicant has not assailed the

impugned judgments on merits however after going though the

evidence on record it is apparent that the non-applicant/state

was able to bring home the guilt of the applicant. The fnding

arrived at by the learned JMFC and the learned ASJ is based on

proper evidence on record and it does not require any

interference hence it is afrmed.

6) Now I shall consider the submission of the learned counsel

for the applicant with regard to reducing the sentence to already

served/undergone by the applicant. I have meticulously

examined the above stated citations relied upon by the learned

counsel for the applicant. In case of S. Sundara Kumar (Supra)

the Hon'ble Supreme Court in paragraph 6 observed as under:-

"6. Having heard learned counsel for the parties and in the facts and circumstances of the case and considering the fact that out of two years sentence imposed by the learned Special Court, confirmed by the High Court, the appellant has already undergone approximately one year and one-month and considering the fact that the appellant is a senior citizen aged about 70 years and that he is already dismissed from service, we are of the opinion that the ends of justice would be met if the sentence of two years rigorous imprisonment as imposed by the learned Special Court, confirmed by the High Court, is reduced to that of one year and one- month rigorous imprisonment."

Similarly in case of Anil Kumar (Supra) the Hon'ble Supreme Court in paragraph 4, & 5 observed as under:-

"4. Pursuant to the orders of this court dated 15th July 2011, the appellant has deposited a sum of Rs. 1 lakh. The appellant was initially convicted by the trial court for an offence punishable under section 7 of the Essential Commodities Act and was awarded a sentence of two

years' rigorous imprisonment and payment of fine of Rs.2,000/-. The said sentence as been reduced by the High Court from two years to three months but enhanced the fine to Rs.10,000/- from Rs.2,000/-. As of today, the appellant has undergone one month of sentence.

5. We, accordingly, reduce the sentence of the appellant to that already undergone enhancing his fine from Rs.10,000/- to Rs. 1 lakh."

This court in the case of Budheshwar (Supra) in paragraph 18 observed as under:-

18. It is true that the incident had occurred about 24 years back. At that point of time, the appellant was aged about 45 years, therefore his present age would be about 70 years. At this stage, sending the applicant to jail once again after 24 years may not be appropriate. Therefore, since the applicant has already suffered 4 months of jail sentence, ends of justice would be served if the sentence awarded for offence under section 324 of IPC is reduced to the period already undergone."

7) That in light of the submissions of the learned counsel for

the applicant and non-applicant/state and above case law cited

by the learned counsel for the applicant, I shall examined

whether the applicant has made out a case of reduction of

sentence to already served/undergone or not. From perusal of

records and submission by the counsel for the parties following

facts emerges:-

A) The ofence was committed in the years 1996-97.

B) The applicant faced prosecution from the year 1998.

C) The applicant has already served/undergone about one month of the sentence imposed upon him.

D) The applicant was aged about 32 years of age at the time of his prosecution and at present his age would be about 56 years.

E) As per submission of learned counsel for the applicant the embezzled amount has already been deposited by the applicant.

F) About 24 years have passed since the prosecution of the applicant in the year 1998.

8) The Hon'ble Supreme Court in case of Kassim Pillai Abdul

Vs. State of Kerala reported in (1978) 4 SCC 481 observed

as under:-

"In, this appeal by special leave the appellant has been convicted under section 409, I.P.C. and sentenced to two years R.I. and a fine of Rs.500, in default simple imprisonment of two months. The Sessions Judge on appeal upheld the conviction but reduced the sentence to six months R.I. the accused has pressed this appeal only on the question of sentence. In view of the conclusion, made by the Counsel for the appellant, we are not call upon to examine the legal question arising in the case as to the applicability of Section 197 of the Code of Criminal Procedure to the facts of this case. It is submitted that having regard to the peculiar circumstances of this case, the inexperience of appellant, and further having regard to the fact that he also deposited the money as ordered by the Collector a lenient view may be taken, We are of the opinion that contention is well founded and must prevail.

2. Having regard to the special circumstances of the case, we do not see any reason to send the appellant back to jail. We, therefore, allow this appeal to the extent that while upholding the conviction of the appellant we reduce the sentence to the period already undergone maintaining the fine as also the sentence in default of payment thereof."

In another case involving punishment under section 409 of IPC,

the Hon'ble Supreme Court in case of Bachchu Singh Vs. State of

Haryana reported in (1999) 9 SCC 81 observed in paragraph 5 as

under:-

"5. However, on the question of punishment, the appellant was awarded a sentence of six months rigorous imprisonment and a fine of Rs.1000 by the learned Magistrate. The imprisonment part was reduced to the rising of the court by the appellate court in the first instance. For the reasons best known to him, he challenged that order of the appellate court and got the case remanded to the appellate court. After remand the sentence awarded by the learned Magistrate was restored. We are told, he had already undergone four and half months' rigorous imprisonment. Having regards to the facts and circumstances of the case, in our view, interest of justice would be met by reducing the sentence to the period already undergone without disturbing the fine of Rs.1000 and we modify the sentence accordingly. The appeal thus disposed of."

9) That in light of the above authoritative pronouncement,

submissions of the learned counsel of the parties, facts and

circumstances of the case and particularly considering the

submission of the appellant that embezzled amount had been

deposited by applicant and nothing contrary to this brought to

the notice of the court, applicant faced prosecution for about 24

years, applicant has already served/undergone about one month

of sentence imposed upon him, this court is of the opinion that

sending applicant back to prison may not appropriate.

Therefore, looking to the peculiar circumstances of the case,

ends of justice would be served if the sentence awarded to the

applicant for ofence under section 409 of IPC is reduced to