IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Crl.Rev.Pet.No. 114 of 1998(C) ------------------------------ CRA.22/1996 of ADDL. SESSIONS COURT, THRISSUR CC.28/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... REVN. PETITIONER: --------------------------------- PAUL, S/O.CHERIYA, OOKEN HOUSE, KANIMANGALAM VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.JOHNSON MANAYANI RESPONDENTS: ----------------------- 1. M.SURESH, SECRETARY, KOORKANCHERRY SERVICE CO-OPERATIVE BANK LTD. NO.36, MOOKKONIL HOUSE, VIYOOR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU SMT.J.AGNES FOR PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.114 of 1998 =================== Dated: 28.08.2008 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner, who is the accused in C.C. No.28 of 1995 on the file of the J.F.C.M-I, Thrissur for offences punishable under Sections 403, 408, 409, 420 and 477A IPC, challenges the conviction entered and the sentence passed against him for the aforementioned offences concurrently by the courts below. 2. The case of the prosecution can be summarised as follows: The accused was functioning as the acting Secretary of the Koorkkanchery Service Co-operative Bank during the period from 7.8.1967 to 29.1.1989. For the period from 30.1.69 to 19.10.90 he was functioning as the Secretary of the said Bank. Lucy, the wife of the accused had availed a loan on 9.9.98 for a sum of Rs.10,000/- and she executed an equitable mortgage to secure the loan. While the loan was still outstanding, the accused on 18.7.1990 returned all the documents to his wife Lucy. The accused also had taken a loan of Rs.15,000/- on Crl.R.P.No.114 of 1998 -:2:- 11.6.90 without making necessary entries in the books of accounts of the Bank. That transaction has not been settled so far. One Thanka had availed of a gold loan to the extent of Rs.2400/- on 7.7.89. Eventhough the said Thanka repaid the money, the accused did not make necessary entries in the books of the bank and misappropriated the same. He did the same act in respect of another loan availed of by Thanka. One Antony had deposited a cheque of Rs.11,747.60 for collection. The said amount was paid immediately to Antony. When the proceeds were received after collection of the cheque, it is seen that the accused credited the amount to his personal account and withdrew the amount from his account. The accused has thus committed falsification of the accounts of the bank and criminal breach of trust and misappropriation of a sum of Rs.53,361.70. The accused has thereby committed offences punishable under Sections 403,408,409,420 and 477A. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 Crl.R.P.No.114 of 1998 -:3:- witnesses as P.Ws 1 to 7 and got marked 26 documents as Exts. P1 to P26. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 6.1.96 found the revision petitioner guilty of the offences charged against him and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and on default to pay the fine to suffer simple imprisonment for one month under Section 403 IPC and rigorous imprisonment for two years each and a fine of Rs.2,000/- and on default to pay the fine to suffer simple imprisonment for two months under Section 408,409 & 477(A) IPC. On appeal preferred by the revision petitioner before the Sessions Court, Thrissur as Crl.Appeal No.22 of 1996, the lower appellate court as per judgment dated 7.2.98 dismissed the appeal confirming the conviction entered Crl.R.P.No.114 of 1998 -:4:- and the sentence passed against the revision petitioner. Hence, this Revision. 6. Eventhough the learned counsel appearing for the revision petitioner assailed on various grounds the conviction entered against the revision petitioner, in as much as the conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case, this Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. The learned counsel for the 1st respondent also confirms that the revision petitioner has paid the entire amounts due to the 1st respondent- bank and the bank has no subsisting claim or grievance over the issue. If so, I do not think that the petitioner deserves penal servitude by way of incarceration. Under these circumstances, I am inclined to put the revision petitioner on fine. The sentence imposed by the courts below is set aside and for his conviction under Section Crl.R.P.No.114 of 1998 -:5:- 403 IPC, the revision petitioner is sentenced to pay a fine of Rs.500/- and on default to pay the fine to suffer simple imprisonment for 10 days. For his conviction under Sections 408,409 and 471 IPC, he is sentenced to pay a fine of Rs.500/- each and on default to pay the fine to suffer simple imprisonment for 15 days each. The petitioner shall deposit the fine amount before the trial court within one month from today. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. Dated this the 28 th day of August, 2008. V.Ramkumar, Judge. sj