Crl.R. No.1123 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.R. No.1123 of 2005 DATE OF DECISION: May 26, 2011 DINESH KUMAR VEDPATHI ...PETITIONER VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. SALIL BALI, ADVOCATE FOR THE PETITIONER. MR. SANDEEP MOUDGIL, DAG, PUNJAB. M.JEYAPAUL, J.(ORAL) 1. The revision petitioner Dinesh Kumar Vedpathi was convicted for the offence under Section 409, 467 and 471 IPC and was sentenced to undergo R.I. for 2 years and to pay a fine of 100/- and in default to undergo further period of 3 months, for each of the offences. 2. The gravamen of the charge as against the revision petitioner is that the revision petitioner who was posted as Accountant in the year 1988 in North Zone Cultural Centre, Patiala embezzled a sum of `20,000/- having falsely shown in the cash book maintained by him on 19.3.1988 that he had in fact advanced a sum of `20,000/- to Paramjit Singh Sidhu, Production Manager of North Zone Cultural Centre, Patiala. 3. The trial Court having relied upon the evidence of PW1 Surender Bansal from North Zone Cultural Centre, Patiala, who spoke about the false entries found in the cash book maintained by the revision petitioner Crl.R. No.1123 of 2005 -2- as though an advance of `20,000/- was paid to PW4 Paramjit Singh Sidhu and the evidence of PW4 Paramjit Singh Sidhu that he had not received any advance amount of `20,000/- from the revision petitioner, as found in the cash book maintained by him, returned a verdict of conviction holding that the revision petitioner committed not only misappropriation of a sum of `20,000/-, having betrayed the trust reposed in him by the Department, but also created false entries in the cash book and used the same as genuine to show that in fact PW4 Paramjit Singh Sidhu received an advance amount of `20,000/- from North Zone Cultural Centre, Patiala. 4. The appellate Court having thoroughly adverted to the evidence on record and having evaluated the same, confirmed the verdict of conviction and sentence recorded by the trial Court. 5. Learned counsel appearing for the revision petitioner would submit that there was no question put to the revision petitioner under Section 313 Cr.P.C. reflecting the evidence of PW4 Paramjit Singh Sidhu that he had not received any advance amount of `20,000/- from the revision petitioner who functioned as Accountant. 6. Per contra, the learned DAG, Punjab appearing for the State would submit that the entire trial was quite transparent. Learned counsel for the revision petitioner as well as the revision petitioner himself was present during the course of trial and they were very much aware of the trial proceedings and therefore, the lapse on part of the trial Court in not putting a particular incriminating circumstance under Section 313 Cr.P.C. to the revision petitioner does not vitiate the whole trial. Crl.R. No.1123 of 2005 -3- 7. I am in full agreement with the submission made by the counsel appearing for the State. The fact remains that the revision petitioner did effectively participate in the trial that was held by the trial Court. He was also ably associated by his counsel during the course of examination of witnesses on the side of the prosecution. It is not as if the evidence of PW4 Paramjit Singh Sidhu was recorded behind the back of the revision petitioner or his counsel on record. The presumption is that the revision petitioner and the counsel engaged by him were very much aware of the incriminating circumstances spoken to by PW4 during the course of examination before the trial Court. That being so, some lapse on the part of the trial Court in not properly culling out the incriminating portion from the evidence of PW4 and focusing to the attention of the revision petitioner does not vitiate the trial. Further the revision petitioner could not demonstrate that he was completely prejudiced on account of such lapse on the part of the trial Court. It is brought to the notice of this Court that such a plea that incriminating circumstance was not put to the notice of the revision petitioner was not taken up either before the trial Court or before the appellate Court. Therefore, in my considered view, the revision petitioner cannot now successfully canvass that the whole trial is vitiated on account of lapse on the part of the trial Court in not putting a proper question under Section 313 Cr.P.C. 8. It is submitted by the counsel appearing for the revision petitioner that the sanction order as contemplated under Section 197 Cr.P.C. was not produced before the trial Court. Per contra, learned DAG, Punjab Crl.R. No.1123 of 2005 -4- would submit that the question of obtaining order of sanction to prosecute a public servant under Section 197 Cr.P.C. would arise only in a case where the alleged offence was committed by the public servant while acting or purporting to act while discharging his official duty. 9. In my considered view, committing of embezzlement is not part of the duty of the public servant. The materials on record would go to show that the revision petitioner having strayed from the code of conduct of the public servant committed embezzlement showing the accounts as though he released an advance of `20,000/- to PW4 Paramjit Singh Sidhu. As commission of such an offence does not fall squarely within the discharge of the official duty, in my considered view, there is no necessity to obtain any sanction of the Government concerned for prosecuting the revision petitioner herein. Further, it is brought to the notice of this Court that such a plea was not set up by the revision petitioner either before the trial Court or before the appellate Court. Therefore, I find that the above submission of the learned counsel for the revision petitioner that the revision petitioner was prosecuted without adhering to the provision under Section 197 Cr.P.C. also does not survive for consideration. 