The main legal point established in the judgment is that a public servant can be held liable for criminal misconduct and breach of trust under relevant legal provisions, and the court has the discretion to consider mitigating factors such as the defendant's age in sentencing.

JUDGMENT :

1. This appeal is directed against the judgment dated 29.09.2018 passed by the Court of learned Special Judge Anti-Corruption (CBI) Cases, Srinagar (hereinafter referred to as ‘the trial court’) whereby the appellant has been convicted for commission of offences under Section under Section 420, 409 RPC and 5(2) read with 5(1) (c) &(d) of the Prevention of Corruption Act, Samvat, 2006 and sentenced to simple imprisonment of two years for each offence and a consolidated fine of Rs.10,000/- and in the event of non-payment of fine within a period of 30 days, the same has been ordered to be realized from the estate of the appellant

2. The appellant has impugned the judgment on the ground that the prosecution has failed to prove that the appellant was entrusted with the job of cashier/clerk and as such, the appellant was not discharging his duty as public servant at relevant point of time. It is urged by the appellant that the learned trial court has not appreciated the evidence in its right perspective and has convicted the appellant despite the fact that the prosecution could not prove its case beyond reasonable doubt

3. Mr. Showkat Ali Khan, learned counsel appearing for the petitioner submits that the appellant could not have been held guilty of commission of offence under Section 409 of RPC, as no amount was entrusted to the appellant by the Bank and further that there was no loss to the bank or to any private individual. He further submits that once offence under Section 409 of RPC was not made out, the appellant could not have been convicted for the commission of offence under section 5(1) (c) (d) of the Prevention of Corruption Act, Samvat, 2006. He further argued that even the offence of cheating is not made out against the appellant.

4. Per contra, Mr. Tahir Majid Shamsi, learned DSGI, submits that the appellant was assigned the duty of Casher and while discharging his duty, he accepted the amount of Rs.21,000/- in total on three different occasions and issued the receipts to PW-4 Tariq Ahmad Parray but instead of depositing the same with the Bank, he retained the amount of Rs.21,000/- with himself. He further submits that the prosecution has been successful in proving the guilt of the appellant by leading cogent evidence and there is neither any illegality nor any infirmity in the judgment passed by the learned trial court.

5. Heard and perused the record.

6. The prosecution story is that on the basis of information received from the source that the appellant while working as Casher cum Clerk in Kamraz Rural Bank (now J&K Grameen Bank) Branch Authoora District Baramulla, received cash from about 16 account holders at the counter of the bank on various dates for depositing the same in the bank. He stamped and signed the counter folios of pay in slips, made entry in the passbook of the account holder in token of receiving cash but dishonestly and fraudulently misappropriated the same by not depositing the cash in the bank and by not reflecting the credit entries in the concerned bank records.

7. During the course of investigation, the ledger sheets, pass books, counter-folios and pay-in-slips of account holders were seized. Besides scroll and photo-stat copies of supplementary and day books etc. were also obtained and the witnesses were examined. During the investigation it was established that during the year 2007-2008, the appellant had misappropriated an amount of Rs.21,000/- in respect of Account No.DLA-430 of the Bank. After receiving the amount, the appellant issued counter folios of pay-in-slips as acknowledgments to the account holder duly stamped and signed/initialed by him. The appellant issued three receipts in the form of counter folios of pay in slips dated 26.10.2007, 11.03.2008 and 13.06.2008 in respect of Rs.4500/-, Rs.11000/- and Rs.5500/- respectively, totaled Rs.21,000/-. The seized counter folios of pay-in-slips were sent to GEQD Shimla along with admitted/specimen writing, specimen signatures and in