IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.599 of 2002 Date of decision: 29th April, 2010 Shiv Kumar … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Baltej Singh Sidhu, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Shiv Kumar, who was named as an accused in case FIR No.172 dated 09.11.1994 registered at Police Station City Khanna under Sections 408, 420, 467, 468 and 471 IPC. The Court of Sub Divisional Judicial Magistrate, Khanna found the petitioner guilty of offence punishable under Section 408, 420, 467, 468 and 471 IPC and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.200/- under all the above said sections. It was further ordered that in default of payment of fine, the petitioner shall further undergo rigorous imprisonment for three months. The sentence of one year rigorous imprisonment awarded on all counts was ordered to run concurrently. Criminal Revision No.599 of 2002 Aggrieved against the same, petitioner had filed an appeal. The appellate Court below found no merit in the appeal and dismissed the same, while upholding his conviction and maintaining the sentence. FIR Ex.PW7/A, in the present case, was registered on the basis of a communication Ex.PW6/B sent by Project Manager of Indian Railway Construction Company Limited (hereinafter referred to as, ‘the Company’) on 21st October 1994. This communication was addressed to Senior Superintendent of Police, District Khanna, wherein it was stated that Shiv Kumar was employed as an Accounts-cum-Establishment Clerk in the Company. The Company was engaged in construction of four-lane National Highway No.1 on Contract No. IV between Khanna and Sirhind. On 18th October, 1994, the complainant S.Bali visited Khanna office, where he was told by Y.Martin, Computer Operator-cum-Typist and other staff members that the salary for the month of September, 1994 had not been paid. The complainant was surprised and he asked about Shiv Kumar, who was dealing with the accounts and found him absent from his duty. The complainant found that Shiv Kumar was not available on 17th October, 1994 also and he could not be found at his residence. The complainant went to draw his salary, but found that there was a balance of Rs.561.80 only in the account of the Company. It was learnt that Shiv Kumar had committed fraud of rupees three lakh approx. The table incorporated in the complaint showing the fraud committed by Shiv Kumar is reproduced below: Name of Bank: State Bank of Patiala, Amloh Sr. No. Cheque No. Date Amount initially filled by Mr.Shiv Kumar Amount withdrawn after tampering with the cheques by Mr.Shiv Kumar 1. 562098 11.06.1994 7000.00 67,000.00 2. 641308 04.07.1994 5000.00 45,000.00 2 Criminal Revision No.599 of 2002 3. 641317 25.07.1994 5000.00 45,000.00 4. 641322 17.08.1994 5000.00 25,000.00 5. 562076 30.04.1994 4843.00 54,843.00 A grievance was made that an embezzlement of Rs.3.00 lakh had been committed by the petitioner. Similarly regarding the account of the Company at State Bank of Patiala, Khanna branch, a forgery was committed and the amount was withdrawn. The table drawn in the complaint is reproduced below: Name of Bank: State Bank of Patiala, Khanna. Sr. No. Cheque No. Date Amount initially filled by Mr.Shiv Kumar Amount withdrawn after tampering with the cheques by Mr.Shiv Kumar 1. 84079 03.06.1994 6000.00 26,000.00 2. 84066 09.05.1994 5000.00 25,000.00 3. 84045 12.04.1994 5000.00 45,000.00 The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the petitioner. The Court of Sub Divisional Judicial Magistrate, Khanna on 25th March, 1996 charged the petitioner for offences punishable under Sections 408, 420, 467, 468 and 471 IPC. The first charge stated that the petitioner, being employed as an Accounts-cum-Establishment Clerk, on behalf of the Company, withdrew cash from the Bankers by forging the cheques and had thus, committed a criminal breach of trust amounting to Rs.2.90 lakh. These cheques, being valuable security, were forged, therefore, offence punishable under Section 408 IPC was made out. Since these cheques were used as genuine ones, offence under Section 471 IPC was also made out. On these grounds, charge under Sections 467, 468 and 420 IPC was also drawn against the petitioner. 