1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.15 OF 1999 Basavraj Sidram Giddimany Applicant versus State of Maharashtra Respondent Mr.R.F.Lambe for applicant. Mr.Rajesh More, APP for the State. CORAM : A.S.OKA, J. DATE : 09th June 2009 ORAL JUDGEMENT :- 1. The submissions were heard before Summer vacation. Today further submissions of the learned APP have been heard. 2. The challenge in this criminal revision application is to the order of conviction of the applicant for the offences punishable under sections 409 and 477 of the Indian Penal Code. The applicant has been sentenced to suffer rigorous imprisonment for one year for the offence punishable under section 409 of the Indian Penal Code and to 2 pay fine of Rs.500/-. He is sentenced to suffer rigorous imprisonment for one year for the offence punishable under section 477A of the Indian Penal Code. The order of conviction passed by the Trial Court has been confirmed in appeal by the Sessions Court. 3. The allegation is that the applicant was serving as a Sub Post Master in Branch Post Office at Gaudgaon, Taluka Akkalkot, District Solapur. The allegation against the applicant is of misappropriation of amount during the period from 11th February 1986 to 18th March 1987. The allegation is that one Gurunath Shamrao Mhetri was holding an account in the post office where the applicant was working. He had deposited sums of Rs.2,800/-, Rs.800/-, Rs.700/- and Rs.200/- on 22nd October 1986, 13th November 1986, on 12th December 1986 and on 23rd December 1986 respectively. He had withdrawn amounts of Rs.250/- each on 30th October 1985 and 3rd November 1986. Another account holder Mr.Sangappa Sidramapa Patil had deposited Rs.200/- on 20th March 1986 and Rs.1,600/- on 9th July 1986 in his account. The allegation is that though the amounts were deposited by the said two account holders and though the amounts were accepted by the applicant, he did not credit the said amounts in the said accounts by making entries in the account books. Similar allegations have been made against the applicant as regards deposits made by one Revansidha Laxman Vijapure and one Totappa Dhondappa Patil in 3 their respective accounts. The allegation is that the applicant misappropriated total amount of Rs.7,299/- deposited by the said four account holders in their respective accounts. It is alleged that the investigation was carried out by the complainant who was Senior Superintendent of Post Offices on 14th April 1987. On 15th April 1987, it is alleged that on 15th April 1987 a sum of Rs.9,000/- was credited by the applicant which included the penalty. The allegation is that the applicant had misappropriated an amount of Rs.7,299/- of the aforesaid four deposit holders while the applicant was working in the post office. The learned Magistrate recorded a finding that false entries were made by the applicant in the account books with an intention of defrauding the Government and with an intention to misappropriate the amounts entrusted to him. The Trial Court held that the allegation of misappropriation of Rs.7,299/- belonging to the depositors was also established. In appeal preferred by the applicant the order of conviction was confirmed. 4. The learned counsel appearing for the applicant submitted that admittedly when the offence was allegedly committed the applicant was a public servant. Admittedly, there was no sanction to prosecute the applicant granted. He submitted that the Courts below have committed an error by convicting the applicant though the sanction was not granted. He submitted that the witnesses examined by the 4 prosecution had no personal knowledge. He submitted that there was no evidence adduced by the prosecution to prove the misappropriation. He submitted that on 15th April 1987 the applicant has not only deposited the alleged misappropriated amount but an additional amount of penalty totaling to Rs.9,000/-. He submitted that there was no mens rea. He submitted that the allegation of fabrication of accounts and misappropriation has not been proved. 5. Without prejudice to the aforesaid contentions he submitted that as the entire amount together with penalty amount was deposited by the applicant in the year 1987, leniency deserves to be shown. He submitted that the original case is of the year 1985 and today in the year 2009 the applicant cannot be sent to the jail. 6. The learned APP submitted that in this case there was no requirement of sanction and in any case lack of sanction was not fatal to the prosecution case. She submitted that it was a case of misappropriation and, therefore, the applicant is not entitled to show any leniency. 7. I have carefully considered the submissions. I have perused the record. 