1 APEAL 658 of 664 of 91-267-268 of9 2 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEALNO.658 OF 1991 Prashant Anant Deshmukh, age:28 years,Occn. Nil, residing at: Anjurkar, Dhobi Ali, Mavli Mandal, Thane .. Appellant -versus The State of Maharashtra .. Respondent. WITH CRIMINAL APPEAL NO.664 OF 1991 1. Dungarsi Khetsi Gala 2. Narendra Dungari Gala, both residing at Wagle Estate, Thane .. Appellants versus The State of Maharashtra. .. Respondent WITH CRIMINAL APPEAL NO.267 OF 1992 The State of Maharashtra .. Appellant versus 1. Prashant Anant Deshmukh, age:28 years, Occn. Nil, residing at: Anjurkar Dhobi Ali Malvi Mandal, Thane, 2. Dungarsi Khetsi Gala age: 47 ors. Occn. Trade residing at Wagle Estate, Thane 2 APEAL 658 of 664 of 91-267-268 of9 2 3. Mr. Narendra Dungarsi Gala, age: 27,Occn.Trade, residing at Wagle Estate,Thane .. Respondents. CRIMINAL APPEAL NO.268 OF 1992 The State of Maharashtra .. Appellant versus 1. Prashant Anant Deshmukh, age:28 years, Occn. Nil, residing at: Anjurkar Dhobi Ali Malvi Mandal, Thane, 2. Dungarsi Khetsi Gala age: 47 ors. Occn. Trade residing at Wagle Estate, Thane 3. Mr. Narendra Dungarsi Gala, age: 27,Occn.Trade, residing at Wagle Estate,Thane .. Respondents. Mr. Prashant Patil i/b Mr. K.S. Patil, for the Appellant in Appeal No.658 of 1991 and for Respondent No.1 in Appeal Nos 267 and 268 of 1992. Mr. Prakash Naik alongwith Mr. Manish Jagani, with Mr. M.R. Menon, for Appellant in Appeal No.664 of 1991 and for Respondent Nos 2 and 3 in Appeal Nos l267 and 268 of 1992. Mrs. G. P. Mulekar, for the Respondent State in Appeal Nos 658 of 1991 and 664 of of 1991 and Appellant State in Appeal Nos 267 and 268 of 1992. CORAM: R.C. CHAVAN, J. DATED: 24th March, 2011 Common Judgment 1. Criminal Appeal Nos 658 of 1991 and 664 of 1991 are filed by the convicts questioning their conviction for the offence punishable under section 7 of the Essential 3 APEAL 658 of 664 of 91-267-268 of9 2 Commodities Act, 1955 and sentence of R.I for a period of 3 months and fine of Rs.1,000/- or in default further R.I. for a period of one month, imposed by the learned Special Judge (Essential Commodities Act), Thane, on conclusion of Special Case NO.26 of 1987. 2. Criminal Appeal Nos 267 of 1992 and 268 of 1992, have been filed by the State, questioning the leniency shown by the learned Special Judge, in awarding minimum sentence of R.I. for three months only and also recording acquittal of all the accused persons for the offences punishable under Sections 408 and 465 of the Indian Penal Code. 3. All these appeals are being disposed of by this common judgment. The convicts are referred to as “accused” by their numbers in the trial Court and State which is appellant would be referred to as the “prosecution”. 4. Facts in the context of which these appeals arise are as under:- Rationing Inspector, Narayan Rama Chavan, had some doubts about the activities of fair shop No.41/F/15, allotted to accused No.1- Prashant Anant Deshmukh, which was being inspected by him alongwith Mr. Baviskar. He examined the ration cards, cash memos and the sales effected in the said shop. He found that the cash memos issued to the card holders were different than the counter- foils maintained by the shop keeper. The shop keeper had 4 APEAL 658 of 664 of 91-267-268 of9 2 charged 19 ps per litre more for sale of kerosene to the card holders and had also shown some quantities of rice, sugar palm oil being sold. When in fact no such sales were appearing in the cash memos, issued to the card holders. After elaborately making an enquiry, he gave report at the police Station, Rabale on 5th August, 1986 on which an offence was registered. Police conducted investigation, secured the cash memos, ration cards and other relevant documents for the purpose of investigation, recorded statement of witnesses and on completion of investigation sent chargesheet to the Court of Special Judge at Thane. 5. The learned Special Judge charged three accused persons, who had been chargesheeted before him of offences punishable under Sections 408, 465 of the Indian Penal Code and section 7 of the Essential Commodities Act, 1955, on account of violation of various orders passed under the said Act. The three accused charged were the allotee of the shop Prashant Anant Deshmukh, one Dungarsi Khetsi Gala, a partner of Prashant Anant Deshmukh and Narendra Dungarsi Gala, a Salesman in the shop. All the three accused pleaded not guilty to the charge. Hence they were put on trial at which prosecution examined as many as 68 witnesses in its attempt to bring home the guilt of the accused persons. 6. After considering the prosecution evidence in the light of defence of denial raised by the accused persons, 5 APEAL 658 of 664 of 91-267-268 of9 2 learned Special Judge acquitted them of the offences punishable under Sections 408 and 465 of the Indian Penal Code, but convicted and sentenced them for the offence punishable under Section 7 of the Essential Commodities Act and sentenced them to suffer R.I. for three months with fine of Rs.1,000/- each or in default to suffer R.I. for further period of one month. 