1 S.B.Cr.Revision Petition No.200/94 Banney Singh v. The State of Rajasthan. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R. BANNEY SINGH. V. THE STATE OF RAJASTHAN. S. B. CRIMINAL REVISION PETITION.200/94, against the judgment dated 26.5.94, passed by Shri G.L.Choudhary, RHJS, Additional District & Sessions Judge No.2, Jodhpur in Criminal Appeal No.36/94 by which he upheld the order dated 23.11.93, passed by Shri P.K. Mathur, RJS, Munsif & Judicial Magistrate, First Class, Pipar city, in Criminal Case No.100/83. DATE OF ORDER 01/10/2009 PRESENT HON'BLE MR. JUSTICE C. M. TOTLA Mr. B. N. Kalla, for Petitioner. Mr. Panney Singh, PP, for the State. BY THE COURT: Challenged is petitioner's conviction for the offence of Section 408 IPC as upheld in appeal by the Sessions Judge and awarded is sentenced to six months' simple imprisonment with fine of Rs.500/- . Heard learned counsel for the accused petitioner and learned Public Prosecutor for the State. Brief facts leading to petitioner's prosecution are that audit inspection while conducting audit of Gram Sewa Sahkari Samiti Ltd. Panchayat Samiti Badakuiya for period July, 78 to June, 79, found certain embezzlement so on FIR Ex.P25 by Executive Officer, Jodhpur, Central Co-operative Bank, case No.81/80, for the offences of Sections 408 and 420 IPC was registered and after investigation, charge-sheet submitted against three persons. According to charge-sheet and charge framed (1) 2 S.B.Cr.Revision Petition No.200/94 Banney Singh v. The State of Rajasthan. the then Manager Ram Chandra charged for embezzlement of Rs.14620/- on 7.7.78 and 9.7.78, (2) the then Mantri Ram Chandra along with Laxman Singh for embezzlement of Rs.14620/-, (3) petitioner Banney Singh charged for the embezzlement of Rs.288/-, making false and forged entries in cash book on 20.2.79, 16.4.79 and 18.4.79. As per particulars, (i) petitioner Banney Singh on 20.2.79 on the basis of last cash book, falsely recorded expenses of Rs.60/- in cash book, (ii) on 16.4.79, received amount Rs.60/- from Indian Fertilizer not accounted for cash book by making erroneous sum, (iii) on 17.4.79, in sums difference made of Rs.160/-. The learned Magistrate, finding guilty, convicted for the offence of Section 408 IPC and sentenced to six months' simple imprisonment with fine of Rs.500/-. In appeal, conviction and sentence is upheld. As is observed in the judgment of the trial Court one accused Laxman Singh expired. Learned counsel for the petitioner argued that (1) petitioner was simply a ministerial employee and main persons responsible for the conduct of the business were Laxman Singh and Ram Chandra, (2) no material to hold petitioner criminally liable, (3) if in the sum of many thousands an error of hundred or like happens then, it is nothing more than a genuine error, (4) petitioner deposited the amount with interest, (5) genuine clerical error cannot amount to embezzlement. Vehemently submitted for the petitioner is that incident is of the year, 1978 – petitioner remained in custody for many days – amount stands deposited with interest right at that time so sentence of undergone is sufficient. In support of contention, placed reliance on RCC, June, 1991 3 S.B.Cr.Revision Petition No.200/94 Banney Singh v. The State of Rajasthan. P.277, Ram Kishan v. State of Rajasthan. Learned Public Prosecutor, opposing, argued that ti is not a matter of simple arithmetical or clerical error and petitioner entrusted with the amount making wrong entries or omitting entries embezzled amount. Thoughtfully considering arguments, perused record and evidence. Auditor PW 1 deposes that on examining cash books and other ledgers, found that petitioner (i) received Rs.463/- from five members on 1.2.79, but totalled as Rs.455/- not accounted for Rs.8/- – receipts and books are exhibited , (ii) on 8.2.79, though no entry from 19.1.78 to 12.2.79 were but so entered of Rs.60/- in cash book on 20.2.79, (iii) on 16.4.79 from Delhi of Indian Fertilizer Corporation received was cheque of Rs.60/-, but in books balance shown as 13530.66, whereas should have been 13590.86, (iv) on 17.4.79, falsely entered cash balance less by Rs.160/- - entry being P59. No reason is to not to accept variations in cash book as described by the auditor PW 1. There is also other evidence about entries of cash book being in the hands of petitioner and entrustment. For sake of very argument, taking possibilities of all the genuine human error doubt if any only can for for 16.4.79 when instead of 13590.66 mentioned is 13530.66. For others, without receipt is proved and entries omitted all falsely made, the argument cannot stand. Thus, proved is that the petitioner being clerk of the society and entrusted with the money, he dishonestly used or disposed of (equivalent to use) and committed act. The petitioner is thus rightly convicted. Coming to sentence, found to have embezzled Rs.288/- - the incident is of the year, 1978 and the petitioner facing trial since 1983 who appears to have already suffered imprisonment for about a fortnight and also that amount stands deposited with interest in April, 1981. So now, in the opinion of the Court, it will suffice and meet ends of justice to award 4 S.B.Cr.Revision Petition No.200/94 Banney Singh v. The State of Rajasthan. sentence of imprisonment of period already undergone and fine Rs.500/- as imposed by courts below. Accordingly, revision petition is decided, conviction of petitioner for the offence of Section 408 IPC recorded by the Magisterial court vide judgment dated 23.11.93 and upheld by the Sessions Court vide judgment dated 26.5.94, is upheld but sentence awarded is reduced to period or imprisonment already undergone with fine of Rs.500/-, in default of payment of fine of Rs.500/- to undergo ten days' simple imprisonment. The petitioner is given time to deposit amount of fine by 30.11.09, failing which he will present himself before the trial Court to undergo sentence awarded in default of payment of fine as above and on doing so petitioner's bail bond shall stand discharged. (C. M. TOTLA), J. scd