Munusamy, Male Age 51 Years v. State Rep.By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.04.2024
CORAM
THE HONOURABLE MRS. JUSTICE R. HEMALATHA Munusamy ... Petitioner Vs.
State represented by The Sub Inspector of Police, C.C.I.W.C.I.D. Vellore.
... Respondent (Crime No.12/2003) Prayer : Criminal Revision filed under Section 397 r/w. 401 of Criminal Procedure Code to set aside the judgment and orders dated 29.03.2016 passed in C.A.No.119/2012 by the I Additional District and Sessions Judge, Vellore, confirming the judgment and orders dated 28.06.2012 passed in C.C.No.34/2005 by the learned Judicial Magistrate No.II, Vellore.
For Petitioner : Mr.S.Sairaman For Respondent : Ms.A.Shahana Fathima, GA (Crl. side)
ORDER
Challenging the conviction and sentence passed in C.A.No.119/2012 by the learned I Additional District and Sessions Judge, Vellore, confirming the conviction and sentence passed in C.C.No.34/2005 by the learned Judicial Magistrate No.II, Vellore, the present criminal revision case is filed.
2. The case of the prosecution as could be discerned from the oral and documentary evidence is as follows:
Thiru. Thandavamoorthy (P.W.2), the then Deputy Registrar of Kommeswaram Primary Agricultural Co-operative Bank, received a complaint from Thiru. Chellam (P.W.3), the then Special Officer of Kommeswaram Primary Agricultural Co-operative Bank and ordered for an enquiry under Section 81 of the Act. He appointed Thiru. Raviraj (P.W.7) the Sub Registrar of the Bank as an enquiry officer vide his order (Ex.P3) dated 28.10.2002. P.W.7 conducted the enquiry and submitted a report (Ex.P2) to Thiru. Kripanandam (P.W.1) the then
Deputy Registrar of the Bank after elaborating the duties and responsibilities of the present revision petitioner. He had reported thus : i. The revision petitioner with an intention to defraud the society, its members and staff did not give credit to the bank account, the sale price of the gunny bags to the tune of Rs.65,835/- and misappropriated the same for his personal gain. ii. He took the EPF amount of the employers of the society without any permission, approval or resolution on various dates to the tune of Rs.1,45,000/- iii. Thiru.Kripanandam (P.W.1) after analysing the enquiry report (Ex.P2) submitted by P.W.7, sent a letter dated 12.11.2003 (Ex.P1) to the Superintendent of Chennai to initiate action against the present revision petitioner. The Superintendent of the Society called for a detailed report from Senthil Kumar (P.W.
9), Special Officer of the Society with regard to swindling of funds from EPF Account by the revision petitioner. P.W.9 after inspecting various records submitted his report (Ex.P12) stating that the revision petitioner had swindled the EPF amount of the staff of the society.
Thereafter, the revision petitioner was placed under suspension on 01.11.2002.
iv. Thiru.Chakrapani (P.W.8), Special Officer conducted a surprise inspection in the Primary Agricultural Co-operative Bank Kommeswaram on 09.09.2002 for the period from 01.10.2001 to 31.03.2002 and found the swindling of various amounts by the revision petitioner. According to him, there was a deficit of Rs.39,508/- towards sale proceeds of gunny bags and that there was no proper entry in the loan Register of EPF account of the staff of the Bank. Accordingly, an entry for Rs.1,45,000/- was made towards EPF loan amount and that there was no justification for reconciliation of Bank Account with Central Co-operative Bank, Vellore for Rs.1,26,134/-. It is also his deposition that the revision petitioner did not collect deficit amount of Rs.26,000/- from five bidders of the jewels of the society which were sold on public auction. He submitted his report (Ex.P12). v. Tmt. Kirubakaran (P.W.6), the salesman of Fair Price Shop, Somalapuram deposed that he handed over the following empty
gunny bags on 07.06.2002 to the revision petitioner as per the list (Ex.P7) maintained in his Register Description of Empty Gunny Bags Capacity Quantity Rice bag 100 kg Rice bag 50 kg Sugar bag 100 kg He also marked Stock Register (Ex.P8). His evidence before the enquiry officer was marked as Ex.P9.