7. Being aggrieved the convicts preferred appeal Nos 658 and 664 of 1991 and State has preferred Appeal Nos 267 and 268 of 1992. 8. Accused No.2 Dungarsi Khetsi Gala, died during the pendency of the appeal and therefore, appeal as far Dungarsi is concerned abates. 9. I have heard learned counsel for the convicts and learned Additional Public Prosecutor for the State. With the help of learned counsel, I have gone through the entire record. 10. Learned counsel for the accused No.1 Prashant Anant Deshmukh, submits that Prashant Anant Deshmukh had taken Dungari Khetsi Gala, as a partner specifically in order to run the shop as Prashant himself was not running shop since he was suffering Tuberculosis. Learned counsel made available for my perusal the license issued by the Authority, whereby he was allowed to induct partner. This shows that the Deputy Controller of Rationing,Thane had passed order 6 APEAL 658 of 664 of 91-267-268 of9 2 stating that the allottee of the shop keeper Prashant Deshmukh, had expressed that due to his ill health, he be permitted to induct a new partner and new partner Mr. Dungari Gala was allowed to join. Apart from this document, evidence of none of the witnesses on record shows that the accused No.1 Prashant Ananta Deshmukh was actually conducting business of the said shop. Learned counsel for the accused No.1 submitted that in view of the provisions of Section 10 of the Essential Commodities Act, only a partner who was responsible for carrying on the business and was during the relevant time incharge of the business could be held guilty. For this purpose learned counsel for accused No.1 placed reliance on the judgment in case of Sham Sundar - vs- State of Haryana, reported in A.I.R. 1989, SC page 1. In view of this and in the absence of any evidence to show that Prashant Ananta Deshmukh was conducting business or associated with actual sale activities in the ration shop, his conviction for the offence punishable under Section 7 of the Essential Commodities Act, recorded by the learned Special Judge, would have to be set aside and Criminal Appeal No.658 of 1991 would have to be allowed. 11. This takes me to the question of complicity of accused Narendra Gala in the commission of offence punishable under Section 7 of the Essential Commodities Act. The breaches which Narendra Gala is alleged to have 7 APEAL 658 of 664 of 91-267-268 of9 2 committed, are shortage of 60 kgs of rice after the sale of 879 kgs. excess of 4 kgs, in the rice, called Parimal through the sale was only 6 kgs, shortage of 4 kgs in the sale of 100 kgs of sugar, shortage of 4 kgs in the sale of 77 kgs of loose palm oil. Narendra had also shown bogus sale of certain commodities to some ration card holders. The maximum selling price of kerosene was 1.90 ps per litre. However he sold 10 litres of kerosene for Rs.21.80 as against price which was Rs.19.90 for 10 litres. He had further shown bogus sale of 4 Kg rice to Vishnu Madhavi, 2 Kg rice to Kesarinath Madhavi and thereby Narendra was alleged to have contravened clause 6 of the Bombay Rationing Area Scheduled Commodities (Regulation of Distribution) Order, 1986, Clause 18(3)(d) and (e) of the Maharashtra Food Grains Rationing (Second) Regulations, 1966 read with clause 7 of the Bombay Rationing Area Scheduled Commodities (Regulation of Distribution) Order , 1986. 12. Number of ration card holders had been examined by the prosecution to prove cash memoranda issued to them and to state as to what commodities were purchased by them. The prosecution also examined panchas at the seizure of documents, as also Narayan Chavan, who was Rationing Inspector, Khanderao Baviskar, the Rationing Officer and P.S.I. Madhav Jagtap, who conducted investigation. Learned Judge had relied on the evidence of P.W.1- Vivekanand Patil, 8 APEAL 658 of 664 of 91-267-268 of9 2 P.W.5, Dattaram Hira Patil, P.W.8, Ramesh Patil, P.W.22, Ashok Dodamani, P.W.29-Gangaram Naik, P.W.35 Jagatnarayan, P.W. 45- Babibai Naik, etc, who had told about the purchases made by them and the payment made for such purchases. They have proved the ration cards issued to them, which had been seized, as also the cash memos, which were issued to them. These cash memos were tallied by the Rationing Inspector P.W.6 Narayan Chavan, with the counterfoils. cash memos, maintained by the shop keeper and it was found that the cash memos issued to the card holders did not tally with the counter foils of cash memos. As far as kerosene is concerned price recovered is shown as Rs.21.80, as against Rs. 19.90 permissible which was reflected in the counter foils. Thus, there is absolutely no doubt that the shop keeper had shown some quantities of commodities meant for public distribution in the ration shop to have been sold without actually selling them and also consistently charged them more for kerosene. The total amount so misappropriated was calculated at Rs. 11,111.77, which has been recovered from accused No.2 Dungarsingh Gala. Therefore, as far as breach of orders issued under the Essential Commissions Act is concerned, it has to be held to have been proved as rightly concluded by the learned trial Court. 