IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.788-SB of 1999 Date of Decision : September 07, 2010 Yogesh Kumar ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Dhirinder Chopra, Advocate for the appellant. Mr. P.S. Sidhu, Additional A.G., Punjab T.P.S. MANN, J. The appellant, alongwithJarnail Singh, was tried for the offences under Sections 409/120-B IPC and Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act (for short ‘the Act’). Vide impugned judgment and order dated 11.8.1999 passed by Special Judge, Patiala, Jarnail Singh, co-accused of the appellant, was acquitted of all the charges against him whereas the appellant was convicted under Section 409 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two months. However, the appellant was acquitted of the charges under Section 120-B IPC and Section 13(1)(c) read with Section 13(2) of the Act. According to the prosecution, on 29.10.1988, Inspector Parma Nand sent ruqa to the SHO, Police Station Kotwali, Patiala for registration of the case, on the basis of Criminal Appeal No.788-SB of 1999 -2- which FIR No. 188 dated 29.10.1988 was registered against the appellant at Police Station Kotwali, Patiala. It was alleged in the ruqa that he had come to know from reliable sources that accused Jarnail Singh remained posted as Depot Manager, PEPSU Road Transport Corporation (for short ‘P.R.T.C.’), Patiala from 6.8.1980 to 9.9.1982 and 14.9.1984 to 16.9.1986 and retired on 31.12.1986. Appellant- Yogesh Kumar, Ticket Stock Verification Clerk, P.R.T.C. also remained posted there. The appellant and Jarnail Singh in connivance with each other, misappropriated a sum of Rs.69,961.67ps. and caused wrongful loss to the P.R.T.C. and wrongful gain to themselves. Jarnail Singh, Depot Manager, while acting as Drawing and Disbursing Officer violated the office orders and instructions issued by the P.R.T.C. and connived with the appellant to misappropriate the funds of the P.R.T.C. During the course of investigation, the record was taken into possession. It was found that Jarnail Singh, Depot Manager, allowed the advance worth Rs.1,22,250/- to the appellant for the repair of vehicles and the appellant got adjusted a sum of Rs.67,848.58ps. only. Out of the chit advance worth Rs.22,050/-, the appellant got adjusted only Rs.400/- and the remaining amount of Rs.21,650/- remained to be adjusted. In all, a sum of Rs.69,961.67ps. was embezzled by the appellant in connivance with Jarnail Singh, Depot Manager. The appellant and his co-accused Jarnail Singh were arrested. Upon completion of investigation, final report under Section 173 Cr.P.C. was submitted in the Court of Criminal Appeal No.788-SB of 1999 -3- Special Judge where charges under Sections 120-B IPC and 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act were framed against the appellant and his co- accused Jarnail Singh. The appellant was also charge- sheeted under Section 409 IPC. The appellant and his co- accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Rasila Ram, Clerk, PW2 Nem Chand, Cashier, PW3 Sat Parkash Sharma, Junior Assistant, PW4 Mohan Lal, Clerk, PW5 Rattan LalVerma, Accounts Officer and PW6 Inspector Parma Nand. When examined under Section 313 Cr.P.C., the appellant and his co-accused claimed themselves to be innocent. The appellant submitted that he was falsely implicated in this case at the instance of Rattan LalVerma, who was having enmity with Jarnail Singh, his co-accused. The payment was made to him for the purpose of spare parts of buses for local and outside purchases. He submitted the bills of all the amounts from time to time and nothing remained to be paid. P.R.T.C. filed a suit for recovery against him which was dismissed on 15.10.1995 by Sub Judge 1st Class, Patiala. The appeal filed by the P.R.T.C. was also dismissed on 4.12.1996 by the Court of learned District Judge, Patiala observing that he did not embezzle any amount of the P.R.T.C. In defence, the appellant examined DW1 R.K. Kataria. Criminal Appeal No.788-SB of 1999 -4- After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court held that the prosecution had failed to prove the charges under Sections 120-B IPC, 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act against the appellant and his co-accused Jarnail Singh and, accordingly, acquitted them of the said charges. However, it believed the prosecution version in so far as charge under Section 409 IPC was concerned and convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellant has submitted that the appellant had rendered the accounts of all advances made to him. Therefore, he could not be held liable for committing an offence under Section 409 IPC. However, on perusal of the evidence, this Court is of the considered view that the appellant committed criminal breach of trust as payment of Rs.1,22,250/- was made to him. Out of which, he got adjusted only a sum of Rs.67,848.58ps. A sum of Rs.54,401.42ps. was neither adjusted nor accounted for by him. In this regard, there are the testimonies of PW1 Rasila Ram, PW2 Nem Chand, Cashier and PW5 Rattan Lal Verma, Accounts Officer of the P.R.T.C. PW1 Rasila Ram deposed that he was working as a Clerk with P.R.T.C. and dealing with the adjustments of the bills,Jarnail Singh accused was working as a Depot Manager, whereas the appellant working as a Ticket Stock Verification Clerk. He brought on record the details of the documents demanded by him which were Criminal Appeal No.788-SB of 1999 -5- mentioned in the recovery memo. Ex.PA, duly signed by him and also advance register and adjustment register, besides proof of various bills. In total, a sum of Rs.1,22,250/- was paid to the appellant. Out of which, he got adjusted a sum of Rs.67,848.58ps. on different dates and balance of Rs.54,401.42ps. remained due from him. He denied the suggestion that the appellant presented vouchers worth Rs.20,000/- to the Accounts Officer. He also denied that an amount of Rs.19,000/- was deducted from the salary of the appellant. PW2 Nem Chand, Cashier produced chit fund slips and also the register relating to the chit funds. Merely because those payments were not made in his presence as he was not the Cashier during the relevant period, is no ground to hold that the various chit funds cannot be read against the appellant. Similarly, PW5 Rattan LalVerma deposed after referring to bills Ex.PA/1 to Ex.PA/30 that those bore either his endorsement or that of the Section Officer working under him. The matter was, however, taken up when the appellant did not submit the bills for four months. The objections were not settled by the appellant and his co- accused Jarnail Singh. Once it stands proved that the payments were made to the appellant, he was under an obligation to explain the utilization. Having failed to do so, he cannot escape prosecution under Section 409 IPC. The dismissal of the suit filed by the P.R.T.C. and also the first appeal arising therefrom will not be sufficient to absolve the appellant of the crime committed by him. In the civil suit, the evidence of the P.R.T.C. was closed under Criminal Appeal No.788-SB of 1999 -6- Order 17 Rule 3 C.P.C. and resultantly, the P.R.T.C. was non- suited. However, in the present case, the prosecution has led sufficient evidence to prove the charge of criminal misappropriation against the appellant. Coming to the quantum of sentence, it may be noticed that the appellant has been facing the agony of criminal prosecution for the last about 22 years. He is not shown to be involved in any other criminal case. On account of his conviction in the present case, his services stand dispensed with. Under these circumstances, this Court is of the considered view that the sentence of imprisonment of one year imposed upon him is on the higher side and needs to be reduced. Resultantly, the conviction of the appellant under Section 409 IPC is upheld. His sentence of imprisonment is, however, reduced from one year to rigorous imprisonment for six months. The sentence of fine, alongwith its default clause, is maintained. But for the modification in the sentence of imprisonment to the extent as indicated above, the appeal fails and is, therefore, dismissed. ( T.P.S. MANN ) September 07, 2010 JUDGE satish Satish Kumar 2014.05.02 11:39 I attest to the accuracy and integrity of this document Chandigarh