HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No.295 OF 2009 ORDER: The revision is filed against the conviction of the accused in C.C.No.106 of 2001 on the file of the IX Additional Chief Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections 409 and 420 of the Indian Penal Code (for short, 'IPC'), which was confirmed by the Metropolitan Sessions Judge, Hyderabad in Criminal Appeal No.102 of 2008. 2. The case of the prosecution is that the revision petitioner was an employee in Andhra Pradesh Handicrafts Development Corporation Limited and he was entrusted with the deposit of some monies belonging to the Corporation to a tune of Rs.67,127.30 Ps., during the period February, 1999 to May, 1999 for a period of eight days but he did not remit the same and consequently, a complaint was lodged by PW.1 and the police after investigation filed charge sheet against the accused. 3. Before the lower Court, the accused pleaded not guilty and a charge under Section 406 IPC was initially framed and subsequently, charges under Sections 409 and 420 IPC were framed and witnesses were recalled. 4. On behalf of the prosecution, PWs.1 to 4 were examined and marked Exs.P.1 to P.15. After the evidence of the prosecution is over, the accused was questioned under Section 313 of the Criminal Procedure Code and no defence evidence was adduced. 5. After considering the evidence on record, the trial Court has convicted the accused for the offences punishable under Sections 409 and 420 IPC and sentenced to undergo rigorous imprisonment for a period of two years and pay fine of Rs.3,000/- for the offence under Section 409 IPC, in default of payment of fine, he shall undergo simple imprisonment for one month. Further he is convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs.2,000/- for the offence under Section 420 IPC, in default of payment of fine, he shall undergo Simple Imprisonment for one month and acquitted the accused for the offence under Section 406 IPC. The said sentence was confirmed by the appellate Court also. Hence the revision. 6. The points for consideration are: 1) Whether the accused was entrusted with the money and he misappropriated the same? 2) Whether the accused has committed any acts of cheating as alleged by the prosecution? 7. POINTS: According to the prosecution case, PW.1, who was complainant and also a Manager, deposed that the accused was entrusted with the remittance of the daily collections to Andhra Bank, Chikkadpally Branch from January, 1998 and it was found that during the period from February, 1999 to May, 1999 a sum of Rs.67,127.30 Ps., was not deposited and a complaint was given to the police. The accused is said to have given a letter Ex.P.4 admitting the non-remittance. An enquiry is said to have been conducted and Ex.P.5 is enquiry report and she also filed the statement of account Ex.P.6. In cross- examination, she stated that the accused may be an illiterate and there are no written instructions given to the accused to remit the cash but he was doing so earlier. She also admitted that Ex.P.8, which is the petty cash register, contains some corrections. She denied the suggestion that Exs.P.7 and P.8 were prepared to implicate the accused. She could not say as to who wrote Ex.P.4. She denied that Ex.P.4 was prepared at her instance. 8. The evidence of PW.2 is that he was working as an Accountant and the accused was an Attender in their Unit and he was entrusted with the remittance and the accused has not remitted the said amount during the period from February, 1999 to May, 1999 and he did not produce the challans and the accused claimed that he has kept those challans in one box and thereafter, the box was opened on 22.05.1999 and panchanama Ex.P.2 was conducted. There are no challans in that box. According to him, the accused, who sought for time did not repay the amount and according to him, Exs.P.7 and P.8 are petty cash registers and the accused acknowledged the amounts and Ex.P.9 is the bank remittance challan book and Exs.P.10 to P.14 are the counter foil receipts. Ex.P.4 statement was given by the accused. In cross-examination he stated that on Ex.P.3 there are no signatures of the accused and on Ex.P.4 the accused has signed admitting the liability and promising to pay the amount. According to him, everyday he used to take the approval from PW.1 about daily sales and he also admitted that there are some over-writings on Exs.P.7 and P.8. The evidence of PWs.3 and 4 is with regard to the investigation done in this case. 9. The learned counsel for the revision petitioner contended that from the evidence of PWs.1 and 2, there is any amount of doubt about Exs.P.7 and P.8 registers and Ex.P.4 statement was not given by the accused and both the Courts below have erred in relying upon the statement. In fact, as can be seen from the Ex.P.5 an enquiry was conducted and the explanation of the accused was also called for, for the charges and ultimately after the detailed enquiry on 16.11.1999 it was found that the revision petitioner was entrusted with the money and he did not remit the same. 10. The Enquiry Officer has not accepted the plea of the accused about his innocence. In fact, Ex.P.4 clearly goes to show that a memo was given to the revision petitioner on 01.06.1999 and the revision petitioner has admitted the non-remittance of the above amount but wanted time. It is very difficult to believe that PW.1 or PW.2 could have managed this Ex.P.4. The remittance could have been done only by any of the Attenders. It is not the plea of the revision petitioner that any other Attender was entrusted with the deposit job. The bank statement Ex.P.6 shows non-remittance of the amounts, which were entrusted to the revision petitioner, as shown in Ex.P.1. The over- writings in Exs.P.7 and P.8 will not in any way defeat the case of the prosecution since they do not show that there are manipulations to implicate the revision petitioner. 11. The lower Court has considered Exs.P.9 to P.14 and came to a conclusion that the entrustment of the amounts to the revision petitioner is true. Therefore, from the above material on record and also the finding of fact recorded by the Courts below, it can be held that the petitioner was entrusted with the remittance job and he did not remit the same. There is absolutely no motive for PW.1 and PW.2 to speak against the revision petitioner. 12. But, however, the learned counsel for the revision petitioner contends that the conviction for an offence under Section 420 IPC does not arise since there was no inducement to part with the money and on the other hand, it is a case of entrustment of the money, which is an offence falling under Section 409 IPC and the ingredients for both the offences are different and independent, I agree with the contention of the learned counsel for the revision petitioner. The facts and nature of the offences do not attract the offence under Section 420 IPC as there was no dishonest intention and an inducement to deliver the money. It is the specific case of the prosecution that the petitioner was entrusted with the money for the purpose of depositing and discharge of his duties as a public servant, consequently, the conviction under Section 420 IPC is set aside. 13. However, the learned counsel for the revision petitioner contended that the sentence of imprisonment of two years for the offence under Section 409 IPC is also excessive and taking into consideration the nature of the job of the petitioner and also the fact that he was also punished in the departmental enquiry, some lenience may be shown to the petitioner. Taking into consideration the above plea of the learned counsel for the petitioner, the sentence of imprisonment for the offence under Section 409 IPC is reduced to six months while enhancing the fine from Rs.3,000/- to Rs.5,000/-. Since the fine amount for the offence under Section 420 IPC was paid, there is no need for further deposit of the fine. 14. Consequently, the Criminal Revision Case is allowed in part. The conviction of the petitioner for the offence under Section 409 IPC is modified and he is sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000/-, which he already paid in the lower Court for the two offences. The conviction and sentence of the petitioner for the offence under Section 420 IPC is set aside. The petitioner will be entitled to set off the remand period already undergone. The lower court is directed to give warrant for apprehension of the petitioner to serve the sentence of imprisonment. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:22.11.2011 INL