Criminal Revision No.1345 of 2001 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No.1345 of 2001 Date of decision: 16.4.2009 Ajay Kumar ......Petitioner Versus U.T.Chandigarh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Amit Rawal, Advocate, for the petitioner. None for the respondent. **** SABINA, J. The petitioner was convicted for an offence under Section 408 of the Indian Penal Code (“IPC”- for short) vide judgment and order dated 28.7.1994 by the Chief Judicial Magistrate, Chandigarh and sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.5000/-. Aggrieved by the same, the petitioner preferred an appeal and the same was dismissed vide judgment dated 31.8.2001 by the Additional Sessions Judge, Chandigarh. Hence, the present revision petition. Criminal Revision No.1345 of 2001 2 Prosecution case, as noticed by the Appellate Court in para 2 of its judgment, is reproduced herein below:- “The Brief facts of the case of the prosecution are that a complaint was made against the appellant Ajay Kumar ( who is the accused in the trial court and may referred as such here-in-after) by general Manager,Super Bazar, Chandigarh dated 11.5.1988, addressed to Inspector General of Police, U.T.Chandigarh. The complaint stated that Ajay Kumar Chadha was appointed as Salesman in Super Bazar on 1.12.1976, vide officer order No.1094-96 dated 1.12.1976. That he was posted on Cloth Counter in Sector 17 Branch, Chandigarh of Super Bazar, as per office order No. CCS/EA-II/84/5886-5899 dated 2.8.1984 That the appellant was thereafter, transferred from this counter, vide office order NO. CSS/EA-II/88/2391-96 dated 17.3.1988 and was directed to hand over the complete charge of this counter to Ram Krishan, Salesman, who was his successor. The appellant handed over the stock of cloth worth Rs.7,60,453.92 against his liability, the balance stock viz. amounting to Rs.10,04,981.86. That a shortage of Rs.2,44,527.89 was found against the appellant. That the said amount of Rs.2,18,347.04 has been misappropriated by Ajay Kumar accused in capacity as Salesman whereas, an amount of Criminal Revision No.1345 of 2001 3 Rs.26,180/- accrued on account of damaged clothes. That a total shortage of Rs.2,18,347.04 by accounting of Rs.26,180/-. That accused Ajay Kumar confirmed his liability balance amounting to Rs.10,04,981.86 in the liability Register, maintained in the Liability Branch of the Super Bazar in the month of March, 1988. The FIR of this case was registered on the basis of this complaint at Police Station Central, Chandigarh against the accused. The investigation of this case was carried out. The investigating Officer took into police possession the record from the Super Bazar, Consumer Store Ltd., Chandigarh, during the course of investigation. The Investigating Officer also got standard signatures of the accused before the Court. A report from Shri R.K.Jain , Assistant Government Examiner, was obtained, during the course of investigation to the effect that the disputed signatures were similar with the standard signatures of the accused. After usual investigation of the case, and recording the statements of the witnesses under Section 161 CR.P.C. 1973, the Station House Officer of Police Station, Central, Chandigarh laid a charge sheet against the accused in the Court of Illaqa Magistrate, Chandigarh.” Learned counsel for the petitioner has argued that the Criminal Revision No.1345 of 2001 4 prosecution has failed to prove its case. In fact, no misappropriation has been committed by the petitioner. The petitioner was working as a salesman with Super Bazar, Sector 17, Chandigarh. A shortage of Rs.2,44,527.89 and Rs.26,180/- on account of damaged cloth was discovered. As per the oral as well as documentary evidence on record, the petitioner was handed over the supplies and the same were entered in the Liability Register. The Liability Register was duly signed by the petitioner. During the course of investigation, the disputed signatures of the petitioner were got compared with his signatures and as per the opinion of the expert, the same were identical. Learned counsel for the petitioner, during the course of arguments, has placed reliance on documents Ex.D-1 to Ex.D-74. The same were prepared by the Charted Accountant namely Sharda Associates, after conducting physical verification. Learned counsel has further submitted that as per the said documents, the misappropriated amount was merely few thousand rupees i.e. Rs.10,04,981.86 – Rs.9,97,875.98 = Rs.7105.88. In this regard, Rajinder Kumar Sharma-PW-7, in his cross-examination, deposed that he had seen Ex.D-1 to D-74. They were signed by the petitioner. It was a report of physical verification conducted by the Charted Accountant under the orders of the officers during the period from 9.3.1988 to 18.3.1988. He also admitted that Sharda Associates had audited the stock of the Super Bazar. Since the genuineness of the Criminal Revision No.1345 of 2001 5 said documents was admitted by Rajinder Kumar Sharma-PW-7 and they were exhibited by the petitioner during cross-examination of PW-7, the same could not be brushed aside and were liable to be taken in consideration. In these circumstances, the misappropriation committed by the petitioner was not of such a huge amount as alleged by the prosecution but in view of Ex.D-1 to Ex.D-74, it was much less. Hence, the conviction of the petitioner, as ordered by the Courts below under Section 408 IPC is liable to be upheld. However, the sentence qua imprisonment is liable to be reduced to as already undergone by the petitioner. During the course of arguments, learned counsel for the petitioner has submitted that the petitioner has undergone one year of actual sentence. Accordingly, conviction of the petitioner under Section 408 IPC is maintained. However, sentence qua imprisonment is reduced to as already undergone by the petitioner. With this modification, the present revision petition is disposed of. (SABINA) JUDGE April 16, 2009 anita