IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.09.2011 CORAM: THE HONOURABLE MR. JUSTICE C.T. SELVAM Crl.R.C.No. 565 of 2007 Velu ...Petitioner/Applicant/Accused. vs The State rep. by The Inspector of Police C.C.I.W., Vellore. ... Respondent/Respondent/Complainant. PRAYER: This Criminal Revision Petition is filed under Section 397 r/w 401 Cr.P.C., to call for the record of the order dated 26.02.2007 made in C.A. No. 31/2006 on the file of the Additional District and Sessions Judge (FTC), Vellore confirming the judgment dated 27.02.2006 made in C.C. No.65 of 2001 on the file of Judicial Magistrate No.2, Vellore and set aside the same thereby acquitting the petitioner. For Petitioner : Mr J. Saravana Vel For Respondent : Mr.P. Govindarajan, APP ORDER This revision petitioner was the first accused in case pending trial before the Judicial Magistrate No.II, Vellore in C.C. No.65 of 2001, wherein this petitioner and one another stood charged of offences u/s.409 of IPC . 2. The prosecution case was that the petitioner was the President of the Primary Agricultural Co-operative Bank, Vallipattu between 18.12.1996 and 24.11.1998. The second accused was the Secretary thereof between 10.09.1997 and 01.08.1997. The petitioner sold 757 empty gunny bags to PW-7 for a sum of Rs.8,274.50 and usurped the proceeds. The second accused aided the petitioner in such wrong doing. Complaints dated 05.08.1998 and 17.08.1998 were preferred by PWs 3 and 4, pursuant whereto enquiry was initiated by PW-1 under section 81 of the Tamil Nadu Cooperative Societies Act. FIR was registered in Crime No.1 of 2001 by the CCIW, Vellore. On completion of investigation, the petitioner and another were charged as afore-informed. Before the trial court, the prosecution examined https://hcservices.ecourts.gov.in/hcservices/ 9 witnesses and marked 16 exhibits. None were examined on behalf of the defendants nor any exhibits were marked. 3. The trial court entered a finding of conviction against this petitioner, while acquitting the other accused. It sentenced this petitioner to undergo six months Rigorous imprisonment and a fine of Rs.100/- in default three months rigorous imprisonment for offence u/s.409 of IPC. Against the conviction of the trial court, the petitioner moved an appeal in C.A. No. 31/2006, which came to be dismissed by Additional District and Sessions Judge (FTC), Vellore under judgment dated 26.02.2007. There against this revision. 4. Learned counsel for the petitioner submitted that to attract commission of offence u/s.409 of IPC against the petitioner, the prosecution primarily would have to establish entrustment of property [which allegedly had been wrongfully dealt with] to the petitioner/ accused. Alternatively, it would have to be shown that the petitioner had dominion over the property in one of the capacities envisaged u/s.409 of IPC. The admitted prosecution case was that PW-5 a Sales Assistant of the bank handed over the gunny bags to PW-6 under acknowledgement dated 03.07.1997 [Exh.P-7]. The same was recorded in Empty Gunny bag stock register, Exh.P-8. Exh.P- 13 is a letter signed by PW-6, acknowledging that 757 gunny bags were handed over to the purchaser PW-7. PW-7 had deposed to having received 757 gunny bags in keeping with Exh.P-13. The trial court had rightly rejected PW-6's contention of his signature having been forcibly obtained in Exh.P-13, since he has not made any complaint there regards to his higher authorities. A reading of the entire evidence would only show the possession of the gunny bags in the hands of PW-5, the handing over thereof to PW-6 and sale thereof to PW-7. The petitioner had no role whatsoever in such transaction and save a solitary line in the evidence of PW-7 that too, in cross, that he had handed over the sale proceeds to this petitioner, there was nothing to implicate him. PW-3 and 4 were former President of the Bank and members thereof, were inimically deposed towards him and therefore had falsely implicated him. Learned counsel submits that the prosecution had failed to prove its case against the petitioner and hence the courts below fell into error in convicting him. 5. Heard learned Additional Public Prosecutor on the above submissions. 6. This court finds substance in the submission of learned counsel for the petitioner. On a reading of the entire evidences in the case, we do not find any evidence whatsoever to inform the entrustment or dominion over the property which allegedly wrongfully was dealt with by the petitioner. In the absence thereof, no charge under section 409 of IPC can be sustained. Except the stray remark of PW-7, the purchaser of gunny bags, in the course of his cross examination that he had paid over the sale proceeds to this https://hcservices.ecourts.gov.in/hcservices/ petitioner, there is nothing to implicate him. The evidence of PW-7 also is to the effect that he came to know the name of the petitioner for the first time only on the date of his cross examination. It would be most risky and inappropriate to arrive at a finding of guilt on the stray utterance of PW-7. The evidence of PW-6 informs that he had initially refused to sign the acknowledgment Exh.P-7 dated 03.07.1997, evidencing delivery of the gunny bags to PW-7. Therein it had been noted that the gunny bags had been handed over to PW-7 upon the concurrence of the President/ this petitioner. He had signed the same upon the insistence of one Anbarasu, Secretary of the Bank and under threat of his losing employment if he refused to do so. 8. Taking into consideration the totality of the circumstances, this Court would allow the criminal revision petition. The petitioner would stand acquitted of all the charges made against him in C.C. No.65 of 2001 on the file of Judicial Magistrate No.2, Vellore. The fine amount if any paid, shall be refunded to the petitioner. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. avr To 1. The Inspector of Police C.C.I.W., Vellore. 2. The Judicial Magistrate No.2, Vellore. 3. The Chief Judicial Magistrate, Vellore. 4. The Public Prosecutor, High Court, Madras. 1 cc To Mr.J.Saravanavel, Advocate Sr 55913 Crl.R.C.No.565 of 2007 [co] gp/12.11. https://hcservices.ecourts.gov.in/hcservices/