Madras High Court
Suresh Kumar vs State Rep.By on 1 July, 2022
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.07.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.329 of 2015
and
M.P.No.1 of 2015
Suresh Kumar .. Petitioner
Vs.
State rep.by
The Inspector of Police,
C.C.I.W., C.I.D.
Vellore.
Crime No.2 of 2008 ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the judgment
dated 17.03.2015 passed in C.A.No.89 of 2009 on the file of the learned I
Additional District and Sessions Judge, Vellore, Vellore District,
confirming the judgment passed in C.C.No.33 of 2008 dated 29.10.2009
on the file of the learned Judicial Magistrate No.II, Vellore convicting the
petitioner for the offence under Section 408 IPC and acquit the petitioner.
1/8
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
For Petitioner : Mr.R.Hemalatha
for C.Prakasam
For Respondent : Mr.N.S.Suganthan
Government Advocate (Crl.Side)
ORDER
This Criminal Revision Case is arising out of the prosecution
under surcharge proceedings initiated under Section 81 of Tamil Nadu
Cooperative Societies Act.
2. For misappropriation to the tune of Rs.3,07,805.55, along
with another accused by name Muralidaran the revision petition was
prosecuted based on the report submitted during the departmental
enquiry.
3. The sum and substance of the prosecution case is that the
revision petitioner was working as a Salesman in the Ceylon Refugees
Camp Fair Price Shop, which is under the control of Santhanpakkam
Primary Agricultural Cooperative Bank. He failed to maintain the stock
register and failed to remit the sale amount then and there into the Bank
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
and thereby committed breach of trust and cheated Rs.4,42,363.75.
Charge was framed against the petitioner and the other accused for the
offence under Section 408 of IPC. On appreciation of evidence, the trial
Court held the petitioner guilty of offence under Section 408 of IPC and
sentenced him to undergo one year Rigorous Imprisonment and fine of
Rs.1,000/-; in default six months Simple Imprisonment.
4. This revision petitioner was also found guilty for similar
offence tried in C.C.No.32 of 2008 and the trial Court ordered the
substantive period of sentence imposed in that case shall run concurrently
with the imprisonment of one year Rigorous Imprisonment imposed in
this case. Also ordered set off the period of imprisonment already
undergone.
5. This order of the trial Court was challenged before the
appellate Court in C.A.No.89 of 2009. The appellate Court, on re-
appreciation of the evidence and the defence taken by the appellant that
he was not a regular employee, but only a casual labour and he cannot be
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
held responsible for any shortage or failure to remit the sale proceeds,
held that there is no contra evidence to show that the accused was not
working as Salesman during the relevant period i.e., 03.08.2001 to
10.03.2003, the receipts of stock by the petitioner proved and the non
remittance of the sale amount established by the register maintained as
well as the enquiry report conducted under Section 81. Also taking note
of the fact that the 1st accused has repaid portion of the misappropriated
money during the Section 81 proceedings, confirmed the conviction and
sentence passed by the learned Judicial Magistrate No.II, Vellore, in
C.C.No.33 of 2008.
6. In this revision, it is contended that the Courts below
failed to consider the order passed by the District Court in C.T.A.No.14
of 2007, whereby, the petition is quashed and therefore, there is no
substance in alleging that there was misappropriation of funds.
7. This Court, on considering the evidence let in by the
prosecution which is also wholly supported by the documentary evidence
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
and the conduct of the accused remitting the shortage in piecemeal, does
not find any infirmity in finding of the Courts below.
8. While the connected Revision in respect of C.C.No.32 of
2008 against this petitioner came up for consideration had taken a similar
view and confirmed conviction. However taking note of the other facts
ordered instead of the substantive sentence of imprisonment of one year
Rigorous Imprisonment, reduced to Six Months R.I and directed the
petitioner to pay Rs.50,000/- compensation which is the almost equal to
the alleged misappropriation in that case.
9. Applying the same yard stick, as far as the present case is
concerned the alleged misappropriation is Rs.2,64,308.25. The plea of the
accused is that he repaid portion of it in the course of Section 81 enquiry
is found to be not proved.
10. Therefore, this Court while confirming the conviction of
the petitioner modified the substantive sentence of imprisonment from
one year R.I to Six Months R.I and directed the petitioner to pay Rs.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
Rs.2,64,308.25 as compensation to the Santhanpakkam Primary
Agricultural Cooperative Bank, being the amount misappropriated; in
default to undergo 3 months Simple Imprisonment.
11. The learned counsel for the petitioner states that a
substantial portion of amount alleged to have been misappropriated has
been remitted by the petitioner herein subsequently. But there is no record
to verify the same. Hence if any amount already remitted by the petitioner
towards the misappropriated amount in this case, the same shall be taken
into account towards compensation awarded under this order. The order
of the trial Court to run substantive sentence imposed in C.C.No.32 of
2008 stands confirmed.
12. In the result, this Criminal Revision Case is partly
allowed. Consequently, the connected Miscellaneous Petition is also
closed.
01.07.2022
Internet : Yes/No
Index: Yes/No
rpl
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
To
1. The I Additional District and Sessions Judge, Vellore, Vellore District.
2. The Judicial Magistrate No.II, Vellore.
3. The Inspector of Police,
C.C.I.W., C.I.D.
Vellore.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.329 of 2015
and M.P.No.1 of 2015
Dr.G.JAYACHANDRAN, J.
rpl
Crl.R.C.No.329 of 2015
M.P.No.1 of 2015
01.07.2022
https://www.mhc.tn.gov.in/judis
