Criminal Revision No.826 of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.826 of 2001 Date of Decision: December 24, 2009 Pawan Kumar .......Petitioner Versus U.T.Chandigarh .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Raman Mahajan, Advocate for the petitioner. Mr.Rajiv Sharma, Standing counsel for UT, Chandigarh. --- JITENDRA CHAUHAN, J. 1. The present revision petition has been directed against the judgment and order dated 24.4.2001, whereby the Additional Sessions Judge, Chandigarh, has partly allowed the appeal of the petitioner and acquitted him under Section 420 of the Indian Penal Code, however, conviction and sentence awarded by the trial Court under Section 409 of the Indian Penal Code to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,500/- and in default thereof, to undergo rigorous imprisonment for two months, was affirmed. Criminal Revision No.826 of 2001 -2- 2. In brief, the case of the prosecution is that on 4.1.1989, a complaint was received in Police Station West, Chandigarh from Shri Rajinder Singh, Assistant General Manager, to the effect that accused Pawan Kumar son of Shri Faqir Chand, Salesman, was posted as Incharge of Super Bazar Grossing/Cloth Branch, located in the campus of Punjab Engineering College, Chandigarh, vide office order dated 29.1.1987. On transfer from the said Branch, said Pawan Kumar handed over the goods worth Rs.1,30,304.80p to the successor-salesman Shri J.K.Goel against the total liability of Rs.3,10,318.28p. Thus, a shortage of goods worth Rs.1,80,013.48p was found against the accused-petitioner Pawan Kumar in his capacity as salesman. On the basis of this complaint, a case was registered against the accused-petitioner Pawan Kumar for embezzlement of an amount of Rs.1,80,013.48p. After completion of investigations, the challan was presented in the Court. 3. Accused-petitioner was charge-sheeted under Sections 409/420 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as 16 witnesses in all. 5. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure in which he admitted that he was working as Salesman in Central Consumer Store, Engineering College, Branch in the year 1987-88. However, he denied the allegations levelled against him and examined one Hitesh Chand as DW1 in defence. 6. It is not disputed that the accused-petitioner was working as public servant in the year 1988-89 and was entrusted with the public property. Criminal Revision No.826 of 2001 -3- 7. The present revision was admitted on 18.5.2001 and the petitioner was ordered to be released on bail. 8. Learned counsel for the petitioner has submitted that the learned Appellate Court dismissed the appeal on the ground that the petitioner has admitted liability in his statement under Section 313 of the Code of Criminal Procedure, which is not sufficient to convict the petitioner. He has further submitted that the learned Appellate Court has fastened the guilt on account of his signatures on liability registers, Exhibit P38 to P41, without proving the contents and entries of these registers in accordance with law. The evidence of Hitesh Chand, DW1, to the extent that he was not able to produce records of sale summary and credit sale summary because daily sale summary record has been disposed of in open auction and had been destroyed by the Super Bazar in 1993, has been ignored by the learned Appellate Court. 9. It has been further argued that Assistant General Manager Rajinder Singh, PW3, has admitted in his cross-examination that liability register indents, cash receipts, voucher etc. were not tallied at the time of registration of FIR. He has also admitted that Exhibit PD has been prepared only on the basis of liability register. His statement is only to the extent that it was the duty of Legal Assistant to prepare Exhibit PD and the same was forwarded to him only for signatures. It is further contended that Rajinder Singh, PW3, had no knowledge about the complaint which was sent to the police and on the basis of which, FIR was registered. 10. Learned counsel for the petitioner also submits that no effort was made by the learned Courts below to verify the veracity of Exhibits P38 to P41 in the absence of sale summary and credit sale summary record. Criminal Revision No.826 of 2001 -4- 11. Learned counsel appearing for respondent-Union Territory has submitted that the accused-petitioner had admitted the liability under Section 313 of the Code of Criminal Procedure, therefore, no lenient view should be taken. 12. I have heard learned counsel for the parties and perused the record. 13. As regards the contention that there is no sufficient evidence against the petitioner to connect him with the criminal breach of trust, I feel that there is ample evidence on record to connect the petitioner with the commission of offence. It is proved from the facts on record that the petitioner had been receiving the goods, which were duly proved by Satinder Kumar, PW1, with the help of various vouchers, Exhibits P1 to P71, cash receipts, Exhibits P71 to P100, which are available on record. It has also come in the statement of Assistant General Manager Rajinder Singh, PW3, that at the time of handing over of the charge to Shri J.K.Goel, Salesman, the petitioner had handed over the charge of the goods worth Rs.1,30,304.80p as against the liability of Rs.3,10,318.28p, which is duly admitted by the petitioner and, in this manner, the petitioner embezzled the amount of Rs.1,80,013.48p. 14. It is made out from the statement of Jai Kishan Goel, PW5, that the petitioner had handed over the charge of grocery goods worth Rs.1,30,304.80p and charge report, Exhibit P55, in this regard was prepared, which bears the signatures of both of them, therefore, in the present case, the original liability register is proved. The petitioner has admitted his liability, therefore, the case of the prosecution is not solely based on account books only, rather, there is other material also on record which proved the Criminal Revision No.826 of 2001 -5- entries of the account books. 15. As regards the submission that Sub Inspector Bans Raj, PW12, the Investigating Officer, could not name the author of Exhibit PD, on the basis of which, FIR was registered. In this regard, I feel that when the petitioner has acknowledged the entrustment of goods, then it is his duty to account for the same. The shortage in the present case is proved. He has admitted his signatures on physical verification memos, charge report besides his admission qua liability in his statement under Section 313 of the Code of Criminal Procedure, which are sufficient to discard the case of the petitioner. In the circumstances, the conviction and sentence of the petitioner under Section 409 of the Indian Penal Code is liable to be maintained. 16. In the instant case, the FIR was registered on 4.2.1989. The accused-petitioner was convicted under Section 409 of the Indian Penal Code on 11.11.1999. The petitioner has been facing trial for the last more than 20 years. 17. For the aforesaid reasons, I am of the considered view that the sentence of imprisonment already undergone by the petitioner shall meet the ends of justice. 18. Consequently, the conviction of the petitioner is maintained. However, the petitioner's sentence of rigorous imprisonment of two years is reduced to the period already undergone by him, however, the petitioner is sentenced to pay a fine of Rs.25,000/-. He will deposit this amount with the trial Court within a period of two months from the date of receipt of certified copy of this order. Needless to say, if the petitioner fails to comply with the direction of depositing the amount of fine in the trial Court within Criminal Revision No.826 of 2001 -6- the period as stipulated above, this revision petition shall be deemed to have been dismissed and petitioner shall undergo his remaining /substantive sentence awarded to him after setting of the period already undergone. The impugned order of sentence shall stand modified to the extent indicated above. 19. This revision petition stands disposed of accordingly. ( JITENDRA CHAUHAN ) December 24, 2009 JUDGE SRM Note: Whether to be referred to reporter ? Yes/No