13. As already observed, allottee of the shop Prashant Deshmukh was not actually looking after the business and 9 APEAL 658 of 664 of 91-267-268 of9 2 therefore, would not be responsible for these lapses. 14. Learned counsel for the accused Narendra Gala submitted that Narendra was mere servant in the shop and had nothing to do with the amounts charged from the customers or quantities delivered to the customers. As a servant he was bound to follow the instructions of the master. Learned counsel submitted that the provisions of section 10 of the Essential Commodities Act, would warrant conviction only of person who is incharge of the business and responsible for conduct of business, who would be deemed to be guilty. Narendra was mere servant, he could not be said to be person responsible. He also submitted that under the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975, “fair price shop” is responsible for acts of commission and omission by partners, agents, servants and other persons, who are allowed to work in the shop and therefore, he submitted that Narendra, who was servant, could not be personally liable, but the shop itself would be liable for the acts of Narendra. 15. “Fair price shop”, has been defined as person incharge of a shop authorised under the provisions of clause 3 and therefore, if Narendra was a person incharge engaged by partners, it would not be possible for him to escape the responsibility. Therefore, Narendra himself has been rightly convicted by the learned Special Judge for the offence 10 APEAL 658 of 664 of 91-267-268 of9 2 punishable under section 7 of the Essential Commodities Act. 16. Learned counsel for the accused next submitted that the lapses in question had occurred in the year 1985 i.e about 26 years ago. Shop keeper has already lost his shop. His license has been cancelled. Appellant Narendra (who is incidentally son of accused Dungarsi in addition to being Salesman) is now settled in his life and has marriageable children and therefore, sending him back to prison now would be improper. He submitted that accused Narendra Gala may be given benefits of section 360 of Criminal Procedure Code or the section 4 of the Probation of Offenders Act. For this purpose, reliance is placed on two judgments of this Court. In State of Maharashtra versus Ushatai Purushottam Kotalwar and anr reported in 2011(1) Bom C.R. (Cri) 630 a learned Single Judge of this Court, sitting at Aurangabad Bench considering appeal against conviction under the Essential Commodities Act and release of offender under Section 360 of the Criminal Procedure Code. In that context this Court held that no interference was called for. I am afraid that provisions of Section 19 of the Probation of Offenders Act. 1958 were not brought to notice of this Court which mandate that provisions of Section 562 of the old Code of Criminal Procedure, corresponding section 360 of New Code shall cease to apply to the States or parts thereof in which Probation of Offenders Act is brought into force. As the 11 APEAL 658 of 664 of 91-267-268 of9 2 Probation of Offenders Act, applies to the State of Maharashtra, provisions of section 360 of Code of Criminal Procedure Code do not apply and therefore, there was no question of granting any benefit to accused under the provisions of section 360 of the Criminal Procedure Code. The judgment may be said to have been rendered per incuriam. 17. In case of Kaluram Nivrutti Tambe -vs- State of Maharashtra, (2007)(1), Mh. L. J. (Cri) 543, this Court was considering grant of benefit of the provisions of Probation of Offenders Act, to accused who was convicted for the offence punishable under sections 324 and 326 of the Indian Penal Code. 18. The learned Additional Public Prosecutor submitted that State has in fact preferred appeal against lenient sentence awarded to Narendra, since considering the nature of allegations made, learned Special Judge was not justified in imposing sentence of R.I. for only for three months. She submitted that the offences in which innocent consumers were duped, should have attracted some severe punishment. She also submitted that the very purpose of said prescribed minimum punishment for the offences would be frustrated if the courts were to release the offenders by giving benefit of Probation of Offendes Act. Therefore, according to her, rather than considering the accused Narendra for any leniency in respect of lapses though 26 years old, punishment may be 12 APEAL 658 of 664 of 91-267-268 of9 2 enhanced to at least R. I. one year. 19. I have carefully considered the rival contentions, There could be no doubt that in the offence of this type, showing leniency would negate the stringent provision of law, nugget. But it does not follow that stringent punishment of imprisonment would be called for in every such case. Question of sentence has also to be looked into from the point of delay in serving just deserts. Due to delay of the legal system, the appellant is now sought to be sent to prison about 20 years after conviction was recorded. If at this point of time, when the as learned counsel for Narendra submits that his children are of marriageable age, he is sent to prison, not only his life but life of his children would be