2013 Supreme(Raj) 910
RAJASTHAN HIGH COURT
Gopal Krishan Vyas, J.
Jag Jeevan Ram Garg - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Revision Petition No. 143 of 1995.
Decided On : 4-03-2013
Advocates:
For the Petitioner:Vineet Jain, Advocate.
For the Respondent: Ashok Prajapat, P.P.
The court held that the offense of misappropriation of property entrusted under Section 409 of the Indian Penal Code is established when a person receives property from another person with the understanding that it will be returned or used for a specific purpose, but instead misappropriates it for his own use.
Headnote:
CRIMINAL REVISION - SECTION 409, INDIAN PENAL CODE - MISAPPROPRIATION OF PROPERTY ENTRUSTED - CONVICTION AND SENTENCE - REDUCTION OF SENTENCE - ENHANCEMENT OF FINE - FACTUAL BACKGROUND, LEGAL ANALYSIS, AND FINAL DECISION.
Fact of the Case:
The petitioner, a Branch Post Master, was convicted under Section 409 of the Indian Penal Code for misappropriating Rs. 1,342/- from a CTD account holder, Ram Swaroop Kabra. The petitioner challenged the conviction and sentence, arguing that the complainant had signed the receipt for the amount and that the offense, if any, would fall under Section 406, not Section 409.
Finding of the Court:
The court found that the complainant had indeed signed the receipt, but that he had done so before receiving the amount. The court also found that the petitioner had not paid the amount to the complainant on the date mentioned in the receipt, and that the complainant was not even present at the post office on that date. The court concluded that the petitioner had misappropriated the amount and was guilty of the offense under Section 409.
Issues: 1. Whether the petitioner was guilty of misappropriation of property entrusted under Section 409 of the Indian Penal Code. 2. Whether the sentence imposed by the lower courts was appropriate.
Ratio Decidendi: 1. The court held that the petitioner was guilty of misappropriation of property entrusted under Section 409 of the Indian Penal Code because he had received the amount from the complainant but had not paid it to him. The court found that the petitioner had admitted to filling in the receipt and obtaining the complainant's signature, but that the complainant had not received the amount on that date. The court also found that the complainant was not present at the post office on the date mentioned in the receipt. 2. The court held that the sentence imposed by the lower courts was excessive, considering that the incident had taken place 38 years ago and that the petitioner had already served some time in custody. The court reduced the sentence to the time already served and enhanced the fine to Rs. 3000/-.
Final Decision: The court partly allowed the revision petition, maintaining the conviction but reducing the sentence to the time already served and enhancing the fine to Rs. 3000/-.
JUDGMENT
1. - Instant criminal revision petition has been filed by the petitioner against the judgment dated 18.04.1995 passed by the Addl. Sessions Judge No. 1, Chittorgarh in Criminal Appeal No. 370/1985, by which, the appellate Court affirmed the judgment and order dated 18.05.1984 to the extent of conviction for offence under Section 409, I.P.C. passed by the Chief Judl. Magistrate, Chittorgarh in Criminal Case No. 165/1980 but reduced the substantive sentence of 2 years' rigorous imprisonment to 1 year's rigorous imprisonment while maintaining the fine of Rs. 1500/-, in default of payment of fine, to further undergo 6 months' rigorous imprisonment.
2. Learned counsel for the petitioner submits that an FIR was registered against the petitioner for offence under Section 409, I.P.C. at Police Station Kanera (District Chittorgarh) upon complaint filed by the Superintendent, Post Office, Chittorgarh, in which, it is alleged that the petitioner was posted as Branch Post Master at Kanera Post Office in the year 1975 and one Ram Swaroop Kabra who was having his CTD account with the said Post Office closed the account and submitted a withdrawal application on 07.01.1975 while putting his signature upon receipt for an amount of Rs. 1,342/- which he handed over to the accused petitioner. It is alleged that the petitioner withdrew the amount but did not pay the same to the complainant. Therefore, the complainant Ram Swaroop Kabra submitted complaint before the Superintendent, Post Office, Chittorgarh who, in turn, forwarded the same to the S.H.O. Police Station Kanera. After investigation, the police filed challan against the petitioner in the Court of M.J.M., Nimbahera from where the case was transferred to the Court of Chief Judl. Magistrate, Chittorgarh.
3. In the Court of Chief Judl. Magistrate, Chittorgarh, the trial was commenced and, after framing charge, prosecution adduced oral evidence of 5 witnesses and exhibited 51 documents in support of the prosecution case and document Ex.-D/1 was exhibited which is statement of complainant Ram Swaroop Kabra recorded under Section 161, Cr.P.C. After recording the evidence, the trial Court adjudicated the matter and convicted the accused-petitioner for offence under Section 409, I.P.C. vide judgment dated 18.05.1984 but acquitted him from the charge of commission of offence under Section 465, I.P.C. and passed sentence of 2 years' rigorous imprisonment along with fine of Rs. 1500/-, against the said judgment, an appeal was preferred by the petitioner and the learned appellate Court viz., Addl. Sessions Judge, Chittorgarh decided the appeal vide judgment dated 18.04.1995 and reduced the sentence from 2 years' rigorous imprisonment to 1 year's rigorous imprisonment while maintaining the fine.
4. In this revision petition, the petitioner is challenging the validity of both the judgments.
5. Learned counsel for the petitioner submits that conviction and sentence awarded to the petitioner is contrary to the evidence on record because the trial Court committed an error while holding that the petitioner is guilty for offence under Section 409, I.P.C. and the appellate Court also committed grave illegality on the face of record in affirming the conviction of the petitioner for offence under Section 409. I.P.C.
6. Learned counsel for the petitioner vehemently argued that it is admitted case of the prosecution that Ram Swaroop Kabra had signed the warrant of payment in lieu of receipt of amount of Rs. 1,342/-, therefore, the subsequent statement of complainant Ram Swaroop Kabra that he did not receive the amount is totally unworthy of any credential, therefore, his testimony as such was required to be examined properly but the learned trial Court relied upon the statement of Ram Swaroop Kabra and did not discredit his statement for the purpose of holding the petitioner guilty for commission of offence under Section 409, I.P.C., therefore, the judgment impugned deserves to be quashed.
7. Learned counsel
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