Madras High Court
L.Mangalraj vs The State Rep. By on 11 January, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 11.1.2022.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Criminal Revision Case No.40 of 2021
L.Mangalraj Petitioner
vs.
The State rep. by
The Sub Inspector of Police,
District Crime Branch,
Coimbatore.
(Cr.No.9/2007) Respondent
Criminal Revision Case filed under Section 397(1) and 401
Crl.P.C. against the order dated 23.12.2020 passed in Crl.A.No.320 of
2018 on the file of the V Additional District and Sessions Judge,
Coimbatore confirming the judgment and order dated 10.7.2018 in
C.C.No.712 of 2007 on the file of Judicial Magistrate II, Coimbatore.
For Petitioner : Mr.R.Rajarajan
For Respondent : Mr.S.Sugendran,
Government Advocate (Criminal Side)
ORDER
Challenging the judgment rendered by the V Additional District
and Sessions Judge, Coimbatore in Crl.A.No.320 of 2018 confirming
the judgment of conviction and sentence passed by Judicial Magistrate
II, Coimbatore in C.C.No.712 of 2007, the present Criminal Revision
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Case has been filed by the accused.
2. The petitioner/accused stands convicted under Section 408
IPC and sentenced to undergo rigorous imprisonment for one year and
to pay a fine of Rs.2000/- in default to undergo simple imprisonment
for a further period of one month on the allegation that the petitioner,
who was employed as Joint Liability Coordinator of Kathir Foundation,
a Financial Institution and entrusted with the duty and responsibility of
collecting the instalment amounts from the loanees towards the loan
amounts availed by them from the Institution, had collected such
amounts to the tune of Rs.2,06,617/- during the period from
19.5.2006 to 2.8.2006 and from 3.8.2006 and 11.8.2006, however,
failed to deposit the same in the Bank accounts of the Institution and
misappropriated the same.
3. The petitioner/accused was confronted with the charges for
which, he denied and sought to be tried.
4. Brief facts of the case as culled out from the prosecution
witnesses and the other materials available on record are as under:-
(i) On receipt of complaint, Ex.P1, lodged by PW1, the Managing
Director of the financial institution, Kathir Foundation alleging that the
petitioner/accused had misappropriated the amounts collected by him
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from the loanees without depositing the same into the bank, PW11,
Sub Inspector of Police, Crime Branch, Coimbatore City had registered
a case in Crime No.9 of 2007. The FIR is marked as Ex.P19.
(ii) The version of PW1, Founder of Kathir Foundation is that
during the period from 19.5.2006 to 2.8.2006, the petitioner/accused
had collected a sum of Rs.1,96,237/- from the borrowers, however, he
had failed to deposit the same with the bank and therefore, his
services were terminated, but, still, he had continued to collect a sum
of Rs.10,380/- during the period from 3.8.2006 and 11.8.2006 and
failed to remit the same.
(iii) The Regional Manager of the said Institution, as PW2 speaks
about the allegation levelled against the petitioner/accused with regard
to misappropriation of amounts collected from the borrowers, the
complaint lodged by PW1, the Director of the Company and the audit
inspection made by PW3 and the audit report, Ex.P5 issued by PW3.
(iv) P.Ws.4, 6, 8 and 9 are said to have availed loans from the
financial institution and they were projected on the side of the
prosecution to prove that the petitioner/accused had misappropriated
the loan amounts and among them, P.Ws.8 and PW9 had turned
hostile.
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(v) PW5, Branch Manager of the institution at Coimbatore speaks
about the work nature of the petitioner/accused. PW7, Manager of
Coimbatore Branch of the institution speaks about the appointment of
the petitioner/accused. PW10, Deputy Manager of the institution
speaks about non remittance of the amounts by the
petitioner/accused.
(vi) PW12 is the successor of PW1, Sub Inspector of Police, who
took up the further investigation and filed the final report.
5. On being questioned under Section 313 Cr.P.C., the accused
had denied the charges and sought to be tried.
6. To prove the case of the prosecution, P.Ws.1 to 12 were
examined and Exs.P1 to P19 were marked. Though the petitioner had
pleaded not guilty, he has not chosen to examine and witness nor
mark any document.
7. On the basis of the trial, the Trial Court has found the
petitioner guilty for the offence punishable under Section 408 IPC and
convicted and sentenced him as referred to above.
