R.Murugesan vs The State Represented By
2021 Latest Caselaw 25276 Mad

                                                                                Crl.R.C.No.530 of 2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 23.12.2021

                                                      CORAM

                                  THE HONOURABLE Ms.JUSTICE R.N.MANJULA

                                               Crl.R.C.No.530 of 2017

                     R.Murugesan                                        ... Petitioner

                                                         Vs

                     The State represented by
                     Inspector of Police,
                     CCIW CID, Tiruvannamalai.                          ... Respondent

                     PRAYER: This Criminal Revision Case is filed under Section 397 r/w.401
                     Cr.P.C., praying to set aside the judgment dated 16.02.2017 passed by the I
                     Additional District and Sessions Court, Vellore made in C.A.No.163 of 2011
                     respectively, confirming the judgment dated 20.07.2011 passed by the
                     learned Judicial Magistrate II, Vellore made in C.C.No.23 of 2007
                     respectively, wherein, the petitioner was convicted and sentenced to undergo
                     one year Rigorous Imprisonment and pay a fine of Rs.1,000/-, and in default
                     to undergo Simple Imprisonment for one month for each of the offence under
                     Sections 408 and 477(A) of IPC and further ordered that both the sentences
                     shall run concurrently.



                     1/13



https://www.mhc.tn.gov.in/judis
                                                                                       Crl.R.C.No.530 of 2017



                                        For Petitioner     :      Mr.S.Venkataraman
                                        For Respondent     :      Mr.A.Gopinath
                                                                  Government Advocate (Crl.Side)

                                                            ORDER

This Criminal Revision Case has been filed by the petitioner/accused

challenging the judgment passed by the learned I Additional District and

Sessions Judge, in Crl.A.No.163 of 2011 dated 16.02.2017, confirming the

Judgment passed by the learned Judicial Magistrate-II, Vellore, in C.C.No.23

of 2007 dated 20.07.2011, wherein, the petitioner was convicted and

sentenced to undergo one year Rigorous Imprisonment and imposed to pay a

fine of Rs.1,000/-, and in default to undergo Simple Imprisonment for one

month for each of the offences under Sections 408 and 477-A IPC and both

the sentences were ordered to run concurrently.

2. The case of the prosecution is that the petitioner was appointed as

Secretary in Chengam Agricultural Producers Co-operative Marketing

Society and functioned as the Secretary from 01.04.2001 to 30.01.2004.

PW1-Mr.Pandurangan, Deputy Registrar of Co-operative Societies,

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

Tiruvannamalai, had passed an order under Section 81 of the Tamil Nadu Co-

operative Societies Act 1983, and nominated PW6-Mr.Banu, to conduct

enquiry relating in connection with certain irregularities in the Chengam

Agricultural Products and Marketing Co-operative Society vide Ex.P1

proceedings dated 01.03.2004 and the enquiry period was extended through

Ex.P2 proceedings. PW6 conducted enquiry and submitted Ex.P43 report to

the Deputy Registrar. PW1 perused the report and preferred EX.P3 complaint

to S.P.CCIW Wing, Chennai. Then it was assigned to D.S.P.CCIW Wing,

Villupuram and then forwarded to CCIW Wing of Tiruvannamalai for

investigation. On receiving the complaint, PW7, Inspector of Police(CCIW)

registered a case in Ex.P44 (FIR) and PW8, another Inspector of Police

conducted the investigation and recorded the statement of witnesses,

including PWs.2 to 5 and seized the records from the Society and filed the

charge sheet against this petitioner and two others for the offences under

Sections 408 and 477(A) IPC.

3. After the case was taken on file and complying with all the legal

mandates, the petitioner/accused was questioned. Since the petitioner/accused

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

pleaded innocence and claimed to be tries, the trial was conducted.

4. During the course of trial, on the side of the prosecution, 8 witnesses

have been examined as PW1 to PW8 and 44 documents were marked as

Exhibits P1 to P44. PW2 and PW5 deposed that they have availed loan by

pledging their paddy and they have repaid the loan amount and released the

paddy bags to them. The appellant entered the loan repayment in loan ledger,

but not entered in the Day Book and this petitioner has misappropriated the

society amount, and when the 2nd accused not being the member of the

society, the petitioner/1st accused entered in admission register as if the 2nd

accused was member and fabricated the records as if rice were purchased

from him on 30.12.2002 for Rs.12,262.50p, on 15.02.2002 for Rs.30,750/-,

on 19.02.2002 for Rs.60,325/- on 14.05.2002 for Rs.55,000/- and on

18.05.2002 for Rs.80,000/- and issued cheque in favour of 2nd accused and

encashed them through current account and this petitioner misappropriated

society fund along with 2nd accused, and without purchasing rice from

Asimkhan, created record as if rice purchased for Rs.1,34,500/- and send it to

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

Salem and created false lorry bill for RS.2,500/- and misappropriated

RS.1,34,500/- and from 10.04.2001 to 29.03.2002 this petitioner made false

amount entry in credit and debit accounts and misappropriated a sum of

Rs.2783.35 p. When the accused was questioned under Section 313 Cr.P.C.,

with regard to the incriminating materials available in the evidence, he denied

the same. On the side of the defence, no witness was examined and no

documents were marked.

5. After conclusion of the trial and considering the materials available

on record, the trial Court has found the accused guilty of the offence under

Sections 408 and 477-A of IPC and convicted and sentenced as follows:

Rank Offence under Punishment imposed on the accused Sections A1 408 IPC To undergo One Year Rigorous Imprisonment and to pay a fine of RS.1000/-. In default to undergo Simple Imprisonment for one month.

