HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.R. No. : 76 of 2002 Reserved on: 1.6.2009 Decided on: 2.7.2009. Devi Ram ……… Petitioner. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Tara Singh, Advocate. For the respondent: Ms.Shubh Mahajan, Deputy Advocate General and Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is a revision petition filed by the petitioner under Sections 397 read with Section 401 of the Code of Criminal Procedure against the judgment, dated 19.4.2002, passed by the learned Sessions Judge, Bilaspur, vide which he upheld the findings of the learned Judicial Magistrate Ist Class, Bilaspur, dated 11.1.1996, holding the petitioner guilty of the charge framed under Section 408 of the IPC. However, the sentence imposed by the learned trial Court of simple imprisonment for three years was modified to simple imprisonment for six months and ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - to pay a fine of Rs.1,000/-. In default of payment of fine, the petitioner was to undergo imprisonment for a further period of six months. Briefly stated the facts of the case are that the petitioner was a salesman in Swahan Cooperative Society, District Bilaspur, in between 1.7.1990 to 30.6.1991. During the course of his employment as a salesman, the petitioner used to receive the supply of various items like sugar, palmolene oil, urea fertilizer etc. and after the sale, the sale proceeds used to be deposited with PW-2 Ranjit Singh, the then Secretary of the Society. In October, 1990, the audit of the Society was conducted by Auditor PW-9 Amar Nath, who found that the petitioner had failed to deposit the sale proceeds of the above items amounting to Rs.46,461.22P.. The audit report Ext.PW-1/G was prepared which was sent to the Assistant Registrar, Cooperative Societies PW-1 B.D. Grower, who lodged a complaint with the police, vide report Ext.PW-1/D on the basis of the resolutions Exts.PW-1/A, PW-1/B and PW- 1/C. On the basis of the report, the FIR was registered. During the investigation, the police took into possession the record, got the specimen signatures of the petitioner for comparison with questioned documents and on receipt of the opinion of the hand writing expert Ext.PW-11/N that these entries in the relevant record were in the hand of the petitioner, a prima facie case was made out and the challan was filed before the learned trial Court for offence punishable under Section 408 of the IPC. The learned trial Court held the petitioner guilty, convicted - 3 - and sentenced him, which sentence was modified by the learned Appellate Court, as detailed above. I have heard the learned counsel for the petitioner and the learned Assistant Advocate General for the respondent/State. The findings of the learned trial court holding the appellant guilty under Section 408 of the IPC, which findings have been affirmed by the learned Appellate Court, have not been challenged before this Court in the revision petition filed by the petitioner. Even in the grounds of petition, no such plea was taken and, therefore, it is clear that the findings of the learned trial Court holding the petitioner guilty under Section 408 of the IPC and affirmed by the learned Appellate Court after due appraisal of the evidence are liable to be affirmed. It may be pointed out that during the course of trial before the learned trial Court, in his statement under Section 313 of the Cr.P.C., the petitioner had admitted that he was the salesman of the Society and he had misappropriated the amount so found by the Auditor in his report and, therefore, the evidence in this regard does not need to be referred again. It has also been pointed out by the learned counsel for the petitioner himself that during the inquiry proceedings also, the petitioner had admitted his liability to pay the amount. In view of the above discussion, it is clear that the findings of the learned trial Court, affirmed by the learned Appellate Court, holding the - 4 - petitioner guilty under Section 408 are liable to be affirmed, which are affirmed accordingly. The only point raised by the learned counsel for the petitioner during the course of arguments was that the petitioner had deposited part of the amount earlier and the remaining amount alongwith interest has been deposited by him in full and since he had deposited the amount, is not a previous convict and, therefore, he deserves the leniency of the Court. It was also submitted that the report of the Probation Officer, which was called during the proceedings of the case, be considered and the petitioner be released on probation. The fact that the amount in question has been deposited by the petitioner in full, alongwith interest, during the pendency of the present petition was sought to be substantiated by the petitioner who had filed an application under Section 482 of the Cr.P.C. for placing on record the certificate/receipt proving this fact. The application being Cr.M.P. No.323 of 2009 was filed in this regard which was allowed. A perusal of the copy enclosed therewith shows that the petitioner had filed his affidavit that he had deposited the amount in full. However, he had alleged in the application that the amount had been deposited by him alongwith interest and also enclosed therewith a photocopy of the certificate issued by the Liquidator of the Society, dated 8.4.2009, that the amount has been deposited by the petitioner with the Society in lump sum and no further amount is recoverable from him. The original receipt should have been placed on record. - 5 - However, time was given to the learned Assistant Advocate General to verify the correctness and make submissions in this regard. He, however, could not verify the correctness