Crl. Rev. No.16 of 2003(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No.16 of 2003(O&M) Date of decision:- 16.3.2011 Sohan Singh ... Petitioner Versus State of Punjab ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sanjeev Gupta, Advocate, for the petitioner Mr.P.S.Paul, DAG, Punjab. Gurdev Singh, J (oral) There was one co-operative society by the name of Raipur Handloom Workshop Cooperative Industrial Society Limited (hereinafter referred to as 'the Society'). The petitioner/accused, Sohan Singh, was the president of that Society. On 21.3.1993, a resolution was passed by the Society, vide which the accused was given the authority for getting the cash credit limit of `30,000/-, in Patiala Central Co-operative Bank Limited, Patitala (hereinafter referred to as the 'Bank'), renewed for the period from 1.4.1993 to 31.3.1994. He was authorised to put his signatures on the documents of the bank. Cheque dated 7.7.1993 for the sum of `28,000/- Ex.PW8/A was presented to the bank by the accused and that amount was withdrawn by him from the account of the society. On 19.7.1993, he presented cheque of `1,000/- Ex.PW8/C and on the basis thereof withdrew a sum of `1000/- from the bank. The amount so withdrawn by him was meant Crl. Rev. No.16 of 2003(O&M) -2- for the members of the Society and was to be disbursed to them. The accused failed to do so and criminally mis-appropriated that amount. On 6.10.1993, a resolution was passed by the Society for taking proceedings against the accused. Accordingly, letter was written to the Inspector of the Industrial Co-operative Societies, Patiala, for the resigstration of a criminal case against the accused. That Inspector wrote a letter to the Assistant Registrar for the registration of the FIR against the accused. Thereafter, the Assistant Registrar gave written application to the S.S.P Patiala, and on the basis thereof FIR Ex.P1 was registered against the accused under Section 408 IPC. When the complaint made by the Society was enquired into by Manjit Singh Inspector Co-operative Societies, the accused admitted before him that he had withdrawn `29,000/- on behalf of the Society and utilised that amount for his personal use. He made that statement in writing also (PW7/A). The matter was investigated by Ajaib Singh ASI, who collected the relevant record and recorded the statements of the witnesses. After the completion of the investigation, the challan was put in before the Judicial Magistrate, Ist Class, who found sufficient grounds for presuming that the accused committed offence punishable under Sections 408 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, the prosecution examined Karam Singh PW1, Harchand Singh PW2, Basant Singh PW3, Sarwan Singh PW4, Deva Singh PW5, Shamsher Singh PW6, Manjit Singh PW7, Mihan Singh PW8, Ram Sarup PW9 and ASI Ajaib Singh PW10. After the evidence was closed by the prosecution, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing Crl. Rev. No.16 of 2003(O&M) -3- against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances, except that he was the President of the Society. He stated that all the money matters were being looked into by the cashier of the Society, who was keeping the accounts with him. He had no connection with the money dealings and false case has been made against him on account of the party faction in the Society. He was called upon to enter on his defence, but he did not produce any evidence. After going through the evidence so proved on the record, hearing learned P.P for the State and learned defence counsel for the accused, the Judicial Magistrate, Ist Class, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of `5000/- and in default thereof to further undergo rigorous imprisonment for a period of 15 days, vide judgment dated 19.5.1999. Against that conviction and sentence, the accused preferred an appeal, which was dismissed by the Additional Sessions Judge, Patiala, vide judgment dated 17.12.2002. Now he has come up with the present revision against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the accused that it is neither the case of the prosecution nor any evidence was produced for proving that the accused was servant or clerk of the Society and therefore, he could not have been convicted for the offence under Section 408 IPC. No such document was proved on the record to show that the accused alone, as President of the Society, was entitled to withdraw the amount from the bank. The prosecution itself produced evidence to the effact that all the Crl. Rev. No.16 of 2003(O&M) -4- transactions were being conducted under the signatures of the accused and the cashier of the Society. In that eventuality the cashier of the Society was equally liable, but he was never arrayed as an accused. No document expert was examined by the prosecution for proving that money from the bank was withdrawn under the signatures of the accused. That itself makes whole of the prosecution case doubtful and the conviction of the accused could not have been recorded. He also tried to assert that the accused could not have withdrawn the amount from the bank as, according to the prosecution itself, all the records and the account books were being kept by the cashier. In the last, he has submitted that the accused is old person of 70 years, who has faced the agony of protracted trial