R.Murugesan vs The State Represented By
2021 Latest Caselaw 25279 Mad

                                                                                Crl.R.C.No.532 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.532 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.162 of
                     2011 respectively, confirming the judgment dated 20.07.2011 passed by the
                     learned Judicial Magistrate II, Vellore made in C.C.No.15 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.532 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.162 of 2011 dated 16.02.2017, confirming the

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

C.C.No.15 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.532 of 2017

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

Co-operative Societies Act 1983, and nominated PW12-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. PW12 conducted enquiry and submitted Ex.P38

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, PW13,

Inspector of Police(CCIW) registered a case in Ex.P39 (FIR) and PW14,

another Inspector of Police conducted the investigation and recorded the

statement of witnesses, including PWs.2 to 11 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.532 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, 14

witnesses have been examined as PW1 to PW14 and 39 documents were

marked as Exhibits P1 to P39. PW2 to PW11 deposed that they are not

members of the society, but the petitioner has made false entries as though

they have been admitted as member and also created false records as if

boiled ponni rice of 1500 kg for Rs.18,864/- and purchased rice from

Jayakumar for Rs.21,379/- and purchased rice from Kumar for Rs.15,091.20

and purchased rice from Rajendran for Rs.12,576/- and purchased rice from

Kuppan for Rs.20,121.60 and purchased rice from Subramani for

Rs.18,864/- and purchased rice from Ayyothi for Rs.18,864/- and not

credited Rs.12,1270.20 paid by member Srinivasan and amount of

Rs.7,816/- paid by member Gunasekaran and Rs.8,521/- paid by Bharathi in

the Day Book and when the member Vadivel paid Rs.7,476.50p, partly

credited Rs.3,470.50p and misappropriated the society amount. When the

accused was questioned under Section 313 Cr.P.C., with regard to the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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.

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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.

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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

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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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 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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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/-

(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

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

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, CCIW CID, Tiruvannamalai.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.532 of 2017

R.N.MANJULA, J.,

ssn

Crl.R.C.No.532 of 2017

23.12.2021

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