Criminal Revision No.430 of 1993 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.430 of 1993 Decided on : May 05, 2009 Karam Chand ... Petitioner VERSUS State of Haryana ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.R.C.Chaudhary, Advocate for the petitioner. Mr.Parduman Yadav, Deputy Advocate General Haryana for the respondent. A.N.JINDAL, J.- Assailed in this petition is the judgment dated 10.7.1993 passed by Additional Sessions Judge, Jagadhri dismissing the appeal of the accused/ petitioner (herein referred as `petitioner’) against the judgment dated 11/12.11.1991 passed by Judicial Magistrate Ist Class, Jagadhri and maintaining the sentence of rigorous imprisonment for two years and a fine of Rs.3000/- under Section 408 of the Indian Penal Code. Briefly stated, the allegations as unfolded by the prosecution are that in the year 1981-82, the petitioner was posted as Secretary in the Cooperative Society, Bibipur (herein referred as `society’) and was entrusted with money by members, which he did not enter in the records of the Society and failed to deposit the same in their appropriate Criminal Revision No.430 of 1993 [ 2 ] accounts. It is alleged that he dishonestly misappropriated the amount. On the basis of the complaint sent by Sh.Som Nath Sharma, Assistant Registrar, Cooperative Societies, Yamunanagar, a case was registered against the petitioner and the investigation was carried out by Sh.Sube Singh, ASI. During investigation, statements of 69 witnesses were recorded and it was found that the petitioner dishonestly had embezzled a sum of Rs.99325/-. On completion of the investigation, challan was presented. The petitioner was charged under Section 408 IPC, to which he pleaded not guilty and claimed trial. During trial, the prosecution, in order to substantiate the charge, examined Irshad (PW1), Vakil (PW2), Rakim (PW3), Hanif (PW4), Noor Mohd.(PW5), Rajiv Hassan (PW6), Jahir (PW7), Multan (PW8), Sahib (PW9), Liakat (PW10), Ayub (PW11), Seeha (PW12) and Yasiv (PW13). While examined under Section 313 of the Code of Criminal Procedure, the petitioner denied all the allegations and pleaded his innocence. While admitting his appointment and posting as Secretary of the Society, it was submitted that he was duly discharging his duty of recovering and depositing the loan amount in the Bank. However, no evidence was led in defence. Ultimately, the trial ended in conviction and his appeal also failed, as referred to above. Heard, it was first contended that no pass-books were produced in evidence by the prosecution and only the statements of thirteen witnesses are on record, which without any documentary proof, Criminal Revision No.430 of 1993 [ 3 ] do not prove the embezzlement. The argument lacks merit. It is worthwhile to mention that all the thirteen witnesses amply establish the guilt of the petitioner on record. The witnesses are none else but the Members of the Society, who had obtained loan and had been handing over the amount to the petitioner for depositing the same in the Bank. This part of their statement has not been questioned during their cross- examination by the defence counsel. Moreover, the petitioner in his statement under Section 313 Cr.P.C, has admitted that he being the Secretary had the function of recovering the loan amount and to deposit the same with the Bank. Thus, no reason could be seen to disbelieve the version of the witnesses, which does not require support of any document. Secondly, the other contention that non-examination of the Investigating Officer in the case is fatal, has no merit. In this regard, in view of the admissions made by the petitioner and the independent evidence that the petitioner was handed over the money and he did not deposit the same in the Bank, his non-examination as a witness is not fatal. To prove an offence under Section 408 IPC, it is not essential for the prosecution to prove the precise mode of conversion or misappropriation of the property entrusted to the accused, or over which he had dominion. The intention of the accused is the sine qua non to prove such offence and it cannot be subjected to direct proof . Once entrustment of the amount in question is proved, it is the duty of the accused to account for the same and the accused having been entrusted Criminal Revision No.430 of 1993 [ 4 ] with certain property was bound to apply the said property as per directions issued to him. Once, a specific duty to collect the amount and to deposit the same was entrusted to him, he was bound to perform the same as a good and faithful public servant. In the case in hand, the petitioner has miserably failed to satisfy this requirement. Both the courts below have taken the consistent view that the petitioner dishonestly misappropriated the amount collected from the Members of the Society and embezzled the same. Nothing material could be elicited from the record, which may impel this court to differ with the findings of fact, returned by both the courts below. Thus, the judgment of conviction is maintained. However, records reveal that the occurrence took place way back in the year 1981-82. The petitioner has already suffered a lot; due to protracted proceedings, sword of sentence remained hanging over his head throughout the aforesaid period; he is having a family to support and no bad antecedents of the petitioner have been brought on record by the prosecution in order to dub him as habitual offender. Thus, on conspectus of the entire record, to my mind, the ends of justice would be met if the sentence of rigorous imprisonment is reduced to one year. Ordered accordingly. However, the fine clause shall remain intact. Copy of the judgment be sent to the Chief Judicial Magistrate, Jagadhri for compliance. May 05, 2009 ( A.N.JINDAL ) `gian' JUDGE