devastated. Therefore, considering the fact that he is living under the shadow of sentence for last 20 years, it would not appropriate to send him back to the prison now. Learned counsel for the accused Narendra points out that Narendra was arrested on 7th August, 1986 and was remanded to police custody till 11th August, 1986 and was bailed out after being taken in Magisterial custody. Thus he was in jail for about 5 days. 20. Learned APP submits that this is ridiculously small period and therefore, accused Narendra may not be let off, with the period already undergone. As already pointed out appeal is being decided 20 years after conviction in respect of his delinquency committed 26 years ago. Therefore sending 13 APEAL 658 of 664 of 91-267-268 of9 2 him again to jail would be grossly unjust. Smaller sentence of imprisonment could be compensated by suitably enhancing amount of fine. In view of this, in my view, sentence Simple Imprisonment for the period of five days which the accused Narendra has already undergone, with enhanced fine of Rs. 1,00,000/- or in default R.I. for six months would be adequate to meet the ends of justice. 21. Criminal Appeal NO.664 of 1991 and Criminal Appeal by the State bearing Nos 267 of 1992, are disposed accordingly. 22. This leaves to Appeal No.268 of 1992, whereby State seeks reversal of acquittal of the accused persons for the offences punishable under Sections 408 and 465 of the Indian Penal Code. The learned Additional Public Prosecutor submits that in this case there is misappropriation of the goods entrusted and meant for public distribution through Public Distribution System. Therefore, the learned Special Judge should have held the accused persons guilty of offences under section 408 of the Indian Penal Code. She also submitted that the cash memoranda issued to the customers when tallied with the counter foils clearly show that there is forgery. She submitted that with naked eyes one can see that this forgery is committed by the accused Narendra Gala and therefore, the learned Judge should have convicted the accused of the offence punishable under Section 465 of the 14 APEAL 658 of 664 of 91-267-268 of9 2 Indian Penal Code as well. 23. As rightly pointed out by the learned counsel for the accused interference in acquittal recorded by the learned Trial Court would be warranted only if it is shown that the view taken by the learned Judge is perverse. In this case, Prashant Anant Deshmukh cannot be held guilty because he had already been permitted to induct partner for conducting business because of his ill health. There is nothing to show that the entrustment of goods has been made by State to the accused who is before me and if there is any entrustment that would be by his master, since he is said to be servant. He is not shown to have breached the trust of his master, since his master was also tried at the same trial. Therefore, there would be no question of Narendra Gala being held guilty for the offence punishable under Section 408 of the Indian Penal Code. 24. As far as section 465 of the Indian Penal Code is concerned, though the learned APP submits that by naked eyes, without aid of any instrument one can make out that the counter foils are in the same hand as the cash memos issued. It does not follow that they are in the hand writing of Narendra Gala, since none of the witness say that they saw Narendra Gala writing any cash memo in their presence. Perusal of the hand writing would be permissible provided there is some admitted writing or writing which is proved to 15 APEAL 658 of 664 of 91-267-268 of9 2 be in the handwriting of the person concerned. In absence of such writing, it cannot be said that the offence of forgery was proved beyond pale of reasonable doubt against any of the accused persons. 25. Learned counsel for the accused points out that in this case hand writing experts opinion was called, but was unhelpful to the prosecution. In view of this it cannot be said that the view taken by the learned Judge was perverse or untenable calling for any interference by this Court. 26. In view of foregoing reasons Criminal Appeal Nos 267 and 268 of 1992 are dismissed. 27. Criminal Appeal No.658 of 1991 is allowed. The conviction of Prashant Anant Deshmukh for the offence under section 7 of the Essential Commodities Act and sentence imposed upon him is set aside and he is acquitted of the said offence. 28. Criminal Appeal No.664 of 1991, is partly allowed. The conviction imposed upon Narendra Gala for the offence punishable under Section 7 of the Indian Penal Code is maintained. Sentence, however, is altered to that of S.I. for five days which he had already undergone with fine of Rs. 1,00,000/- or in in default R.I. for further six months. 29. If the appellant Narendra Gala does not deposit the deficit fine amount within a period of four weeks of the judgment being available on the High Court website, the 16 APEAL 658 of 664 of 91-267-268 of9 2 learned Special Judge (Essential Commodities Act), Thane shall take necessary steps to have the appellant Narendra Gala arrested and committed to serve sentence in default or to recover the fine. (R. C. CHAVAN, J.)