IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.3376 of 2009 Date of Decision : December 13, 2010 Sanjiv Kumar ...... Petitioner VERSUS State of Punjab ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Jasbir Rattan, Advocate, for the petitioner. Mr.O.P. Dabla, Deputy Advocate General, Punjab. ***** A.N.JINDAL, J: This revision petition has arisen out of the judgment dated 19.12.2009, passed by Sessions Judge, Sangrur, dismissing the appeal of the petitioner-accused (herein referred as 'the accused') against the judgment dated 01.09.2006, passed by Sub Divisional Judicial Magistrate, Dhuri, convicting and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- under Section 406 IPC. The brief resume of facts is that during the year 1999-2000, M/s New Bharat Rice Mills, Dhuri was allotted 42400 bags, containing 27560 quintals of paddy for custom milling, which was received by the miller-accused on behalf of the firm. After milling, the accused was to provide 18280.54.800 quintals of rice to the Food Corporation of India in the account of Punjab State Civil Supplies Corporation (herein referred as 'PUNSUP') upto 28.02.2000. A team, nominated by the Head Office of PUNSUP, conducted a verification on 10.06.2000 and detected that there was a shortage of 18040 Criminal Revision No.3376 of 2009 2` bags of paddy. The accused assured to make good the loss and supply the resultant rice but despite the letters written on 02.06.2000 & 14.06.2000 and telegram on 27.06.2000, by the District Manager, PUNSUP, Sangrur, the accused failed to deliver the same. On 21.08.2000, again a physical verification was made and the paddy was found short to the same extent. Besides the aforesaid shortages, the accused was also found liable to account for the stock articles i.e. 298 wooden crates, 20 polythene tarpaulins and seven polythene covers. Since the accused Sanjiv Kumar was the proprietor of M/s New Bharat Rice Mills, therefore, he was challaned in the case for misappropriation of the aforesaid paddy and stock articles vide FIR No.261 dated 03.11.2000. During investigation, the Investigating Officer took nine documents into possession vide memo Ex.P15, recorded the statements of the witnesses and arrested the accused. Completion of investigation was followed by a report under Section 173 Cr.P.C. On finding a prima facie case against the accused under Section 406 IPC, he was charged accordingly, to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Santosh Kumar, Clerk, Office of Food and Supplies, Sangrur (PW1), Bimal Kumar, Accountant, Office of PUNSUP, Sangrur (PW2), Narinder Singh Bakshi, Inspector, Incharge PUNSUP, Dhuri (PW3), Manjit Singh, Deputy DM (Accountant), Patiala (PW4), O.P.Sharma, Field Officer, PUNSUP, Chandigarh (PW5), ASI Tarlochan Singh (PW6), Head Constable Avtar Singh NO.2110, Police Station Special Branch, Sangrur (PW7), ASI Mukhtiar Singh, E.O. Wing, Sangrur (PW8), Upinder Nath Sharma, District Criminal Revision No.3376 of 2009 3` Manager (PW9), Deep Chand, Field Officer, PUNSUP, since retired (PW10), Amarjit Singh, Inspector, PUNSUP, Barnala (PW11) and Sanjay Kumar, a partner of M/s Grewal Rice Mills (PW12). When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further pleaded that he was neither the partner nor proprietor of the firm and he also did not receive any such paddy. He pleaded that in view of the Arbitration Clause in the agreement, no offence of criminal breach of trust was made out. In defence, he examined Vikram Raj Singh Chauhan, Handwriting and Finger Prints Expert as DW1. The trial ended in conviction. Appeal, preferred by the accused also failed. Arguments heard. Record perused. First of all the question to be decided in this case is whether the paddy was entrusted to the accused and if so on what terms; whether proper physical verification was conducted in his presence before holding him liable for the said shortages; whether the articles handed over to a person under an agreement and securing the loss, while anticipating the breach of contract, are covered by Section 406 of the Indian Penal Code. In this regard, the evidence which has come on record are the receipts Ex.P6 and Ex.P7. Ex.P6 indicates that the accused received paddy to the tune of 42400 bags containing 27560 quintals of paddy for the crop year 1999-2000 besides 748 wooden crates, 15 polythene tarpaulins and seven full covers as would appear from the receipt dated 28.10.1999 copy Ex.P7 to M/s New Bharat Rice Mills. These receipts are duly signed by the accused. P.V. reports, copies Ex.P11 and Ex.P10 dated 10.6.2000 Criminal Revision No.3376 of 2009 4` and 21.8.2000 respectively and the telegram Ex.P12 to Ex.P14 also indicate that the accused did not supply the rice against the aforesaid bags to the Food Corporation of India. The agreement between the District Manager, Punjab State Civil Supplies, Sangur and M/s New Bharat Rice Mills was duly signed by the accused on behalf of M/s New Bharat Rice Mills. Again there is an affidavit Ex.P4 proved by the prosecution furnished by Sanjiv Kumar which reveals that he is the proprietor of M/s New Bharat Rice Mills, Dhuri. Again Sanjay Kumar (PW12) has also furnished the affidavit Ex.P5 clearing the position that he was the partner of M/s Grewal Rice Mills, Dhuri, then he leased out the rice sheller to M/s New Bharat Rice Mills from the period 1.9.1999 to 31.8.2000. Thus, Sanjiv Kumar being the proprietor of New Bharat Rice Mills, Dhuri having entered into an agreement with Punjab State Civil