5 8. In revisional jurisdiction it is not permissible to reappreciate the evidence which has been appreciated by the Trial Court and the Appellate Court. It will not be open for this Court to interfere with the appreciation of evidence made by the Courts below. A perusal of the judgements of the Courts below show that the said Courts have considered and appreciated the evidence of all the prosecution witnesses. The fact that the applicant was serving as a sub post master at the relevant time has not been disputed in the statement under section 313 of the Code of Criminal Procedure, 1973. PW-1 Manurkar deposed before the Court that one Gurunath was having an account with the concerned post office and he had deposited various amounts from 22nd October 1986 to 23rd November 1986 totally amounting to Rs.4,500/- and amounts of Rs.250/- each were withdrawn by him on 30th October 1985 and on 3rd November 1986 respectively. Pass book of the said account was produced at Exhibit-13 which was proved by the said witness. The witness also proved the pass books of the other three account holders. He also proved the branch office accounts at Exhibit-14 and saving bank journal at Exhibit-15. The Sessions Court has observed that the evidence of PW-1 in relation to deposit of amounts by account holder has not been challenged and very general cross examination has been made. PW-1 deposed that the amounts deposited by the said account holders which were reflected in the pass books were not 6 entered by the applicant in the S.B.Journals. The branch office daily accounts were produced by the prosecution at Exhibit-15. It is found that the entry of the amount of Rs.2,800/- deposited on 22nd October 1986 by Gurunath Mhetri has not been made in the daily accounts. The same is the case with the other amounts deposited by the said account holder. Thus both the Courts have held that in the pass books of the account holders, the applicant made entries of the amounts deposited by them but corresponding entries were not made in the S.B.Journals and branch office daily accounts. Thus the documentary evidence on record in the form of pass books shows that the amounts were deposited by the aforesaid account holders and entries thereof were made by the applicant but the corresponding entries of the said deposits were not made by the applicant in the account books which are required to be maintained by the post office. The concurrent finding recorded by the Courts below is that though the applicant acknowledged receipts of the said amounts of the said account holders in the respective pass books, he did not deposit the said amounts with the head office. A submission was made before the Courts below that the concerned account holders have not been examined. The said contention, in my opinion, has been rightly negatived by the Sessions Court. The relevant documents i.e. the pass books of the customers and S.B.Journals and daily account of the post office were produced and proved before the Trial Court. This 7 documentary evidence establishes that the respective amounts were deposited by the account holders with the applicant from time to time and entries thereof were made in the pass books of the account holders. The finding of the Courts below is that the said amounts were entrusted to him by the account holders and the applicant misappropriated the said amounts as he did not deposit the said amounts with the post office. That is the reason why it is held by the Courts below that the offence of criminal breach of trust under section 409 has been established. There is no reason to find fault with the said finding. 9. The prosecution produced and proved before the Trial Court the S.B.Journals at Exhibit-14, the branch office daily account at Exhibit-15. Though the applicant was under an obligation to maintain the said books, admittedly entries of the amounts deposited by the four account holders were not made in the said accounts maintained by the applicant. Therefore, the offence of falsification of the account under section 477-A of the Penal Code has been held as proved. This finding is based on the entries in the books at Exhibits-14 and 15. There is a failure of the applicant to incorporate the said entries regarding deposit of the amounts by the customers of the post office. The applicant himself deposited the amount which he had not deposited earlier with the post office. Therefore, it is very difficult to 8 find fault with the finding recorded by the Lower Courts that offence under section 477-A has been proved. 10. The main submission made by the learned counsel for the applicant is that sanction to prosecute the applicant in view of provisions of section 197 of the Code of Criminal Procedure, 1973 was necessary. 11. It must be stated here that the said issue was not canvassed before the Courts below. It will be necessary to refer to a decision of the Apex Court in the case of Central Bureau of Investigation Vs. V.K.Sehgal and another WITH State of Haryana Vs. V.K.Sehgal ({1999}8-SCC-501). It will be necessary to refer to what is held by the Apex Court in paragraphs 10 and 11. In paragraph 10 the Apex Court held thus :- “10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at 9 the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.” (Emphasis added) In paragraph 11 the Apex Court has observed thus :- “11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure”. (Emphasis supplied) 12. The learned counsel appearing for the applicant has relied upon various decisions including the decision in the case of Dr.Hori Ram Singh Vs. Emperor (AIR-1939-Federal Court-43). The submission of the counsel for the applicant was that the issue regarding sanction can be canvassed at any stage of proceeding. 13. In this case assuming that the sanction was required, the applicant has not shown failure of justice on account of want of sanction. Therefore, at this stage it will not be open to urge that the 10 prosecution is vitiated by want of sanction. 