1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 936 of 2001 Daulat Singh S/O Shri Narayan Singh Resident of Village Ukhimath Police Station Ukimath District Rudraprayag. …………… Revisionist Versus State of Uttaranchal ………….. Opposite party Shri Lokendra Dobhal, Advocate, present for the revisionist Smt. Mamta Bisht, A.G.A, present for the State Hon’ble Prafulla C. Pant, J. This revision is directed against judgment and order dated 20.09.2001, passed by Sessions Judge, Rudraprayag, in criminal appeal No. 2 of 2001, whereby said court has dismissed the appeal of the revisionist Daulat Singh and affirmed his conviction and sentence recorded by the trial court (Chief Judicial Magistrate Chamoli at Gopeshwar) in criminal case no. 338 of 1995, in respect of offences punishable under section 409, 467, 468, 471 I.P.C. 2 (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Prosecution story in brief is that revisionist Daulat Singh was posted as a ‘seller’ in the cooperative society, Ukimath. In the year 1992-1993 on enquiry it was found that huge financial regularities have been committed. An inspection was got made on 25.01.1993 which revealed that revisionist Daulat singh after collecting sale amount of Rs. 47,775 did not deposit the same in the account of the society nor made any entry of the receipts in the cash book. He admitted fault on this part at the time of the inspection. On further enquiry, it was found that there was yet another embezzlement of Rs. 42,022/- in the society. A First Information Report was got lodged against the accused/revisionist Daulat Singh and one Brij Mohan Nautiyal who was secretary of the society. The investigating officer submitted charge sheet against both of them. Chief Judicial Magistrate, Chamoli, after giving necessary to the accused and hearing the parties, framed charge of offences punishable under section 409, 467, 468, 471 I.P.C against both the accused namely Daulat Singh and Brij Mohan Nautiyal, who pleaded not guilty and claimed to be tried. The Chief Judicial Magistrate Chamoli, thereafter recorded the prosecution evidence and put the same to the accused under section 313 of Cr.P.C. On behalf of the prosecution PW1 Bachan Singh Rawat 3 Assessment Development Officer PW2 Cosntable Balbir Singh PW3 Gulab Chandra Verma observer of the cooperative society, PW4 Sub Inspector Omvir Singh who investigated the crime, and PW5 Vijay Kumar Yadav, Sub Divisional Magistrate were got examined. No evidence in defence appears to have been given on behalf of the accused. The trial court vide judgment and order dated 06.02.1998 passed in criminal case no. 3381 of 1995 found the accused guilty of charge of offences punishable under section 409 and 467 I.P.C. After hearing on sentence, each one of the convicts was sentenced to simple imprisonment for a period of three years and directed to pay a fine of Rs. 25000/- under section 409 I.P.C, and simple imprisonment for a period of two years and fine of Rs. 10000/- under section 467 I.P.C. Aggrieved by said judgment passed by the trial court revisionist Daulat Singh preferred criminal appeal no 06 of 1998 before the Sessions Judge Chamoli. Another convict BrijMohan Nautiyal also preferred connected appeal no. 5 of 1998 before Sessions Judge Chamoli. It appears that new Sessions Division was created in the year 2000-2001, and both the criminal appeal were transferred to the court of Sessions Judge Rudraprayag. (4) Learned Sessions Judge, Rudraprayag after hearing the parties disposed of both the appeals vide impugned judgment and order dated 20th of September 2001 which 4 were renumbered as 2 of 2001 and 3 of 2001. The appeal of Brij Mohan Nautiyal was allowed by the appellate court but the appeal of revisionist Daulat Singh was dismissed. Hence, this revision. (5) Learned Counsel for the rivisionist drew attention of this court to section 197 of Code of Criminal Procedure 1973, and it is argued that the Magistrate had no power to take cognizance in respect of a public servant without sanction from the Government in the matter. On perusal of section 197 of Cr.P.C, this court finds it is not that every public servant is protected from prosecution unless the sanction is given by the concerned Government. Sanction of the Government is required to prosecute only in respect of those public servants who could not be removed from their office save without sanction of the Government. The present revisionist who was seller of the cooperative society, was the public servant but it is nobody’s is case that this public servant could not have been removed unless the sanction is obtained from the Government. That being so this court does not find that the revisionist is protected under section 197 of Cr.P.C. The second argument advanced on behalf of the revisionist is that the appellate court has committed error of law by acquitting the co-accused Brij Mohan Nautiyal and affirming the conviction of the revisionist on the same evidence. I have gone through the impugned order passed by the appellate 5 court and also perused the Lower Court Record. The cases of the present revisionist and that of Brij Mohan Nautiyal are different. Brij Mohan Nautiyal was Secretary of the cooperative society and he was not responsible for making entry in the cash book. He was not the person who collected the amount or to whom the amount was entrusted. As against this accused Daulat Singh (revisionist) was the ‘seller’ who used to collect the money directly from the members of the public and as such there was entrustment of the amount collected by him, on behalf of the society, which was not deposited by him in the account of the society nor any entry was made in the cash book. So unlike the case of Brij Mohan Nautiyal who was simply negligent in looking after the case of the society the revisionist case is serious, and there is sufficient evidence of commission of crime by him. (6) Lastly, it is pleaded on behalf of the revisionist that the punishment awarded by the trial court is harsh and excessive. It is further submitted that the petitioner is now aged 71 years. Considering the fact and circumstances of the case, this court is of the view that the ends of justice would be met if the sentence of imprisonment is reduced to simple imprisonment for a period of one year, maintaining the fine imposed by the trial court under section 409 I.P.C. Similarly reducing the sentence to simple imprisonment for a period of one year maintaining the fine directed to be 6 paid by the trail court under section 467 of I.P.C would meet the end of the justice. (7) Accordingly, this revision is disposed of affirming the conviction of the revisionist Daulat Singh under section 409 and 467 I.P.C, but reducing the sentence of imprisonment to a period of one year instead a period of three years under section 409 I.P.C, and imprisonment for a period of one year, instead two years under section 467 I.P.C without interfering with the sentence of fine passed by the trial court and affirmed by the appellate court. Let the Lower Court Record be sent back to the Lower Court so that the revisionist Daulat Singh is made to serve out the remaining sentence as modified by this court. The bail granted by this court stands cancelled. (Prafulla C. Pant, J.) Dt.06.05.2010 NP