3. Thiru.Thandavamurthy (P.W.2), the then Deputy Registrar, Kommeswaram Primary Agricultural Co-operative Bank received a complaint from Thiru.Chellam (P.W.3) and ordered for an enquiry under Section 81 of the Act. He appointed Thiru.Raviraj (P.W.7), Sub Registrar of the Co-operative Bank as an enquiry officer vide his orders dated 28.10.2002 (Ex.P3). Accordingly, P.W.7 conducted an enquiry and submitted a report dated 07.02.2003 (Ex.P2) to Thiru.Kripanandam (P.W.1), the then Deputy Registrar, Kommeswaram Primary
Agricultural Co-operative Bank.
4. Thiru.Devakumar (P.W.5) was working as a clerk in the bank. According to him, the sale persons of various Fair Price Shops would hand over the empty gunny bags to the bank after getting acknowledgement for the same. A copy of the acknowledgement would be submitted to him. He would verify the same and make relevant entries in the Register. According to him, on 07.06.2002, the Salesman of Somalapuram Factory Shop though handed over 875 empty gunny bags as mentioned in Para 2 (v) to the revision petitioner, the same did not find place in the relevant Registers.
5. Thiru.Senthilkumar (P.W.9) was working as a Special Officer of the Bank between 25.09.2002 and 23.05.2003. As per the instructions of the Deputy Registrar, Tirupattur Zone, P.W.9 conducted an inspection in the bank on 28.10.2002 and sent a detailed report (Ex.P13) to the Deputy Registrar, Tirupattur Zone. He also recommended for an enquiry under Section 81 of the Act. He suspended
the revision petitioner/accused on 01.11.2002.
6. Thiru.Bandari (P.W.10), the then Inspector of Police, Economic Offences Wing, Vellore, received a complaint from Thiru.Kirupanandam (P.W.1) with regard to the misappropriation of EPF funds by the present revision petitioner to the tune of Rs.1,89,452/-. He registered an FIR in Crime No.12/2003 for the offences punishable under Sections 409, 477A IPC (Ex.P14). He took up investigation and examined all the witnesses and recorded their statements individually under Section 161 Cr.P.C. After completing investigation, he laid a final report against the revision petitioner / accused on 30.09.2004 before the Judicial Magistrate No.II, Vellore. When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing in evidence against him, the accused denied of having committed any offence. However, he did not examine any witness on his side.
7. The learned trial court judge after analysing the oral and
documentary evidence adduced on both sides, convicted the accused for the offence under Section 408 IPC and sentenced him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for one month. The sentence already undergone by the revision petitioner was set off under Section 428 Cr.P.C.
8. Aggrieved over the same, the revision petitioner/accused filed an appeal in C.A No.119/2012 before the I Additional District and Sessions Court, Vellore. The learned I Additional District and Sessions Judge, Vellore confirmed the conviction and sentence passed by the Trial Judge, as against which, the present criminal revision is filed.
9. Heard Mr.S.Sairaman, learned counsel for the revision petitioner and Ms.A.Shahana Fathima, learned Government Advocate (Crl. side)
10. At the outset, it may be kept in mind that this Court while
exercising its jurisdictional power under Section 397 Cr.P.C. cannot act as a second appellate court unless it is convinced that the conviction and sentence passed by both the Courts below are perverse.
11. Mr.S.Sairaman, learned counsel for the revision petitioner would contend that the prosecution had failed to file the original enquiry report under Section 81 of the Act and also the Day Book maintained by the Co-operative Society Bank. He drew the attention of this Court to the evidence of PW.7 and contended that even P.W.7 admitted that there are corrections in the original enquiry report under Section 81 of the Act and in these circumstances, marking of the original enquiry report was absolutely necessary which the prosecution had failed to adduce.
12. It was also pointed out that subsequent to the enquiry under Section 81 of the Act, the present revision petitioner paid the entire amount alleged to have been misappropriated by him. However, the revision petitioner was dismissed from service without serving a copy of the domestic enquiry report.
13. Per contra, Ms.A.Shahana Fathima, learned Government Advocate (Crl. side) would contend that both the Courts below had, after analysing the oral/documentary evidence, rightly convicted and sentenced the revision petitioner and therefore, no interference is called for by this court and prayed for dismissal of the Criminal Revision Case.