14. Apart from the fact whether said issue can be canvassed by the applicant in the revision application, broadly it must be stated that as far as grant of sanction is concerned, following position can be taken as settled viz. :- a) to attract the provisions regarding sanction there must be reasonable connection between the act and the official duty; b) it does not matter if the act exceeds what is strictly necessary for the discharge of the official duty; c) the act done in excess of what is strictly necessary would also be protected, the same being in purported discharge of the duty; and 15. The action of the applicant of not depositing the amounts deposited by the customers in the respective accounts and keeping the said amounts with him cannot be said to have a reasonable connection with the official duty. It cannot be said that the action of misappropriating the amounts to himself and falsification of accounts was an act purportedly made for discharge of his duty. Therefore, it is 11 not possible to accede to the submission that the prosecution was vitiated for want of sanction. 16. In the circumstances, in the limited revisional jurisdiction it is not possible to interfere with the order of conviction passed by the Courts below. 17. As far as last submission of the learned counsel for the applicant for leniency is concerned, reliance has been placed on the decision of the Apex Court in the case of Durga Dass Vs. State of Himachal Pradesh (1973-AIR-[SC]-1379). The said decision was rendered in an appeal from the judgement of the High Court confirming the conviction of the appellant under the provisions of 5(1) and 5(2) of the Prevention of Corruption Act, 1947. In paragraph 9 of the said decision the Apex Court has said thus :- “9. The appellant was released on bail by this Court on January 21, 1970, after the application for leave to appeal was granted. The appellant had already undergone the sentence of imprisonment for a period of more than six months. The offence in that case was committed on April 13, 1964. We do not think it proper in these circumstances to sent the appellant to jail again. In Jagdish Prasad v. The State of West Bengal ([1972]1- SCC-326 : 1972 SCC [Cri]-63) this Court has said that even when a statute prescribes a minimum sentence for an offence but gives a discretion to the Court to impose a lesser sentence for reasons to be given, the fact that the accused was on bail for a pretty long period would be relevant ground in exercising the discretion to impose a 12 lesser sentence. We confirm the conviction of the appellant but reduce the sentence to the period of imprisonment already undergone by the appellant.” It was sought to be contended that the prosecution is of the year 1985, the applicant was convicted in the year 1997 and during pendency of the appeal in the Sessions Court the applicant was enlarged on bail. It was pointed out that even during pendency of the revision application the applicant was on bail. It is an admitted position that a total amount of Rs.9,000/- has been deposited by the applicant. The misappropriated amount was Rs.7,299/-. The said amount was deposited on 15th April 1987. It is pointed out that the offence alleged relates to the period from 11th February 1986 to 18th March 1987. 18. The applicant continuously remained on bail. The submission of the counsel for the applicant was that considering the deposit of the entire amount with penalty made in the year 1987, now after a lapse of nearly fourteen years, the applicant cannot be made to suffer rigorous imprisonment. 19. Under section 409 of the Penal Code the maximum punishment is of imprisonment for life and of fine. As far as section 477A of the Penal Code is concerned, the punishment may extend up to seven years or with or without fine. In the present case, the substantive 13 sentence is of rigorous imprisonment for one year for both the offences and the sentences have been ordered to run concurrently. At the relevant time the Court of Magistrate had jurisdiction to impose a fine of maximum amount of Rs.5,000/-. By the amendment of the year 2005 the said amount has been enhanced to Rs.10,000/-. 20. The allegation of misappropriation relates to the period from February 1986 to March 1987. The entire amount along with some penalty was brought back and deposited by the applicant on 15th April 1987. For the said offence committed in the year 1986 the trial ended in conviction on 19th March 1997 and the appeal against judgement of the Trial Court was dismissed on 7th January 1999. Since then the applicant is on bail. The deposit of Rs.9,000/- made by the applicant no doubt indicates to some extent acceptance of the guilt but it also indicates that in the year April 1987 itself the entire misappropriated amount along with penalty was brought back by the applicant. 21. Considering this peculiar factual position, the substantive sentence for both the offences of rigorous imprisonment for one year deserves to be reduced to three months for each offence. The fine amount has been already deposited. Therefore, though the conviction deserves to be confirmed, the order of sentence deserves to be modified. 14 22. Hence, I pass following order :- A) The impugned order of conviction is confirmed; B) The substantive sentence for both the offences under sections 409 and 477A of the Indian Penal Code is brought down to rigorous imprisonment for three months each instead of rigorous imprisonment for one year. The sentences shall run concurrently. The fine amount is maintained; C) The applicant will have to surrender to undergo the punishment; D) The revision application is disposed of accordingly; E) On the prayer made by the counsel for the applicant, time of ten weeks from today is granted to the applicant to surrender in terms of the direction issued by this Court. (A.S.OKA, J.)