Madras High Court
Perumal vs The Sub Inspector Of Police on 21 January, 2022
Crl.R.C.No.1012 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2022
CORAM
THE HON'BLE Ms. JUSTICE R.N.MANJULA
Crl.R.C.No.1012 of 2016
Perumal ... Petitioner/Accused-2
Vs.
The Sub Inspector of Police,
C.C.I.W.,C.I.D., Vellore,
(Crime No.8/2006) ... Respondent/Complainant
Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., to set
aside the judgement dated 17.06.2016 made in Crl.A.No.291/2010 on the file of I
Additional District Judge, Vellore, Vellore District, whereby upheld the
judgment dated 26.11.2010 made in C.C.No.419/2007 on the file of Judicial
magistrate No.2, Vellore, Vellore District convicting the petitioner for offences
u/s.408 r/w 35, 477(A) r/w 35 of IPC and sentenced to undergo Rigorous
Imprisonment for 3 months and also to pay a fine of Rs.500/- for each count with
default stipulation and acquit the petitioner.
For Petitioner : Mr.R.Ganesh,
Legal Aid Counsel
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
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Crl.R.C.No.1012 of 2016
ORDER
This Criminal Revision Case has been preferred challenging the judgment
of the learned I Additional District and Sessions Judge, Vellore dated 17.06.2016
made in C.A.No.291 of 2010, confirming the judgment of the learned Judicial
Magistrate No.II, Vellore dated 26.11.2010 made in C.C.No.419 of 2007.
2. The Revision Petitioner before this Court was the second accused
before the trial Court.
3. The case of the prosecution is that the first accused was the Assistant
Secretary cum Manager and the second accused was a Cashier cum Clerk of
Thenkadappanthangal Primary Agricultural Co-operative Bank, Belliappa Nagar
Branch. The first accused served in the said branch from 21.01.1999 to
30.06.2004 and the second accused was working from 01.03.2000 till date of
filing this case. The first and second accused with an intention to misappropriate
the funds of the society, had misappropriated a total sum of Rs.1,78,972/- by way
of making false entries in the registers maintained by them and also by omitting
to make relevant entries when the payment were made to the Co-operative Bank
on different heads.
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Crl.R.C.No.1012 of 2016
4. On the complaint given by P.W.1 - Deputy Registrar of Co-operative
Bank, a case was registered in Crime No.8 of 2006 by P.W.12 - D.S.P, C.C.I.W.
and F.I.R. was prepared; P.W.12 took up the case for investigation, examined the
witnesses, seized the relevant records and found out that a total sum of
Rs.1,78,972/- was misappropriated under 8 heads. After completing the
investigation, he filed a charge sheet against the accused for the offence under
Sections 408, 477(A), 468 & 471 r/w. 35 IPC.
5. The misappropriation have been made by making dishonest omission
and commission in the relevant registers while dealing with the following
transactions :-
S.No. Amount Deposited Amount misappropriated
1. Rs.5,400/- Rs.5,552/-
2. Rs.50,500/- Rs.62,620/-
3. Rs.30,000/- Rs.10,800/-
4. Rs.1,50,000/- Rs.1,00,000/-
Total Rs.2,35,900/- Rs.1,78,972/-
6. After the case was taken on file and on being satisfied with the relevant
materials available on records, the learned Judicial Magistrate framed the charges
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Crl.R.C.No.1012 of 2016
against the accused for the offence under Sections 408 r/w. 35 and 477(A) r/w.
35 of IPC and the accused was questioned. Since he pleaded innocence and
claimed to be tried, the trial was conducted.
7. On the side of the prosecution, 12 witnesses were examined as P.W.1 to
P.W.12 and 28 documents were marked as Exs.P1 to P28. When the
incriminating materials surfaced in the evidence of the complainant was put to the
accused under Section 313 Cr.P.C., the accused denied the same. On the side of
the defence, no witness was examined and no document was marked.
8. After concluding the trial and on consideration of the materials available
on record, the learned trial Judge found the accused guilty as under :-
Rank Provision under which convicted Sentence
A1 Sections 408 r/w. 35 & 477(A) r/w. 35 Rigorous Imprisonment of One Year
of IPC and a fine of Rs.1,000/- in default to
undergo rigorous imprisonment of
one month for each of the offence
A2 Sections 408 r/w.35 & 477(A) r/w. 35 Rigorous Imprisonment of Three
of IPC months and a fine of Rs.500/- in
default to undergo fifteen days
rigorous imprisonment for each of the
offence.
