IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.608 of 2010 ARUN KUMAR SHARMA, SON OF BISHWANATH SHARMA, RESIDENT OF VILLAGE- DHARAMPUR, POLICE STATION- VAISHALI, DISTRICT- VAISHALI. Versus THE STATE OF BIHAR For the petitioner : Mr. Kanhaiya Prasad Singh Sr. Advocate Mr. Ashutosh Kumar, Advocate. Mr. Chandra Mohan Jha, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ----------- 4 30.06.2010 Heard both sides. Petitioner is aggrieved by the judgment and order dated 27th January, 2010 passed by learned Addl. Sessions Judge-IV, Patna in Cr. Appeal no. 44 of 2007 whereby the appeal of the petitioner was considered and on a reappraisal of the evidence brought on record, it was held that prosecution has been able to prove the charge(s) under Sections 419, 420 and 120B of Indian Penal Code . Be it noted here that petitioner along with another co-accused namely Rajendra Singh @ Lalan Singh was/were put on trial for the charges punishable under these sections. Allegation against the petitioner was that he procured false, forged and fabricated Pension Payment Order (P.P.O.) allegedly issued from the Office of the Controller of Defence Accounts, Allahabad and on the strength whereof, a bill was prepared by an Assistant of Dumka Treasury namely Ashok Kumar which was passed by the Incharge of Dumka Treasury namely Tarkeshwar Dutta (P.W. 2). Consequently, a sum of Rs. 24,191.45 was illegally withdrawn from treasury. It appears from 2 the judgment of the Trial Court that co-accused Rajendra Singh pleaded guilty and his case was accordingly separated and dealt with. In order to prove the charge(s), the prosecution examined altogether 07 witnesses. Learned Trial Court on a consideration of the evidence brought on record found and held that the allegations/charges levelled against the petitioner stood proved beyond all reasonable doubts and he was accordingly sentenced to undergo R.I. for two (02) years each under Sections 419, 420 and 120B IPC. As noted above, the appeal of the petitioner failed. Learned lower Appellate Court on reappraisal of the evidence available on record, concurred with the judgment and order of sentence recorded by the learned Trial Court. While considering the case, this is what the learned Lower Appellate Court has observed: “P.W. 4 Prabhunath Pandey, Senior Accountant in C.D.A. pension office, Allahabad has stated in his evidence that the said P.P.O. was forged, fabricated and was never issued from his office. Further the evidence of P.W. 6 Kameshwar Sharma, the I.O. of the case shows that both the accused persons were never posted in the said Regiment vide para 7 of his evidence. In this way as per the prosecution allegation and materials available on the record it is apparent that both the accused persons were not the members of Assam Regiment nor any P.P.O. was issued from the office concerned and it was forged and fabricated documents used by them for drawing the money from Govt. treasury. Further the materials available on the record clearly shows that on the basis of forged P.P.O. bill was prepared and was passed and then after money was drawn by the accused-appellant.“ Learned counsel for the petitioner, while assailing the 3 judgments and orders, submits that no document worth the name was produced at the trial. It is next submitted that the occurrence had taken place in the year 1981 while the prosecution was lodged in the year 1983. Learned counsel further submits that both the courts below have committed serious error in not considering the applicability of Sections 360 and 361 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) which is mandatory. He relies on the judgment of the Apex Court rendered in the case of Chandreshwar Sharma versus State of Bihar reported in (2000) 9 S.C.C. 245. Learned A.P.P., on the other hand, supported the impugned order. It is submitted that there is concurrent finding(s) regarding guilt of the petitioner which is/are based on appraisal of the evidence brought on record by the prosecution. The approach of the courts below in appreciating the evidence available on record cannot be said to be perverse and/or patently illegal. I have considered the submissions advanced on behalf of the parties and perused the two judgments which have been impugned in the present case. Learned Trial Court has considered the entire evidence brought on record and has concluded that the P.P.O allegedly produced by the petitioner was subsequently found to be forged and fabricated as it was not found to have been issued from the said office at any point of time. Learned Lower Appellate Court reappraised the evidence on record and has rightly concluded that the evidence available 4 on record do establish the guilt of the petitioner. One aspect of the matter, however, needs to be considered. Occurrence had taken place in 1981. The F.I.R. in the case was lodged in 1983. The petitioner was made to undergo the rigours of trial for a period of 24 years when the initial order of conviction was recorded in the year 2007. Learned Trial Court has not found and recorded any murky past of the petitioner. It further appears from the judgment of the learned Trial Court that there has not been any consideration of the applicability or otherwise of Sections 360 and 361 of the Code. This Court finds from the materials on record that the petitioner acted in a pre-planned manner posed himself as a military personnel and ventured to obtain fake P.P.O. and thereby illegally withdrew the amount causing loss to the State Exchequer. His acts and the manner in which the occurrence was committed indicate the mind of the accused. It is further to be borne in mind that one of the co-accused(s) of the case has already pleaded guilty and has been convicted. This Court is not aware as to whether he was dealt with under Section 360 or 361 of the Code and released on furnishing bonds. On the basis of the materials available on record, I am, however, inclined to take a view that a lesser punishment shall meet the ends of justice. He was made to labour under the threat of being punished for over 24 years. Admittedly, from the record, it does not appear that he was previously convicted of any criminal charge. Fighting 5 litigation for such a long period/time definitely tells upon the mental and economical condition of a litigant which, in my view, is a relevant consideration while imposing sentence. Accordingly, the petitioner is hereby sentenced to undergo R.I. for one year under each head i.e. under Sections 419, 420 and 120B of the Indian Penal Code which shall run concurrently. With this modification in sentence, this application is dismissed. pkj ( Kishore K. Mandal, J. )