The conviction for misappropriation under Section 408 of IPC is upheld, but the sentence is modified to the time already served due to the petitioner's age and health condition.

ORDER :

M.NIRMAL KUMAR, J.

The petitioner/accused in C.C.No.301 of 2003 was convicted by the trial Court by the judgment dated 08.09.2015 along with another accused for offences under Sections 408 , 471 and 477(A) of I.P.C. and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1,000/- for each offence. Aggrieved against his conviction, the petitioner/A1, preferred an appeal in C.A.No.44 of 2015 before the learned Additional District and Sessions Judge, Fast Track Court, Villupuram. The learned Sessions Judge, by the judgment dated 10.10.2018, partly allowed the appeal setting aside the conviction and sentence of the petitioner for offence under Sections 471 and 477(A) of I.P.C. and confirming the conviction and sentence for offence under Section 408 of I.P.C. against which, the present revision is filed.

2.The gist of the case is that the de-facto complainant/PW1 is the Deputy Registrar of Co-operative Society, Tindivanam. The petitioner/A1 was employed as Salesman and A2 was employed as Secretary at Maharajapuram Market under the control of V.Marudhur Primary Agricultural Co-operative Society Bank at Villupuram. The petitioner during the period from May, 1998 to July, 1998 was in-charge of the Stores as Salesman, not properly recorded the sale of essential commodities/ration articles, not prepared the bills, misappropriated a sum of Rs.1,24,286.50 and for non-ration articles, misappropriated a sum of Rs.4,908.35 and in sale of gunny bags a sum of Rs.4,000/- misappropriated. In total, the petitioner misappropriated a sum of Rs.1,33,194.85 by creating forged documents and making false entries in the cash book and registers. PW2 is the Supervisor of the Co-operative Bank, PW3 is the Salesman, PW4 is the Enquiry Officer who conducted enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983 (in short 'the Act') and submitted his report/Ex.P3 dated 22.03.1999. PW5 and PW6 are the Packer, who succeeded the petitioner. PW7 is the Sub Inspector of Police, who received the complaint from PW1, registered a case in Crime No.2 of 2002 for offence under Sections 408 , 477(A) and 401 of I.P.C., recorded the statement of PW5 and PW6. PW8 is the Investigating Officer, who took up investigation from PW7, collected all the documents, recorded the statement of witnesses and filed final report in this case.

3.During trial, on the side of the prosecution PW1 to PW8 examined, Exs.P1 to P18 marked. On the side of the defence, no witnesses examined and no documents marked. On conclusion of trial, the trial Court convicted the petitioner as stated above.

4.The contention of the learned counsel for petitioner is that the petitioner falsely implicated in this case. The shortage of ration and non- ration articles projected by the prosecution is not the period during which the petitioner served as Salesman. During enquiry under Section 81 of the Act, the petitioner raised all these points but the enquiry officer/PW4 not considered the same. In this case, no independent investigation conducted. The Enquiry Report/Ex.P3 and Registers/Exs.P4 to P12, Statement of the Accused/Ex.P13 and other reports/Exs.P14 to P17 all produced by PW4 and taken as gospel truth both by the Investigating Officer and the Trial Court. The materials and documents not independently considered. The documents handled by several persons, the admissibility and relevance to issue not considered. Since there was a statement in Ex.P13 which was received in a deceitful manner, the same projected against the petitioner. The packers and salesmen examined as witnesses in this case admit