14. In the instant case, Sakkarapani (P.W.8), Superintendent of Kommeswaram Primary Agricultural Co-operative Bank conducted a surprise inspection on 09.09.2002 and found misappropriation of EPF funds by the present revision petitioner as stated above.
15. Thiru.Raviraj (P.W.7) in his enquiry report had given the details of misappropriation of funds from the bank by the revision petitioner. A copy of the enquiry report was filed before the trial court. The correction made in the enquiry report do not go to the roots of the case of prosecution for the trial court to direct the prosecution to summon the original enquiry report. When the evidence on record substantiates
the contention of the prosecution there is no need for summoning the Day Book of the Bank. Moreover, more than one official made investigation at different points of time and detected the misappropriation.
16. The appellate court had in fact dealt with these aspects and had observed thus :
" The PW6 also deposed that after sale of goods, he handed over the empty gunny bag purchaser as per the instruction of the appellant. The P.W.6 also gave Ex.P9 statement before the inquiry officer stating that as per the oral instruction of the appellant, he handed over the empty gunny bag to the purchaser sent by him and retained another copy at fair price shop and this evidence was not denied by the appellant. The Ex.P7 is the receipt issued by the appellant for receiving empty gunny bags and the same was recorded in stock register at page No.90, 92 and 93. The stock register also marked as the Ex.P8 and the Ex.P9 statement before the Inquiry officer also proved the empty gunny bags were sold by the appellant in open market. The appellant contended that there will be 10 to 15% damages in the returned gunny bags. The PW6 also admitted that there is a possibility for the damages of 10 to
15% in the returned gunny bags. The appellant not proved the alleged damages in the gunny bags by documentary evidence. Moreover, the appellant not produced the sale amount of the empty gunny bags. At the time of Sec.81 enquiry, it is noted the returned gunny bags not available in the bank and it shows the appellant sold the same in open market. This appellant not produced any documentary evidence showing before the enquiry officer to show the actual sale amount was remitted in to the concerned head of the account. Therefore, it is very clear, this appellant sold the empty gunny bags and not remitted the amount in the bank account.
8. The PW5 is working as a clerk in the Co-operative bank. He also admitted that the sales man produce the copy of letter showing the handing over of the empty gunny bag by the sales men to the person engaged by the appellant and return of the empty gunny bags by the salesman of fair price shop recorded in stock register. The Ex.P6 is the Salesman liability register marked through the PW5. The PW5 also clearly deposed in cross examination that the appellant not accounted the sale amount into the concerned head of account. The enquiry officer also clearly deposed the appellant misappropriated the sale amount of the empty gunny bag".
17. The above observation of the appellate court cannot be said to be perverse and therefore I do not find any reason to interfere with the concurrent findings recorded by both the Courts below. Therefore, the conviction under Section 408 of IPC by both the Courts below is hereby confirmed. As regards the sentence, it is seen from the records that the case was registered in the year 2003 and judgement in C.A.No.119/2012 was pronounced in the year 2016. Since he had already faced ordeal of trial from the year 2003 to 2016 the accused is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.500/- in default, to undergo simple imprisonment for two weeks. The revision petitioner/accused shall surrender before the Judicial Magistrate No.2, Vellore, within 15 days from the date of receipt of a copy of this order / uploading of the order, failing which, the Trial Court shall take steps to secure him for undergoing the sentence.
18. In the result, (i) This Criminal Revision Case is partly allowed. (ii) While the conviction passed by the trial court is confirmed
the sentence is modified as under:
Conviction Sentence Section 408 IPC Rigorous Imprisonment for a period of three months and to pay a fine of Rs.500/-, in default, to undergo Simple Imprisonment for two weeks.
(iii) The sentence already undergone by him is set off under Section 428 Cr.P.C.
(iv) The sentence shall run concurrently.
(v) The revision petitioner/accused shall surrender before the Judicial Magistrate No.II, Vellore, within 15 days from the date of receipt of a copy of this order / uploading of the order, failing which, the Trial Court shall take steps to secure his presence for serving the remaining period of sentence.
03.04.2024 (5/11) Index: Yes/No
Internet: Yes/No Speaking/Non-Speaking order mtl To 1.The I Additional District and Sessions Judge, Vellore. 2.The Judicial Magistrate No.2, Vellore.
3.The Section Officer, Criminal Section, Madras High Court, Chennai.
R. HEMALATHA, J.
mtl 03.04.2024