since the Society had gone in liquidation but he has not challenged the authenticity of this certificate allegedly issued by the Liquidator and in case some amount is left, it is for the Liquidator or the Society to recover in accordance with law. For arguments sake, I am accepting this contention that the amount has been deposited by the petitioner in full. To substantiate his submissions that the petitioner deserves leniency to be released on probation, the learned counsel for the petitioner had relied upon the decision of the Apex Court in Bore Gowda versus State of Karnataka, (2000) 10 Supreme Court Cases 260. The facts of the said case show that the appellant was convicted under Section 408 of the IPC and his sentence had been reduced to rigorous imprisonment for one month. The appellant was the Secretary of a Cooperative Society. During audit report, some irregularities had been detected on the basis of which he was prosecuted. The irregularities occurred in the year 1981-82. It was observed that thee instances for which the present cases were registered and charge-sheeted pertain to small amounts like Rs.1812/- and below. It was observed by their Lordships that the learned counsel for the appellant submitted that as soon the irregularities had been pointed out, the appellant had replenished the entire amount together with interest, which means the Society had not been put to loss. - 6 - It was also observed by their Lordships in the above case that in view of the fact that it all happened in the year 1981-82 and the judgment was being passed on September 27, 1999, after about 18 years, their Lordships held that the appellant deserves to be released under the provisions of Probation of Offenders Act by executing a bond for a period of three years. A perusal of this decision clearly shows that their Lordships had considered the facts of the case i.e. when the offence was committed by the appellant, the amount involved which was less than Rs.2,000/- and, therefore, they had granted the benefit of probation to the appellant. No such law has been laid down that in all such cases, the benefit should be granted to persons held guilty under Section 408 of the IPC. Therefore, the facts of both the cases have to be considered and if the facts are almost similar, the said benefit could have been granted to the petitioner in the present case. In my view, two facts distinguish the said case from the present case. In the said case, the occurrence had taken place about 17/18 years ago but the amount involved was Rs.1812/- and the same had been deposited with interest as soon as the irregularities had been detected. In the present case, though the occurrence had taken place in 1990 i.e. about 18 years ago, but the amount involved was substantial i.e. Rs.46,461.22P. The irregularities were detected in audit report submitted in October 1990, but the petitioner never made any efforts to deposit the amount alongwith interest. According to the reply to question No.10 in his statement under Section 313 - 7 - of the Cr.P.C., the petitioner submitted that he had deposited a sum of Rs.5,000/- in the Society and he continued enjoying with the balance amount of about Rs.41,000/- and deposited the same only during the pendency of the present petition which was deposited by him as per certificate referred to above on 8.4.2009 only. Thus, it is clear that the petitioner never deposited this amount and continued enjoying the benefit of the amount even inspite of the audit report and findings of the two courts below that he had misappropriated this amount. It was not a question of irregularities which were detected for a minor amount, but it was a question of misappropriation of the amount realized from the sale of the items by the petitioner as salesman of the Society. In view of the facts of the present case, I am, therefore, of the opinion that the petitioner does not deserve the leniency to be released on probation. The mere fact that the report of the Probation Officer was called for to be considered if necessary is not sufficient to hold that the same should be considered favourably in favour of the petitioner. It is no ground, as argued by the learned counsel for the petitioner, that the petitioner needed money for the treatment of his wife, as admitted by him in reply to question No.12. It is not a case of misappropriation for one or two days or for one week since he had no money and had to get his wife treated, which still attracted the provisions of Section 408 of the IPC, but in case he had deposited the amount immediately, some - 8 - lenient view could have been taken in view of the above discussion. Keeping in view the above discussion, I accordingly reaffirm my observations that the petitioner does not deserve leniency. The petitioner had misappropriated a huge sum and kept the money for his own use. It is no ground that the amount has been paid now after number of years alongwith interest. The sentence imposed by the Court has to be deterrent otherwise a wrong message goes in the Society. There are no special reasons to give benefit of Probation of Offenders Act to the petitioner. Therefore, the plea for grant of benefit of Probation of Offenders Act is declined. The learned Appellate Court had taken pittance upon the petitioner and had reduced the sentenced to simple imprisonment for six months and fine of Rs.1,000/-, which calls for no interference by this Court. Therefore, there is no merit in the petition filed by the petitioner, which is dismissed accordingly. Learned trial Court shall issue warrants of arrest for petitioner to serve the sentence. Compliance shall be reported to this Court within one month from today. July 2, 2009. (V.K. Ahuja), (TILAK) Judge.