Madhya Pradesh High Court
Yeshwant Dharmik vs The State Of Madhya Pradesh on 7 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 5762 of 2023
BETWEEN:-
YESHWANT DHARMIK S/O DONGURU DHARMIK, AGED
ABOUT 51 YEARS, OCCUPATION: SERVICE 144, SHYAM
NAGAR, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI AS. RATHORE, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION M.I.G. DISTRICT
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R. JOSHI, GA FOR STATE )
Reserved on :10.04.2024
Pronounced on : 07.05.2024
This criminal appeal having been heard and reserved for judgments,
coming on for pronouncement this day, the court passed the following:
JUDGMENT
With consent of the parties heard finally.
1. This criminal appeal has been filed under Section 374 of Cr.P.C. by
the appellant being aggrieved by the judgment dated 18.04.2023, passed by the
learned 20th Additional Sessions Judge, Indore in ST No.700747/2013,
whereby the appellant has been convicted for offence under Sections 409, 420,
467, 468, 471 of IPC and sentenced to 08 years, 07 years, 08 years, 07 years
and 07 years with fine of Rs.1000/- for each offence respectively with default
stipulations.
2.According to prosecution story, a written complaint was filed by
complainant Kailash Chand Madrosiya, Senior Manager, LiC Branch No.4,
Indore against the present appellant alleging that the appellant being the
employee of LIC mis-utilized the cheques pertaining to LICs income and
expense account by over writing on the said cheuqes and deposited the said
cheques in his UTI Saving Bank Account, the factum was came to knowledge
when the cheques were encashed by the appellant in his account in lace of
LIC's account. The appellant has misappropriated the fund of Rs.1500000/-
Hence, the complaint was lodged against the appellant. After following the due
procedure of law, the police investigated the matter and and filed the charge-
sheet was filed against the appellant/accused under Sections 409, 420, 467, 468,
471 of IPC, 1860 against the appellant.
03. The appellant was tried and charged under Sections 409, 420, 467,
468, 471 of IPC, 1860. He abjured his guilt and took a plea that he had been
falsely implicated in the present crime and prayed for trial.
04. In support of the case, the prosecution has examined as many as 06
witnesses namely Kailash Chandra Madrosiya (PW-1) Giriraj Gupta (PW-2),
Surendra Meena (PW-3), Ray Singh Chouhan (PW-4), Sanjay Pathak (PW-5),
Ramkishore Dube (PW-6). No witness has been adduced by the appellant in
his defence.
5 . Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 18.04.2023 and
finally concluded the case and convicted the appellant for commission of
offence as mentioned above in para No. 1 of this judgment.
6. The appellant has preferred this criminal appeal on several grounds but
during the course of arguments, learned counsel for the appellant did not press
this appeal on merits and has not assailed the finding part of judgment. He
confines his argument on the point of sentence only and prays that since the
appellant has already undergone 01 years and 04 months in jail incarceration,
his sentence be reduced to the period already undergone. It is further submitted
that this appeal be partly allowed and the sentence awarded to the appellant be
reduced to the period already undergone by enhancing the fine amount or as the
Court deems fit.
7. In alternate, learned counsel for the appellant Submits that the learned
trial Court is contrary to law and facts on record and is bad in law and the
learned trial Court has erred in believing the story of the prosecution and has
wrongly convicted the appellant and therefore, the conviction is liable to be se
aside. It is also submitted that prosecution witnesses W-2 and W-3 have turned
hostile and have not supported the case of the prosecution to the effect that
over writing was not done by the appellant. The children of the appellant is
studying and there is no one to look after the children. It is also submitted that
forgery can only be made out against the person who has created the forged
document in light of the law laid down by Hon'ble Apex Court in the case of
Sheila Sebastian vs. R. Jawahar Raj and Anr. [2018 (2) SCC 581]. It is
also submitted the appellant has already been deposited the entire
amount of Rs.1500000/- therefore, he is not liable to be convicted.
Hence, prays for reduction of the sentence to the period already undergone or
as the Court may deem fit in the interest of justice.
0 8 . Learned Public Prosecutor has opposed the prayer. Inviting my
attention towards the conclusive paragraphs of the impugned judgement,
learned public prosecutor has submitted that huge amount has misappropriated
by the appellant and the learned trial Court has rightly convicted the appellant by
sentencing him appropriately. Hence, prays for dismissal of the appeal.
However, he has admitted that the amount of Rs.1500000/- has already been
returned or deposited by the appellant.
9. Having considered the rival submissions and on perusal of the record,
the submissions of the learned counsel for the appellant appears to be just and
proper.
1 0 . However, the learned trial Court has not committed any error in
appreciation of evidence available on record. Further, it is found that the
prosecution case has been well supported by the testimony
of complainant as well as documentary evidence. The learned Court below
has well considered the material available on record, hence, no infirmity is found
in the impugned order of conviction passed by the Court below, accordingly,
the same is upheld.
11. So far as, the sentence of the appellant is concerned, in view of the
submissions made by the counsel for the appellant that the appellant has
completed more than 01 years and 04 months out of eight years of his jail
sentence, the amount so misappropriated of Rs.1500000/- has already been
deposited by the appellant, therefore, in the interest of justice, this Court finds it
expedient to partly allow this appeal by affirming the conviction of the appellant
by reducing the sentence to the extent that the appellant shall undergo for 2
years 06 months R.I. by enhancing fine of Rs.5000/- for each offence.
12.On this aspect, Hon'ble Apex Court in the case of Sambhu Singh vs.
State of Uttar Pradesh [1992 Law Suit (SC) 128, Heeranand vs. State of
Himanchal Pradesh [1995 Law Suit (SC) 221 and this Court in the case of
Jaipal Singh Chandel vs. State of M.P. [ 2006 Law Suit (M.P.) 825 and in
Ramchandra vs. State of M.P. [1994 Law Suit (M.P.) 398] have laid down
the law. In the aforesaid cases, the appellants were convicted under Section 409
of IPC and punishment of most of them has been reduced to 2 to 3 years. In
the case of Ramchandra (supra), the punishment under Section 409 of IPC
has been reduced to 20 months.
13.Accordingly, in view of the aforesaid settled law, this criminal appeal
is partly allowed and the sentence awarded to the appellant is set aside and the
appellant shall undergo the sentence under Sections 409, 420, 467, 68, 471 of
IPC for two years and six months R.I. for each offence with fine of Rs.5000/-
for each offence. In case of failure to deposit the fine amount, the appellant
shall further undergo 01 month S.I. for each offence.
14. T h e appellant shall be released after completing the aforesaid
sentence subject to depositing the fine amount. His bail bonds shall be
discharged accordingly.
15.The order of learned trial court regarding disposal of the seized
property stands confirmed.
1 6 . A copy of this order be sent to the concerned trial Court for
necessary compliance.
Certified copy, as per Rules.
(PREM NARAYAN SINGH)
JUDGE
amit
