IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1186 of 1997 Date of decision: 25th January, 2010 Mander Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ashok Jindal, Advocate for the petitioner. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Mander Singh, at the relevant time, was posted as Cashier in Gurdwara Takhat Sri Damdama Sahib, Talwandi Sabo. This Gurdwara is managed by Shromani Gurdwara Parbandhak Committee (hereinafter referred to as, ‘SGPC’), a statutory body. On 23rd July, 1988, Secretary, SGPC submitted a written complaint Ex.PA to Senior Superintendent of Police, Bathinda. The subject of the complaint stated that Mander Singh former Cashier had unlawfully misused the cash of Gurdwara. The complaint stated that it was brought to the notice of Secretary, SGPC by the Manager, Gurdwara Takhat Sri Damdama Sahib, Talwandi Sabo that at the time of handing over the charge, there was shortage of cash of Rs.1,39,196.42. The employee was not able to explain the shortage, therefore, he had misused the cash and the recovery be effected from him. Senior Superintendent of Police, Bathinda on 25th August, 1988 appended a note “get the money recovered, register case if required, report in 15 days”. This was marked to Sukhchain Singh, DSP, who further ordered SHO Raman to register the case and investigate the matter. On 2nd Criminal Revision No.1186 of 1997 September, 1988, formal FIR No.102, Ex.PW8/A on the basis of complaint Ex.PA, was registered at Police Station Rama under Section 408 IPC. The matter was investigated and report under Section 173 Cr.P.C. was submitted against the petitioner. He was tried by the Court of Judicial Magistrate (1st Class), Talwandi Sabo, who vide judgment and order dated 10th February, 1995, found the petitioner guilty of an offence under Section 408 IPC and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for two months. Aggrieved against the same, petitioner had filed an appeal. Additional Sessions Judge, Bathinda on 9th December, 1997 maintained the conviction and upheld the sentence, and ordered the dismissal of the appeal. As a result thereof, present revision petition was filed in this Court. Charge was framed against the petitioner on 27th September, 1990. The charge stated that in the year 1988, being a Cashier of SGPC and in the employment of SGPC in his capacity as Cashier, he was entrusted with amount of Rs.1,39,196.42 and the same was misappropriated by him and therefore, he committed criminal breach of interest with respect to the said property and thereby committed offence punishable under Section 408 IPC. Prosecution examined Gurcharan Singh as PW-1, who stated that in the years 1988-99, he was posted as Manager of Gurdwara Takhat Sri Damdama Sahib, Talwandi Sabo. He proved appointment letter Ex.P1 of the petitioner as a Clerk in SGPC. The appointment is dated 5th March, 1987. According to this witness, Baljinder Singh Accountant had proceeded on leave and on his place, petitioner was appointed as Cashier. An office order to this effect had been proved as Ex.P2. This order is dated 5th August, 1987. Vide Ex.P3, petitioner was asked to hand over the charge to Mohinder Singh, who was appointed as Cashier. Vide Ex.P4, 2 Criminal Revision No.1186 of 1997 petitioner was suspended for not obeying the order and misusing the cash. This witness also proved Cash Book Ex.PJ, according to which Rs.2,59,760.21 were cash-in-hand with the petitioner. The petitioner had handed over Rs.1,20,563.79, therefore, at the time of handing over the charge, there was shortage of Rs.1,39,256.42. In cross examination, document Ex.DA was put to the witness. The witness admitted that Ex.DA was issued on the letter pad of the head office of SGPC. A perusal of Ex.DA reveals that an inquiry was conducted and it was stated therein that Rs.32,655.48 is due from other employees and remaining amount of Rs.87,890.94 be recovered from the petitioner. This pertains to Resolution No.1346 passed by SGPC on 25th October, 1989. Mohinder Singh appeared as PW-2. He stated that on 15th July, 1988, he had taken the charge from the accused petitioner in the presence of Gurcharan Singh Manager and Baljinder Singh Accountant (who had returned from the leave). As per the record, Rs.2,59,760/- were outstanding. But Mander Singh handed over only Rs.1,20,563/- and thus there was shortage of Rs.1,39,196/-. Surjan Singh appeared as PW-3. He stated that he was instructed by Chief Gurdwara Inspector, Inderjit Singh and Bhan Singh, Secretary, SGPC that he should reach at Gurdwara Takhat Sri Damdama Sahib, Talwandi Sabo and in his presence proceedings of handing over of charge to Mohinder Singh from the accused petitioner be conducted. This witness further stated that there was shortage of the amount as stated by other witnesses. PW-4 Bikkar Singh at that time was posted as Storekeeper. He proved Cash Books, Receipt Books and other documents. Jang Singh appeared as PW-5. He stated that he was posted as Manager, Damdama Sahib and after the registration of case, he had handed over the record to the police. Joginder Singh, Inspector Punjab Police appeared as PW-6 3 Criminal Revision No.1186 of 1997 and stated that he had prepared the report under Section 173 Cr.P.C. and submitted the same to the Court. S.S. Khera, Tehsildar-cum-Executive Magistrate at Talwandi Sabo appeared as PW-7. He stated that on 15th December, 1988, Jarnail Singh, ASI Punjab Police Post Talwandi Sabo produced the accused and on the willingness expressed by the accused in his presence, specimen signatures were given by the accused. The number of signatures was 25 and the same was in Punjabi script and exhibited as Ex.PW7/A. SI Jarnail Singh PW-8 had partly investigated the case and had sent specimen signatures Ex.PW7/A for comparison to Director, Forensic Science Laboratory, Chandigarh. PW-9 SI Balbir Singh was the Investigation Officer. Statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating evidence was put to the accused petitioner. He admitted that he was appointed as Clerk and then promoted as Cashier. However, he stated that accounts were prepared by Accountant