A1 477-A IPC To undergo One Year Rigorous Imprisonment and to pay a fine of RS.1000/-. In default to undergo Simple Imprisonment for one month.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

6. Aggrieved by the same, the accused had preferred an appeal before

the learned I Additional District and Sessions Judge, Vellore in Crl.A.No.163

of 2011, dated 16.02.2017 and the said appeal was dismissed by confirming

the judgment passed by the learned trial Judge. Aggrieved by that, the

accused has preferred this Revision Case before this Court.

7. Heard the learned counsel for the petitioner and the learned

Government Advocate(Crl.Side) appearing for the respondent and perused

the materials available on record.

8. During the course of arguments, it is fairly conceded by the learned

counsel for the petitioner that the only indulgence he expects from the Court

is to show leniency in the matter of punishment. Considering the fact that the

petitioner has paid the entire sum of Rs.21,32,833/- which is found to be the

total misappropriated sum in all the four cases along with interest. In fact, the

total misappropriated sum in all four cases is Rs.8,82,557.15 without interest.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

9. During recovery proceedings of the misappropriated money, the

property belonging to the wife of the petitioner/accused had been attached

and brought to auction proceeding by the Registrar of Co-operative Societies.

Mrs.Chandra Bai, wife of the accused had paid whole of the misappropriated

money along with interest before the auction was conducted and released the

attachment. The proceedings to that effect has been passed by the Sub-

Registrar of Co-operative Societies on 22.02.2020 and the same has been

produced before this Court for perusal.

10. The genuineness of the said proceedings is not disputed by the

prosecution. The accused has been convicted and sentenced to undergo one

year Rigorous Imprisonment and was also imposed with a fine of Rs.1000/-.

It has been ordered to undergo sentences for the offences under Sections 408

and 477-A IPC concurrently. The fine amount has already been paid.

11. It is submitted by the learned counsel for the petitioner that the

accused is the first offender and he had no criminal antecedents. He has

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further submitted that he is now 74 years old and he is facing the criminal

proceedings for nearly 16 years and hence, his case may be considered

sympathetically. He also drew the attention of this Court to similar such

cases, where the Court has considered the similar circumstances, and given

the benefit of Probation of Offenders Act. He also cited the following

decisions of this Court.

1. Varadhan vs. State, by Inspector of Police, CCIW CID,

[Crl.R.C.Nos.163 to 177 of 2016] etc., batch dated 06.09.2017.

2.Ponnuswamy vs. Inspector of Police, CCIW, [Crl.R.C.No.231 of

2001] dated 28.06.2006.

3.V.G.Rajendran vs. State, by Inspector of Police, CCIW CID,

[Crl.R.C.No.1396 of 2017] dated 01.07.2015.

4. Shanmugam vs. 1. The Inspector of Police, CCB, 2. K.Arulmani

[Crl.O.P.No.13374 of 2021] dated 30.07.2021.

5. T.Tamilselvan vs. State, Inspector of Police, CCIW, dated

11.02.2008.

6.Varadhan vs. State, Inspector of Police, CCIW[Crl.R.C.No.499 of

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2008] dated 28.03.2018.

12. It is seen from the above cases, similar such circumstances were

taken up for consideration and this Court has considered the nature of the

offence, in the light of the family circumstances of the accused and the length

of the period for which the accused had undergone mental and physical stress

and economical issues due to loss of employment. The petitioner had no

previous adverse remarks in his career. In order to get the benefits under

Section 4(1) of Probation of Offenders Act, the accused must be directed to

make good the loss caused to the institution, in accordance with Section 5(1)

(A) of the Probation of Offenders Act, 1958.

13. In this case, loss caused to the Society has been compensated by

way of repaying the amount along with interest. The accused is 74 years old

and his family members themselves have deserted him, because of this

criminal case. The circumstances of the petitioner show that he had suffered

more than the punishment. But, the learned Government Advocate submitted

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that the offence under Section 477-A IPC is not compoundable and hence the

payment of loss will not absolve the criminal liability of the accused.

14. Since the accused had made good the loss caused to the Society by

paying the misappropriated sum along with interest, I feel that this case

should be considered sympathetically. Further, the petitioner is the first

offender and there is no previous case pending against him. The accused is

74 years old now and by this time, he would have realised his mistake. The

accused is not involved in any other case after this case. Considering all these

factors and in the interest of justice, I feel that the accused can be given with

the benefits under Section 4(1) of the Probation of Offenders Act.

15. Accordingly, this Criminal Revision Case is partly allowed and this

Court would confirm the findings of conviction and sentence of the Courts

below, but invoke provision 4 of the Probation of Offenders Act.

Consequently, this Court directs the revision petitioner be released on

probation of good conduct, on his executing a bond for a sum of Rs.10,000/-

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

(Rupees Ten Thousand Only) with two sureties in a like sum to the

satisfaction of the trial Court, viz., the learned Judicial Magistrate II, Vellore,

within one month from the date of receipt of this order, undertaking to appear

and receive sentence when called upon to do so, during a period of two years

of the date of the bond and in the mean time to keep peace and good

behaviour. It is made clear that in keeping with Section 12 of the Probation of

Offenders Act, the revision petitioner shall not suffer disqualification,

attaching to this conviction.

23.12.2021

Index: Yes / No Speaking Order : Yes / No ssn

To

1. The I Additional District and Sessions Court, Vellore.

2. The Judicial Magistrate II, Vellore.

3. The Inspector of Police,

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

CCIW CID, Tiruvannamalai.

R.N.MANJULA, J.,

ssn

Crl.R.C.No.530 of 2017

https://www.mhc.tn.gov.in/judis Crl.R.C.No.530 of 2017

23.12.2021

https://www.mhc.tn.gov.in/judis