3 Criminal Revision No.599 of 2002 The petitioner pleaded not guilty and claimed trial. Vinod Pathak PW-1 was posted as a Deputy Manager in State Bank of Patiala at Amloh. He proved the cheques Ex.P1 and Ex.P2, and the signatures of the petitioner on the back of the cheques as Ex.P3 and Ex.P4. C.D. Banger, Assistant Manager, State Bank of Patiala appeared as PW-2; Y.Martin, Computer Assistant of the Company as PW- 3; Ramesh Chander as PW-4; Ram Krishan as PW-5; Mukul Chaturbedi as PW-6, Inspector Ram Murti as PW-7; T.K. Arora, Assistant Manager, State Bank of Patiala, Amloh as PW-8; Manmohan Singh, Assistant Manager, State Bank of Patiala, Nabha as PW-9; SI Bachittar Singh as PW-10; HC Sarup Singh as PW-11 and Avtar Singh, Manager, State Bank of Patiala, Tarn Taran as PW-12. Thereafter, prosecution closed its evidence. Both the Courts below held the petitioner guilty of the offence on the basis of the testimonies of above said witnesses. Mr. Baltej Singh Sidhu, Advocate appearing for the petitioner, has drawn my attention to the cheques Ex.P1 and Ex.P2, and has stated that after the cheques were signed by the Project Manager of the Company, the words and figures could not be affixed later-on to inflate the amount of the cheques. Even if, this submission is accepted for the sake of arguments and the petitioner is absolved of the offences punishable under Sections 467, 468 and 471 IPC, the matter of fact remains that the cheques were drawn on the name of the petitioner. He had presented them before the Banker and received the amount after signing on the back side of the cheques. The Bank officials have categorically stated that the petitioner had appeared in the Bank along with the cheques and the amount was entrusted to him. The petitioner, being an official of the 4 Criminal Revision No.599 of 2002 Company, had to account for the amount received by him. Thus, entrustment of the amount to the petitioner, falling within the ambit of Section 408 IPC, is proved against the petitioner. He had also failed to account for this amount. At this stage, Mr. Sidhu has stated that the petitioner was employed in a public undertaking, thus, he was a public servant and charge under Section 409 IPC ought to be framed against him. This argument is to be rejected outrightly. In case, for the omission or commission on the part of the petitioner, offence under Section 409 IPC is made out, the same is an aggravated form of offence under Section 408 IPC. The petitioner cannot plead any prejudice that he should have been tried for a higher charge and convicted for a higher offence. Section 408 IPC envisages punishment to a servant and the petitioner, being posted as Accounts-cum-Establishment Clerk in the Company, was an official of the Company. Since the conviction and sentence awarded to the petitioner under Section 408 IPC is being affirmed by this Court, this Court need not to examine qua other offences, for which an argument has been raised and which had been rightly rejected by both the Courts below. Lastly, it has been submitted that the complainant Project Manager of the Company had not appeared in evidence to prove the contents of the complaint. After submission of the complaint, the matter was investigated, various officials of the Company and the Bankers have proved the charges against the petitioner. Non-examination of the complainant, per-se, is not fatal to the prosecution. I find no infirmity, patent illegality or irregularity in the judgments of both the courts below. Hence, there is no merit in the present revision petition and the same is hereby dismissed. Counsel for the petitioner, at this stage, has submitted that occurrence in the present case, had taken place in the year 1994. The 5 Criminal Revision No.599 of 2002 petitioner is in the corridors of the Court for the last about 16 years and has suffered mental pain and agony of a protracted trial. His son is aged about 19 years and is a student. It is further submitted that the father of the petitioner has expired and his mother is dependent upon him. During the pendency of the present petition, wife of the petitioner has also expired. These circumstances have been projected before this Court to say that protracted trial and the family condition of the petitioner should be construed as a mitigating circumstance, while considering sentence awarded to the petitioner. This Court, at the same time, also cannot become oblivious of the fact that the petitioner had embezzled a huge amount of Rs.2.90 lakh, which was a public money. However, to balance the aggravating and mitigating circumstances, this Court is of the opinion that ends of justice will be fully met in case the sentence awarded to the petitioner is reduced from one year to eight months rigorous imprisonment. [KANWALJIT SINGH AHLUWALIA] JUDGE April 29, 2010 rps 6