Baljinder Singh and cash receipts were issued by Kapur Singh Manager. He further stated that neither any charge was given to him nor the same was taken from him and that a false case has been registered against him. The petitioner gave his version as under: “Kapoor Singh Manager was indulged in anti-national activities and on my protest against the same, Kapoor Singh just to cover his own wrong registered a false case against me. The cash always remains with Kapoor Singh Manager and accounts cash book Ex.P5 was prepared by Accountant Baljinder Singh and cash receipts Ex.P1, Ex.PW4/1 to Ex.PW4/13 were issued by Kapoor Singh and the same also are not signed by me and neither any charge was handed over to me and nor any charge was taken from me. I did not give any note on Ex.P5 on 15.7.88. Kapoor Singh was arrested by the Punjab Police and later on he was died en-counter with the police. When he was arrested by the Punjab Police, he wrote 4 Criminal Revision No.1186 of 1997 a letter to Secretary SGPC, Amritsar that cash might have been taken away by the Police while he was taken in the Police Custody by the police vide his letter Mark-A and Ex.DX. The cash always remains in the safe custody of safe of Manager Kapoor Singh. I never committed any embezzlement. The receipts were issued by the Manager Kapoor Singh and Bikkar Singh and Baljinder Singh and Mohinder Singh and a false case was registered against me and on false allegation I was terminated from my services.” In defence, petitioner examined Gurchet Singh as DW-1. He stated that he was Sarpanch of village Phullo Mithi. According to this witness, petitioner was an honest person. He used to come to Gurdwara but he had not seen the accused working and nothing was recovered from the house of the accused and the accused had not purchased any movable or immovable property in the village, rather had sold some agricultural land. The trial Court rejected the argument that liability of the petitioner, if any, was of civil nature and no criminal case is made out. The trial Court also took into consideration the Resolution Ex.DA and stated as under: “12. … … … Ex.DA is in connection with Resolution dt 8.89.88 vide this letter Kapoor Singh Manager recommended recovery of Rs.87,890.94 paise adjusting Rs.51,305.48 paise. PW1 Gurcharan Singh while admitting this document has denied the suggestions as to fixing of liability on accused & others and this cerates doubt, rather a serious doubt in the embezzlement of collections and Gurdwara Funds.” Import of document Ex.DA was considered by two courts below, therefore, the counsel for the petitioner has failed to impress this Court that Ex.DA absolves the petitioner. A perusal of document Ex.DA reveals that there is only variation of the amount, which is to be recovered 5 Criminal Revision No.1186 of 1997 from the petitioner. The courts below have held that, that was subject to adjustment. Thus, there is no patent illegality or irregularity which calls for interference by the revisional Court to set aside the findings of guilt recorded by two courts below. The trial Court further held that even though Baljinder Singh Accountant and Kapoor Singh Manager were necessary to be examined, but their non-examination will not affect the case of the prosecution and concluded as under: “13. … … … To say that no charge was ever taken by the accused as per allegations in the statement, the same stands falsified as he did take over the charge from Kewal Singh and his signature in handing over the charge at Page No.109 of Cash Book stands proved, and it has also been proved that accused took over Rs.32965/- in cash from Kewal Singh while taking over the charge on 8.8.87 as proved in Ex.P5 Cash Book.” The appellate Court concurred with the findings recorded by the trial Court. I have heard arguments of Mr.Ashok Jindal, Advocate for the petitioner on 22nd January, 2010. He stated before me that no charge was entrusted to the petitioner, therefore petitioner had not handed over the charge. Petitioner had dealt with no cash, therefore, no case is made out against him. In his answer to question under Section 313 Cr.P.C., petitioner had admitted that he was posted as Clerk and was further promoted as Cashier. In the Cash Book maintained by the petitioner, amount of Rs.2,59,760.21 was outstanding. When charge was taken he had handed over Rs.1,20,563.79, thus there was shortage of Rs.1,39,196.42. This fact stands proved from the oral evidence of PW-1 Gurcharan Singh, PW-2 Mohinder Singh and PW-3 Surjan Singh. This fact 6 Criminal Revision No.1186 of 1997 also stands proved from the documents relied by the prosecution. Therefore, the contention of the counsel raised before me is not acceptable. Counsel for the petitioner had further submitted that in the present case, offence if any, had taken place in year 1988. A period of more than 22 years is going to elapse. Therefore, sentence of the petitioner should be reduced to already undergone. Counsel had submitted that petitioner had undergone about 16 days of his actual sentence. On the observation made by the court that petitioner should return the embezzled amount so that his prayer could be considered, counsel had pleaded that a decree had already been passed by the competent Court against the petitioner, therefore, deposit of the amount is subject matter of different proceedings. This Court would have construed deposit of the amount as a mitigating circumstance while determining the quantum of sentence taking into consideration the fact that petitioner had suffered mental agony and pain of protracted trial, but however since no specific stand has been taken, this Court is of the view that long pendency of the case for last 22 years can be considered for reduction in the sentence, while maintaining the conviction. Thus, this Court is of the view that ends of justice will be fully met in case sentence of two years rigorous imprisonment awarded upon the petitioner by the trial Court is reduced to one year rigorous imprisonment. With the modifications in sentence, noticed above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 25, 2010 rps 7