Criminal Revision No.388 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.388 of 2004 Date of Decision 12.10.2010 Kailash Chand ...... Petitioner VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.K.K.Aggarwal, Senior Advocate with Mr.R.K.Agnihotri, Advocate, for the petitioner. Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: Rigorous imprisonment for three years and a fine of Rs.1,000/- each under Sections 409 and 468 IPC and rigorous imprisonment for two years and a fine of Rs.1,000/- under Section 471 IPC have been awarded to the petitioner-accused (herein referred as 'the accused') by the Court of Judicial Magistrate Ist Class, Narnaul vide judgment dated 23/24.11.2000. The appeal, preferred by him, was dismissed with the modification in the sentence while reducing the same from three years to one year under Sections 409 and 468 IPC and two years to one year under Section 471 IPC. The accused was a Branch Post Master. The case was registered against him on a complaint forwarded by Bahadur Singh, Sub Divisional Inspector (Post Office), Narnaul to the effect that during his posting as Branch Post Master, Koriawas, he forged the signatures of Sultan Singh on 21.11.1985 to whom the amount of Rs.800/- pertaining to money Criminal Revision No.388 of 2004 2 order sent by his son, was to be paid. Similarly, one Satpal son of Rewati Ram entrusted a sum of Rs.300/- to the accused on 26.12.1985 for depositing into his account. Though, he made entry regarding the deposit of said amount in the pass-book of Satpal but neither he made any entry with regard to deposit of the same in post office record nor accounted for in the Post Office Account. In the same manner, he took a sum of Rs.1100/- from Ram Singh and made entry in his pass book but did not deposit the said amount in the post office. On the basis of this complaint, case was registered against the accused and investigated. On completion of investigation, challan against him was presented. The accused was charged for the aforesaid offences to which he pleaded not guilty and opted to contest. The trial ended in conviction. The appeal, preferred by him, was also dismissed. Arguments, as advanced by learned counsel for the petitioner- accused as well as Mr.J.S.Rattu, Deputy Advocate General, Haryana, heard and record perused. It is apparently proved on record that the accused misappropriated a sum of Rs.1100/-. However, the misappropriation qua the remaining amount of Rs.1100/- was to be proved by Ram Singh but he has not stepped into the witness box. However, Sultan Singh, while appearing in the witness box as PW2, has categorically stated that his son Rama Nand had sent money to him worth Rs.800/- but the accused did not pay the said amount while denying his signatures over the payment. He has stated that the money has been misappropriated by the accused. No cross- examination was conducted on the statement of this witness, therefore, the Criminal Revision No.388 of 2004 3 allegations, as levelled by Sultan Singh (PW2) would be treated as accepted by the accused. Complainant Bahadur Singh (PW4) has also accepted the issuing of the letter describing the forgery and cheating made by the accused. He has also proved the money-order form Ex.PW4/B purported to have been signed by Sultan Singh (PW4), acknowledging the receipt of the money. Entrustment of the amount of Rs.800/- pertaining to money order No.3507 dated 11.11.1985 has been proved from the statement of Bahadur Singh (PW4). The accused has also admitted the receipt of the money order before the Inquiry Officer. No evidence has been led in order to establish if the said money order amount was paid to Sultan Singh. This non-payment to Sultan Singh finds corroboration from the testimony of Gulshan Rai, Assistant Directgor, FSL, Madhuban, who opined vide report Ex.PW9/F. As regards the embezzlement of Rs.300/-, Sat Pal has categorically stated that on 26.12.1985, he had paid Rs.300/- to the accused for depositing in his account. At that time, the appellant had made entry in the pass book Ex.PW3/A but he had not deposited the said amount in the post office record. No cross-examination was conducted on this witness regarding the depositing of Rs.300/- in the post office account, as such, the said allegations would be treated as accepted by the accused. Since the powers of this Court at this revisional stage are very limited in nature, therefore, I need not delve deep into the re-appreciation of evidence at this stage. No such illegality much less irregularity has been pointed out so as to dub the judgment as perverse or illegal. The other argument, advanced by the counsel for the accused is that the accused, being posted as Branch Post Master, was a public servant at the time of alleged commission of crime, therefore, it was obligatory on Criminal Revision No.388 of 2004 4 the part of the prosecution to get sanction before prosecuting the accused. Though, the prosecution has examined Buta Singh, Senior Superintendent, Post Office Division, Gurgaon, in order to prove the sanction letter Ex.PW1/B for launching prosecution yet the letter Ex.PW1/B having been passed without application of mind, cannot be said to be valid sanction, therefore, the prosecution stands vitiated. Having heard the rival contentions, no doubt, the sanction authority has not discussed the statics on the basis of which the sanction was accorded for launching the prosecution against the accused but it would be significant to mention here that the accused did not raise this objection during the trial as well as at the appellate stage, as such he is estopped to raise this plea of defective sanction at this revisional stage. Even otherwise, the act of embezzlement is not in any way connected with the duties of public servants so as to attract the provisions under Section 197 Cr.P.C. The Apex Court in case Bholu Ram versus State of Punjab and another 2008 (4) RCR (Criminal) 187 has observed as under:- “We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official duty' (vide Prakash Singh Badal v. State of Punjab, 2007 (1) RCR (Criminal) 1 : 2007 (1) RAJ 71 : (2007) 1 SCC 1).” Similar view was taken in case Gian Chand versus State of Punjab 2008 (4) RCR (Criminal) 437. In order to attract the provisions of Section 197 Cr.P.C., it has to be held that there is a reasonable nexus between the act done and the duties of public servant. A criminal act done by a public servant cannot be Criminal Revision No.388 of 2004 5 said to form part of his duties. Apex Court in case Choudhury Parveen Sultana versus State of West Bengal and another 2009 (1) RCR (Criminal) 765 observed that public servant can face public prosecution without prior sanction of the appropriate authority. All acts done by a public servant in the purported discharge of his official duties cannot be brought under the protective umbrella of Section 197 Cr.P.C. There can be cases of misuse and abuse of powers vested in a public servant which can never be a part of the official duties. The aforesaid judgment was followed in case Balraj Singh versus State of Rajasthan and another 2009 (2) RCR (Criminal) 551. It would be needless to refer the various judgments delivered by the Apex Court as well as our High Courts, what it would be suffice to say that the act of the accused in misappropriating the amount cannot be considered to be an act done by him in discharge of his duties, therefore, no sanction was required. No other argument has been raised. For the aforesaid reasons, this petition, being devoid of any merit, is dismissed. (A.N.Jindal) Judge 12.10.2010 mamta-II