for last more than 17 years and the sentence imposed upon him be reduced. Learned State counsel has controverted all these contentions of learned counsel for the accused by submitting that there is sufficient evidence on the record that the accused was President of the Society and in that capacity had withdrawn a sum of `29,000/- from the bank without joining the cashier with him and failed to disburse that amount to the members of the Society and as such criminally mis-appropriated that amount. The maintaining of records and the withdrawal of the amount from the Bank are two different things and that amount could have been withdrawn by the accused in the absence of the records. Looking into the gravity of the offence, there is no question of reducing the sentence of imprisonment so imposed upon the accused. Scope in this revision is very limited. The re-appreciation and re- appraisal of the evidence is not permissible, unless this Court comes to the Crl. Rev. No.16 of 2003(O&M) -5- conclusion that findings so recorded by the trial Court and upheld by the appellate Court are perverse or illegal or are based on misreading of the evidence. After having examined the records of the lower Courts, in the light of the submissions made by learned counsel for the accused, it has been found that there is no perversity or illegality in the finding recorded by those Courts that it was the accused who had withdrawn a sum of `29,000/- from the bank in his capacity of President of the Society and failed to disburse that amount to the members and criminally misappropriated that amount. No doubt, it has also come on the record that money could have been withdrawn from the bank only under the signatures of both the president and cashier. At the relevant time, Karam Singh PW1 was the cashier, who has made categorical statement that the amount was withdrawn from the bank by the accused himself. He made it clear during his cross- examination that he never signed the cheques and the cheques on the basis of which the amount was withdrawn do not bear his signatures. There is nothing on the record to disbelieve his testimony. The prosecution case was fully supported by Harchand Singh PW2, who was the vice-president of the Society and under whose presidentship the resolution was passed by the Society for putting criminal machinery in motion against the accused. The prosecution examined a number of members of the Society; namely, Basant Singh PW3, Sarwan Singh PW4, Deva Singh PW5 and Shamsher Singh PW6. All those witnesses in one voice have stated that the accused had withdrawn a sum of `29,000/- and failed to disburse that amount amongst them. Besides that direct evidence against the accused, the prosecution proved on record the writing Ex.PW7/A given by the accused to Manjit Crl. Rev. No.16 of 2003(O&M) -6- Singh Inspector Co-operative Society. Vide this writing he admitted that he had withdrawn a sum of `29,000/- from the bank and used that amount for his own purposes. According to the said witness, the accused made this very admission before him also. The fact that this amount was withdrawn from the bank by the accused to the exclusion of the cashier, on the basis of two cheques stands proved from the statement of Mihan Singh PW8, who was posted in that bank at the time the amount was withdrawn. On the basis of this evidence, it was correctly concluded by the trial Court and the appellate Court that the accused was entrusted with a sum of `29,000/- in his capacity as the President of Society and he criminally misappropriated that amount. President of the Society cannot be said to be either servant or the clerk and, therefore, it cannot be said that the accused committed the offence under Section 408 IPC. But the fact remains that he had criminally misappropriated the sum of `29,000/-, which had been entrusted to him. Thus, the offence if does not fall under Section 408 IPC, the same falls under Section 406 IPC. It is well settled that if accused is charged for a graver offence and an offence of lesser gravity is made out from the evidence produced on the record, he can be convicted for that offence even in the absence of any charge to that fact. Therefore, the conviction of the accused is upheld but the same is converted into conviction under Section 406 IPC. From the perusal of the records of the trial Court, it is very much clear that the accused was 50 years old at the time the charge was framed against him. That charge was framed in the year 1995. Thus at present he Crl. Rev. No.16 of 2003(O&M) -7- must be about 65 years old. It is also a fact that he is standing his protracted trial since that year. Now he has been convicted for lesser offence. Keeping in view all these facts, the sentence of imprisonment so imposed upon him is reduced from three years to one year subject to the condition that he shall deposit the sum of Rs.29,000/-, so criminally misappropriated by him, in the account of the Society, within a period of three months of the passing of this order, otherwise, the sentence of imprisonment of three years recorded under Section 408 IPC shall deemed to have been recorded for the offence under Section 406 IPC. He be taken into custody to serve the remaining sentence. Revision is disposed of accordingly. The records be returned forthwith. March 16, 2011 (Gurdev Singh) tripti Judge