10. Pointing to the two sets of charges, learned counsel for the revision petitioner would submit that the charge was not specific with respect to embezzlement alleged to have been committed by the revision petitioner with respect to the employee Paramjit Singh Sidhu (PW4). Such an incongruity in the charges has not been brought to the notice of the trial Court or the appellate Court. For the first time such a plea has been set up Crl.R. No.1123 of 2005 -5- before the revisional Court. If it had been brought to the notice of the trial Court, which in fact framed the charges, it would have come out with an appropriate answer in the judgement itself. The fact remains that as regards the misappropriation of the amount of `20,000/- alleged to have been advanced to PW4, there is a definite charge. Further the revision petitioner has not come out with a case that he was prejudiced on account of two separate charges framed by the trial Court. Therefore, the aforesaid submission made by the counsel also fails. 11. It is submitted by the learned counsel for the revision petitioner that the departmental action initiated against the revision petitioner had not yet been completed by the Department. This Court is least bothered about the departmental action independently initiated by the Department, coming to know of the embezzlement alleged committed by the revision petitioner. This Court is concerned with the present charge of misappropriation of a sum of `20,000/- by forging certain documents and also using the same document as genuine. Therefore, a lapse on the part of the Department in not completing the departmental action is not germane to this case. 12. Learned counsel for the revision petitioner would submit that the Investigating Official in this case was not examined. True that the Investigating Official should have been, in all fairness, examined before the trial Court to speak about the course of investigation he has done and the finding he has arrived at, which culminated in laying final report. But the Court cannot simply ignore the fact that the number of witnesses in criminal trial matters not, but the quality of trustworthy evidence which is produced Crl.R. No.1123 of 2005 -6- by the prosecution matters in criminal trial. Therefore, the lapse on the part of the prosecution in not examining the Investigating Officer does not go to the root of the case, more especially, when the prosecution could establish beyond reasonable doubt that there was an embezzlement to the tune of `20,000/- committed by the revision petitioner. 13. It is finally submitted by the learned counsel for the revision petitioner that the Court may substantially reduce the quantum of sentence, considering the age of the revision petitioner, the duration of trial the petitioner has faced so far and the fact that the petitioner was out of service on account of the alleged misappropriation he committed. 14. Learned DAG, Punjab appearing for the State would submit that a serious crime of misappropriation has been established by the prosecution. Two years R.I. is adequate for the offence committed by the revision petitioner. 15. I have considered the aforesaid submission by the learned counsel appearing for the revision petitioner as well as the State. The fact remains that the revision petitioner has faced the trial for about 21 long years. It is brought to the notice of this Court that the revision petitioner is now aged 60 years. He is already out of service on account of misappropriation he has committed. The amount allegedly misappropriated was only `20,000/-. In the above facts and circumstances, I find that 6 months R.I. for each of the offences alongwith the fine imposed by the trial Court would meet the ends of justice. 16. In view of the above, I uphold the verdict of conviction of the Crl.R. No.1123 of 2005 -7- trial Court as affirmed by the appellate Court. The sentence of 2 years R.I. awarded to the revision petitioner for the offences under Section 409, 467 and 471 IPC is reduced to 6 months R.I. for each of the offences. The fine amount and the default sentence imposed by the trial Court and confirmed by the appellate Court are maintained. 17. The substantial sentence awarded to the revision petitioner for the offences under Section 409, 467 and 471 IPC shall run concurrently. 18. The bail bond executed by the petitioner shall stand cancelled. The revision petitioner shall surrender within 15 days from the date of this judgement, failing which, the trial Court shall issue non-bailable warrant and send him to jail to undergo the expired portion of his sentence. May 26, 2011 (M.JEYAPAUL) Gulati JUDGE