The sentences shall run concurrentlly.
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Crl.R.C.No.1012 of 2016
9. The Criminal Appeals filed by both the accused in C.A.Nos.291 of 2010
and 304 of 2010 was also dismissed on 17.06.2016 by a common judgment.
Aggrieved over that, the second accused has preferred this present case.
10. Heard the learned legal aid counsel for the petitioner/second accused
and the learned Government Advocate (Criminal Side) for the respondent State.
11. The learned counsel for the petitioner submitted that the second
accused/revision petitioner was not involved in any offence as alleged by the
prosecution; as per the evidence of P.W.9 - Suseela, she had redeemed her
jewels which was pledged in the society by repaying the amount; even the
second accused has given a certificate by stating that a sum of Rs.5,552/- paid by
P.W.9 for redeeming her jewels have been collected and entered in the registers;
but the learned trial Judge and the Appellate Judge without considering the
materials available on record in a proper perspective, had convicted the second
accused and hence, this Revision Case should be allowed.
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Crl.R.C.No.1012 of 2016
12. The learned Government Advocate appearing for the respondent State
submitted that both the first and second accused have got the copy of the chest
box key and they have access to it; the learned First Appellate Court has
observed that even payment of Rs.5,552/- paid by P.W.9 was not entered in the
Day Book maintained for collecting jewelery loan repayment; and in the Cash
Chitta maintained by the second accused also, the loan repayment was not
recorded by him; the Courts below have adverted the other evidence available on
record with regard to misappropriation of the amount of the society under other
heads also and hence, it does not suffer from any factual or legal infirmity.
13. Point for consideration :-
Whether the finding of the guilt of the second accused for the offence
under Sections 408 r/w. 35 and 477(A) r/w. 35 of IPC by the learned Judicial
Magistrate II, based on the materials available on record is fair and proper?
14. The fact that the first accused was the Manager and the second
accused was working as a Cashier with the Thenkadappanthangal Primary
Agricultural Co-operative Bank, was not denied. The misappropriation to the
tune of Rs.1,78,972/- has been found out during their respective tenure at the
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Crl.R.C.No.1012 of 2016
Bank. The Enquiry Officer who was examined as P.W.11, has also made an
exhaustive enquiry and in the course of enquiry, it is seen that this
accused/revision petitioner has also given a confession statement - Ex.P26 and in
which, he had admitted his liability.
15. It is not the defence of the petitioner that he has given a confession
statement only due to threat or coercion. P.W.11 - Enquiry Officer is not a
Police Officer and hence, the confession given to P.W.11 can be considered as
an extra judicial confession. Apart from the above documents, the learned trial
Judge has also dealt with the various entries found in the various records marked
in Exs.P14 to P25 in order to arrive at a finding that on various dates, the various
sums have been misappropriated by making false entries or by making no entries.
When a question of fact has been appreciated by the trial Judge and was re-
appreciated by the First Appellate Judge as well as in the Revision Case, the
High Court has got limited scope to once again examine the facts. Unless the
appreciation of the material facts have been made with any patent illegality or the
appreciation was done with any patent omission or commission, this Court can
advert to re-appreciate the evidence. The grounds of appeal does not make out
any questions of law as well. Since the Courts below have appreciated the
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Crl.R.C.No.1012 of 2016
evidence only on the basis of the reliable materials produced by the prosecution,
I find no reason for interference. Further, the document which the Revision
Petitioner attempted to produce before this Court by way of filing his additional
typed set of papers did not form part of the evidence produced before the trial
Court. Without the author of those records examined as defence side witnesses
and the prosecution had an opportunity for cross-examination, the probative
value of those documents cannot be examined. So, I find no merits in this case.
In the result, this Criminal Revision Case is dismissed and the judgment of
the learned I Additional District and Sessions Judge, Vellore, dated 17.06.2016
passed in C.A.No.291 of 2010 is confirmed.
21.01.2022
Speaking/Non-speaking
Index: Yes/No
Internet: Yes/No
Sni
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Crl.R.C.No.1012 of 2016
To
1.I Additional District Judge, Vellore,
Vellore District
2.Judicial Magistrate No.II, Vellore,
Vellore District.
3.The Public Prosecutor,
High Court, Madras.
R.N.MANJULA.,J.
Sni
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Crl.R.C.No.1012 of 2016
Crl.R.C.No.1012 of 2016
21.01.2022
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