8. Aggrieved against the judgment of conviction and sentence,
the petitioner/accused had preferred Appeal before the Appellate
Court, which concurred with the findings of the Trial Court, against
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which, the petitioner has knocked the doors of this court.
9. The sum and substance of the submissions made by the
learned counsel appearing for the petitioner is as under:-
(i) Both the courts below erred in convicting the petitioner based
on the evidence of PW1 and the documents marked through him viz.,
Exs.P1 to P19. PW1, who has given the complaint, has admitted that
the accused had repaid the entire amount during the period from
19.5.2006 to 2.8.2006.
(ii) It is the specific case that PW1 does not know anything
directly about the incident and he has also stated that if the loanees in
his organization do not repay the amount, it will be brought to their
knowledge within one day. Whileso, though the offence is said to have
been committed by the petitioner during the period from 19.5.2006 to
11.8.2006, the complaint had been preferred only on 28.3.2007. The
courts below failed to take into consideration the long delay in
preferring the complaint.
(iii) Though PW1 had stated that the charge against the
petitioner is that he had not deposited the amount collected during the
period from 19.5.2006 to 2.8.2006, he had admitted that on various
dates between 2.5.2006 and 2.8.2006, the petitioner had deposited
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various amounts into the accounts of the organization and that the
respondent police have not enquired him with regard to that.
(iv) Both the courts below relied on Ex.P15 Auditor Report to
convict the petitioner, however, strangely the Auditor, who is alleged
to have given Ex.P15 Audit Report has not been examined in this case.
(v) The loanees of the organization have not supported the case
of the prosecution and they have also been treated hostile and that the
prosecution thereby has not proved that the amounts were entrusted
to the petitioner.
10. Pointing out the above aspects, the learned counsel
appearing for the petitioner would submit that the sentence imposed
by the courts below is rigorous imprisonment for a period of one year,
whereas the petitioner had already undergone the sentence for about
ten months and the Prison authorities have also issued a certificate
with regard to the same and thereby he would seek to set aside the
order.
11. Mr.S.Sugendran, learned Government Advocate, (Criminal
Side) would submit that both the courts below, based on the evidence
submitted by the prosecution found that the petitioner was employed
as Joint Liability Coordinator of Kathir Foundation and PW1 is the
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Founder of the said institution where the petitioner was entrusted with
the work of collection of loan repayments from various groups and
remitting the same with the bank and the accused, who had collected
a sum of Rs.1,96,237/- during the period from 19.5.2006 to 2.8.2006,
had failed to remit the same and thereby his services were terminated,
however, even thereafter, he had collected a sum of Rs.10,380/-
during the period from 3.8.2006 and 11.8.2006 and failed to remit
the same and thereby, he had misappropriated to the tune of
Rs.2,06,617/-. He would also submit that the prosecution, by
examining the witnesses PWs 1 to 12 and marking documents Exs.P1
to P19, had proved the case and both the courts below have rightly
found the petitioner guilty and thereby convicted and sentenced him
for the offence punishable under Section 408 IPC.
12. Heard the learned counsel for the parties and perused the
materials available on record including the judgments of both the
courts below.
13. It is the case of the de facto complainant/PW1 that the
petitioner was employed as Joint Coordinator in the organization and
that during the relevant period i.e., from 19.5.2006 to 2.8.2006, he
was in charge of making daily collections and remitting the same in the
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bank and since he did not remit the amounts, the matter was referred
to a private Auditor and the Audit Report is marked as Ex.P15 .