Supplies Corporation cannot wriggle out the admission that he had received the paddy on behalf of M/s New Bharat Rice Mills vide receipt Ex.P6 and the other articles vide receipt Ex.P7. Even Upinder Nath Sharma, District Manager while stepping in the witness box as PW9 has stated that the agreement Ex.P2 was signed by Sanjiv Kumar in his presence. His testimony stands corroborated by Deep Chand Field Officer, PUNSUP (PW10) and Amarjit Singh Inspector PUNSUP (PW11), who were also the signatories of the agreement. Similarly, Amarjit Singh (PW11), then In-charge PUNSUP, Dhuri also the signatory to the receipt dated 28.10.1999 is also the witness regarding the delivery of 42400 bags containing 27560 quintals of paddy supplied to M/s New Bharat Rice Mills. He states that the receipt was signed by the accused. It has also been established on the record that the accused has committed criminal breach of trust as he has misappropriated paddy weighing 18040 bags containing Criminal Revision No.3376 of 2009 5` 11726 quintals. The trial court has also duly brushed aside the argument advanced by the learned counsel that mere conducting the arbitration proceedings against the accused would not exonerate him for his complicity in the offence of breach of trust. The Apex Court in case Trisuns Chemical Industry vs. Rajesh Aggarwal (1999) 8 SCC 686 observed that merely because the act has civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to the arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Thus, while discussing the aforesaid judgment, the trial court was right in holding that even if the matter has been referred to the arbitration and the award has been passed, yet, the offence under Section 406 IPC is still made out against the accused. The trial court as well as the first appellate court have rightly discarded the opinion of Vikram Raj Singh Chauhan, Handwriting and Finger Prints Expert (DW1) who gave his report Ex.D1 so as to say that the disputed signatures of the accused appearing on the agreement copy Ex.P2, affidavit Ex.P4, receipts Ex.P6 and Ex.P7 do not tally with the standard signatures appearing on the power of attorney dated 2.5.2001, statement made before the court on 10.12.2005, bail bond dated 2.5.2001 and the specimen signature sheet dated 1.3.2006, for the reasons, first of all that the science of signatures and finger print is not a perfect science. The signatures some times could be changed and disguised intentionally and some times the signatures vary with the passage of time, age and the manner of signing. It is also pertinent to mention here that the signatures on the agreement, receipts Ex.P6 and P7, affidavit Ex.P4 were signed by the accused way back in he year 1999-2000, now it would not be appropriate Criminal Revision No.3376 of 2009 6` for the accused to say that these are not his signatures. May be the specimen signatures used by the Handwriting and Finger Prints Expert have intentionally been disguised by the accused, from the very beginning of the trial, therefore, the accused was supposed to have provided his admitted or accepted signatures for making a comparison of the same with the disputed signatures. Nevertheless, there is nothing to disbelieve the statement of Upinder Nath Sharma (PW9) who has categorically deposed that the accused had put his signatures on the agreement dated 4.10.1999 in his presence and he identified the same. Similarly, there is no reason to discard the testimony of Amarjit Singh Inspector the then In-charge PUNSUP, Dhuri (PW11) who has deposed that the accused had put his signatures on the receipt dated 28.10.1999 (Ex.P6) regarding the delivering of 42400 bags containing 27560 quintals of paddy. That apart, the accused cannot wriggle out of the finding recorded by the Arbitrator in his award dated 19.7.2005 regarding the shortage of 7773.55 quintals of the rice which had to be shelled from 11726 quintals of paddy contained in 18040 bags because the copy of the award has been produced by the accused himself and there is no evidence to show that the same has been got set aside by the accused. Faced with the situation, learned counsel for the petitioner has submitted that the family circumstances of the accused are in bad shape. His brother has suddenly expired. The arbitration award has already been passed against him. The accused is a first offender and is suffering from various ailments such as blood pressure, diabetic etc. He has big family to support. The matter is more or less is of civil nature, therefore, some leniency on the quantum of sentence could be shown to him. Criminal Revision No.3376 of 2009 7` Having pondered over the argument, it may be observed that the occurrence took place way back in the year 1999-2000; he has already suffered a lot of agony due to the protracted proceedings pending against him since then; no bad antecedents have come on record in order to dub him as habitual offender; he has already undergone some part of the substantive sentence; he is a first offender and has big family to support. The arbitration award as already passed against him is being executed against him. Under these peculiar circumstances of the case, it would be expedient in the interest of justice to extend some leniency on the quantum of sentence. Consequently, this petition is dismissed with the modification in the sentence which is reduced to that of already undergone by him without any alteration in the sentence of fine. December 13, 2010 (A.N. Jindal) deepak/mamta Judge