R.Murugesan vs The State Represented By
2021 Latest Caselaw 25277 Mad

                                                                                Crl.R.C.No.531 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.531 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.164 of
                     2011 respectively, confirming the judgment dated 20.07.2011 passed by the
                     learned Judicial Magistrate II, Vellore made in C.C.No.38 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.




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https://www.mhc.tn.gov.in/judis
                                                                                      Crl.R.C.No.531 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.164 of 2011 dated 16.02.2017, confirming the

Judgment passed by the learned Judicial Magistrate-II, Vellore, in

C.C.No.38 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.531 of 2017

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

Co-operative Societies Act 1983, and nominated PW7-Mr.Banu, to conduct

enquiry relating in connection with certain irregularities in the Chengam

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

proceeding dated 01.03.2004 and the enquiry period was extended through

Ex.P2 proceedings. PW7 conducted enquiry and submitted Ex.P40 report to

the Deputy Registrar. PW1 perused the report and preferred a 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, PW8, Inspector of Police(CCIW)

registered a case in Ex.P41 (FIR) and PW9, another Inspector of Police

conducted the investigation and recorded the statement of witnesses,

including PWs.2 to 6 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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

petitioner/accused 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 PW9 and 41 documents were

marked as Exhibits P1 to P41. PW2 and PW5 deposed that they have not

supplied any rice to the Society and received amount from the Society. PW3

and PW4 are not the members of society and deposed they have not

supplied rice to the society and received amount. PW6 deposed that he

availed Rs.12,000/- and additional amount of Rs.2,000/- only on mortgaging

the paddy and not received excess amount of Rs.13,000/- as entered in

register. PW7 deposed that this petitioner has made false entries as if PW2

to PW5 have supplied rice to the society and received amount and also made

false entries in opening balance and closing balance of account and made

false entries stating Pongal gift pockets were supplied to Anaimangalam and

Kulapadi stores and thus misappropriated society fund. 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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

defence, one witness was examined as DW1 and one document was marked

as Ex.D1.

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 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 pay a fine of RS.1000/-. In default to undergo Simple Imprisonment for one month.

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.164 of 2011, dated 16.02.2017 and the said appeal was dismissed

by confirming the judgment passed by the learned trial Judge. Aggrieved by

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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.

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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 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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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/-

(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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

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, CCIW CID, Tiruvannamalai.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.531 of 2017

R.N.MANJULA, J.,

ssn

Crl.R.C.No.531 of 2017

23.12.2021

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