Crl. Appeal No. 2627-SB of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 2627-SB of 2009 Date of Decision: November 26, 2010 Ashok Kumar and others ........Appellants Versus State of Haryana .......Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present : None for the appellants. Mr. Satyavir Singh Yadav, DAG, Haryana. SABINA, J. Appellants Ashok Kumar and Jagdish were convicted for an offence under Section 408 of Indian Penal Code by the Judge Special Court, Gurgaon vide judgment dated 19.5.2009 and vide order of the even date they were sentenced till rising of the court and to pay a fine of Rs.5,000/- each. Hence, the present appeal. The brief facts of the case as noticed by the trial court in para 1 of its judgment read as under :- “ The case of the prosecution as unfolded during trial is that Jagdish accused was posted as Salesman in the Primary Co-operative Credit & Service Society (hereinafter to be referred as the Society) Alimudinpur Crl. Appeal No. 2627-SB of 2009 2 District Gurgaon. Accused Ashok was posted as Clerk in the same Society. In the month of January and February, 2004, PW 1 Suresh Kumar, PW-3 Ram Avtar and PW5 Tirlok Chand gave Rs.220/-, Rs.270/- and Rs.290/- respectively to Ashok accused to become the members of the Society. Membership fee was Rs.15/- and remaining amount was paid towards share money. Likewise, PW 2 Satbir Singh, PW4 Virender and PW7 Surender Singh paid Rs.200/- each to Jagdish accused for the same purpose. The accused did not issue them the receipt of the amount so received. Therefore, they made a complaint against them. An enquiry in the matter was conducted by Shri M.S. Rathee, General Manager, Central Co-operative Bank Gurgaon. He submitted his report Ex.PB. In his report, he found both the accused and Secretary of the society guilty of mis-appropriation of the amount paid by the aforesaid persons.” None has appeared on behalf of the appellants. On the last date also none had appeared on behalf of the appellants. I have gone through the record of the case carefully with the able assistance of the learned State counsel. In the present case, the allegations against the appellants are that while appellant Ashok Kumar was posted as a Clerk in the Society and appellant Jagdish was posted as Salesman in the Society they had taken money from certain persons to enable them to become members of the Society. However, the said amount was not entered in the account of the Crl. Appeal No. 2627-SB of 2009 3 Society nor any receipts were issued to the said persons. An inquiry in this regard was entrusted to Deputy Superintendent of Police and thereafter after completion of investigation challan was presented against the appellants. The learned trial Court in para 10 of the impugned judgment has held as under :- “It is true that PW 3 Ram Avtar and PW 5 Trilok Chand had given inconsistent version before Shri M.S. Rathee, who had conducted the enquiry in the matter. It is also true that as per statement of PW-1 Suresh Kumar, Mukhtiar grand father of PW 1 and father of PW 3 and PW 5 was suspended when he was holding the offence of Sarpanch of village Alimuddinpur on a complaint filed by Munshi Ram father of Ashok accused and they are the only witnesses who have deposed against Ashok accused, but, in view of facts of the case, the same cannot be held to be sufficient to disbelieve the statements of PW-1 to PW5 and PW 7 that they had paid the money to both the accused because if the accused had not received any money from them, why did the receipt of the money so received towards share capital was issued on 17.9.2004 when enquiry against them was being conducted. To hush up the matter, M.S. Rathee recorded the statement of Bhim Singh, chowkidar of the village who stated that the amount deposited by PW 1 to PW 5 and PW 7 amounting to Rs.1300/- was given to him by both the accused for returning the same to PW-1 to PW 5 and PW 7. If the Crl. Appeal No. 2627-SB of 2009 4 amount was paid to him, then why did he keep the amount with him so long and question also arises as to why the money was paid to him by both the accused when the same was received by them from PW 1 to PW 5 and PW 7. Said money was received by both the accused towards share capital and thus, there was no question of returning the same. It all is suggestive of the fact that when a complaint against the accused was filed and enquiry in the matter was initiated, both the accused got issued the receipts of said amount.” DW1 Randhir Singh proved the receipts issued to PW1 Suresh Kumar, PW2 Satbir Singh, PW3 Ram Avtar, PW4 Virender, PW5 Trilok Chand, PW 6 Krishan Singh and PW7 Surender Singh. PW1 Suresh Kumar deposed that he had given Rs.220/- to appellant Ashok Kumar in February, 2004. PW2 Satbir Singh deposed that he had given Rs.200/- to appellant Jagdish in February 2004. PW3 Ram Avtar deposed that he had given Rs.270/- to appellant Ashok Kumar in February 2004. PW4 Varinder deposed that the had given Rs.200/- to appellant Jagdish in February 2004. PW5 Trilok Chand deposed that he had given Rs.290/- to appellant Ashok Kumar in February 2004. PW6 Krishan Singh deposed that he had paid Rs.200/- to appellant Jagdish in February 2004. PW7 Surender Singh deposed that he had paid Rs.200/- to appellant Jagdish Singh in February 2004. All the said witnesses had paid money to the appellants so that their accounts could be opened with the Society. The receipts proved on record by DW1 qua deposit of the money in the account of the witnesses show that the same were issued on 17.9.2004. PW 15 M.S. Rathi conducted an inquiry Crl. Appeal No. 2627-SB of 2009 5 against the appellants and he gave a report that the appellants had not issued receipts to the complainants after receiving money from them. Statements of the complainants were recorded. During inquiry statement of Bhim Chand, Sevadar, was also recorded by PW 15 and the said witness had stated that the appellants had agreed to repay Rs.1300/- to the complainants. In these circumstances, the learned trial Court rightly held that offence under Section 408 IPC was made out against the appellants. The reasons given by the trial Court while convicting the appellants are sound reasons. The trial Court has sentenced the appellants till the rising of the Court and to pay a fine of Rs.5,000/-. The said sentence cannot be said to be on the higher side. Hence, no ground for interference by this Court is made out. Dismissed. (SABINA) November 26, 2010 JUDGE Anand