14. The Trial Court, basing reliance on Ex.P15 Audit Report, had
found the petitioner/accused guilty and the appellate court also
confirmed the same. However, the Private Auditor, who is alleged to
have given Ex.P15 Audit Report, has not been examined by the
prosecution. Further, during the cross examination, PW1 had admitted
that even if there is a delay of repayment of loan by the loanees, it will
be brought to the knowledge of the organization within one day and
he had also admitted that he had no personal knowledge about the
documents filed by him when he was examined in chief. The relevant
portion of the evidence of PW1 is extracted hereunder for ready
reference:-
"xU egUf;F fld; tH';Fk; nghJ vd;d vd;d
Mtz';fs; bgwg;gLk; vd;gJ vdf;F neuoahf
bjhpahJ/ M$h; vjphpia rk;gt (sic) vdf;F
bjhpahJ vd;why; rhpjhd;/ fld; th';fpa egh; xU
ehs; gzk; fl;l jtwpdhy; Tl v';fs; epWtdj;jpw;F
jfty; bjhptpf;fg;gLk; vd;why; rhpjhd;/ vjphpapd;
Ra cjtp FGtplk; ,Ue;J gzk; tNypj;J t';fpapy;
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brYj;JtJ kl;Lk;jhd; vd;W brhd;dhy; rhpjhd;/
$dthp v';fs; t';fpapy; 2006 $dthpapy;ypUe;J $&d;
tiu Rg;gpukzpak; vd;gth; fpis nkyhsuhf gzpapy;
,Ue;jhh; vd;why; rhpjhd;/ g[jpa cjtp FGf;fSf;F
nkyhsh; jhd; fld; bjhiaia fld; bgWgtUf;F
neuoahf jUthh; vd;why; rhpjhd;/ Kjy;
tprhuizapy; ehd; jhf;fy; bra;j Mtz';fs; Fwpj;J
vdf;F neuoahf bjhpahJ vd;why; rhpjhd;/ ehd;
ntW mYtyf ntiyahf nfhit te;j rkaj;jpy;
g[fhh; bfhLj;njd;/ rk;gtk; gw;wp vd;dplk; jfty;
brhy;yp Vw;fdnt jahhpj;j g[fhhpy; ehd; ifbahg;gk;
bra;njd;/ g[fhiu ehd; 28/3/2007e; njjp ehd;
bfhLj;njd; vd;why; ePz;l fhyk; Mfptpl;ljhy; njjp
vdf;F "hgfk; ,y;iy/ Ra cjtp FGf;fsplk;
,Ue;J 19/5/2006 Kjy; 2/8/2006 tiu tNy; bra;j
gzj;ij t';fpapy; brYj;jtpy;iy vd;gJ jhd;
Fw;wr;rhl;L vd;why; rhpjhd;/ 2/5/2006. 3/5/2006. 4/5/2006.
6/5/2006. 7/5//2006. 11/5/2006. 12/5/2006. 13/5/2006. 14/5/2006.
15/5/2006. 24/5/2006. 19/5/2006./ 26/5/2006. 27/5/2006.
2/6/2006. 3/6/2006. 5/6/2006. 6/6/2006. 7/6/2006.
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8/6/2006. 10/6/2006. 12/6/2006. 13/6/2006. 15/6/2006.
17/6/2006. 19/6/2006. 20/6/2006. 21/6/2006. 23/6/2006. 22/6/2006.
26/6/2006. 24/6/2006. 30/6/2006. 28/6/2006. 3/7/2006. 4/7/2006.
8/7/2006. 7/7/2006. 6/7/2006. 12/7/2006. 14/7/2006. 17/7/2006.
18/7/2006. 21/7/2006. 22/7/2006. 24/7/2006. 25/7/2006.
27/7/2006. 28/7/2006. 29/7/2006. 1/8/2006. 2/8/2006. 2006k;
tUlj;jpy; Mfpa njjpfspy; Irprpv!; t';fpapy; 61 520
11320 vd;w fzf;fpy; vjphp; brYj;jpa[s;shh; vd;why;
rhpjhd;/ nghyprhh; vd;id tprhhpf;ftpy;iy/"
15. Further, the prosecution has examined the loanees for the
purpose of proving that they have entrusted the amounts to the
petitioner for depositing in the bank account of the organization,
however, those witnesses have not supported the case of the
prosecution. Therefore, no other legal evidence has been let in by the
prosecution to prove that the amounts were entrusted to the petitioner
and that he had failed to remit it into the accounts of the complainant
organization. The prosecution has failed to prove its case beyond all
reasonable doubts. The courts below have erred in convicting the
accused based on the documents, which have not been supported by
proper evidence.
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16. In view of the above, the judgment rendered by the V
Additional District and Sessions Judge, Coimbatore in Crl.A.No.320 of
2018 confirming the judgment of conviction and sentence passed by
Judicial Magistrate II, Coimbatore in C.C.No.712 of 2007 is set aside.
The criminal revision case is allowed. Fine amount paid, if any, shall
be refunded.
11.1.2022.
Index: Yes/No.
Internet: Yes/No.
ssk
To
1. V Additional District and Sessions Judge,
Coimbatore.
2. Judicial Magistrate II, Coimbatore.
3. The Sub Inspector of Police,
District Crime Branch,
Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
ssk.
Criminal Revision Case No.40 of 2021
11.1.2022.
https://www.mhc.tn.gov.in/judis
