Judgment
CRA S-1112-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) CRA S-1112-SB of 2003. Date of Decision:
16. 1.2014. Harbhajan Singh .... Appellant Versus State of Punjab .... Respondent (2) CRA S-1113-SB of 2003. Date of Decision:
16. 1.2014. Harbhajan Singh .... Appellant Versus State of Punjab .... Respondent (3) CRA S-1114-SB of 2003. Date of Decision:
16. 1.2014. Harbhajan Singh .... Appellant Versus State of Punjab .... Respondent (4) CRA S-1115-SB of 2003. Date of Decision:
16. 1.2014. Harbhajan Singh .... Appellant Versus State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE K.C. PURI Present: Mr. J.S. Brar, Advocate, for the appellants. Mr. S.S. Chandumajra, Sr. DAG, Punjab. K.C. PURI.J.
Vide this judgment, I intend to dispose of four criminal Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court CRA S-1112-SB of 2003 2 appeals titled as Harbhajan Singh vs. State of Punjab bearing Criminal Appeals No.S-1112-15-SB of 2003 .
2. However, for convenience, the facts are taken from Criminal Appeal No.S-1112-SB of 2003.
3. All these appeals have been directed against four separate judgments and orders dated 31.5.2003 arising out of the same FIR passed by Special Judge, Moga. In each case, the accused appellant was convicted under Section 408 IPC and Section 13(1)(C) and (D) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo imprisonment and fine as under:- Offence Sentence Fine In default 408 IPC RI for 4 years Rs.8000/- RI for 1 year 13(1)(C) & (D) RI for 2 years Rs.2000/- RI for 6 months r/w Section 13(2) of PC Act, 1988 4. Both the sentences were ordered to run concurrently.
5. Briefly stated, on 30.3.1998, Babu Singh, the then DSP, Vigilance Bureau, Moga received secret information that the accused appellant, who was working as Cashier in the Daudhar Cooperative Agricultural Service Society Limited, Daudhar had been embezzling different amounts of its members since 1991 and had received money from the members but made wrong entries in the pass-books and other books of the society. He had made entry of less amounts in the ledger and other account books than the amounts received by him. He had also kept the amounts with him and deposited the same after 2-3 years.
6. Investigation was conducted and from the investigation, it revealed that in the year 1991, the accused has embezzled the amount of Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court CRA S-1112-SB of 2003 3 Rs.40,924/- belonging to 28 members with effect from 6.3.1991 to 28.10.1991. In the year 1992, he had embezzled Rs.11,699/- belonging to 11 members. In the year 1993, he had embezzled Rs.22,999/- belonging to 11 members. In the year 1994, he had deposited the less amount to the extent of Rs.29,041/- belonging to 21 members. In this manner, Harbhajan Singh accused had embezzled total amount of Rs.1,05,032/- belonging to 68 members. In view of Section 223 of Code of Criminal Procedure, four separate challans for each year were submitted against the accused appellant after investigation.
7. The copies of the documents as relied upon by the prosecution were supplied to the accused free of cost as required under Section 207 of the Code of Criminal Procedure.
8. Learned Special Judge framed charge under Section 409 IPC and Section 13 (1)(C) and (D) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the accused in all the four cases.
9. The evidence was recorded in all the four cases separately.
10. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C and all the incriminating evidence was put to him to which he denied. He stated that due to political revelry, he has been implicated. The society was working as a team and was governed by resolutions. He has not mis-appropriated any amount and it was an adjustment of the amount as per procedure of the committee. In the inquiry held by the Co-operative Society and Tulsa Singh, Inspector, he has been exonerated.
11. He was called upon to lead defence evidence and he has produced some defence evidence as detailed in the judgment. Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court CRA S-1112-SB of 2003 4 12. The learned trial Court after appraisal of the evidence, found the accused guilty under Section 408 IPC and Section 13(1)(C) and (D) read with Section 13(2) of Prevention of Corruption Act, 1988 in all the four cases and sentenced him to undergo imprisonment and fine as narrated above in each case.
13. Feeling dis-satisfied with the above said four judgments, the accused appellant has preferred the four appeals.
14. Learned counsel for the appellant has submitted that sanction against the appellant is not duly proved. Previously, the prosecution examined one witness who has not supported the case of the prosecution. Thereafter, another witness Nirmal Singh was examined to prove the sanction. The sanction is result of non-application of mind.
15. I have carefully considered the said submission but do not find any substance in that submission.
16. The sanction is duly proved and it has been accorded by the Society consisting of the President, Vice President and all the members. The Society was the appointing authority of the appellant and as such, the aforesaid argument regarding sanction is liable to be ignored.
17. Learned counsel for the appellant has further submitted that defence witness Tulsa Ram has categorically stated that no embezzlement was made by the appellant, since in the departmental proceedings, the appellant has been exonerated so, no criminal offence is made out against the accused.
18. I have carefully considered the said submission but do not find any force in that submission.
19. Learned trial Court has elaborately dealt with this aspect of the case. The Trial Court has observed that Tulsa Ram has not examined Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court CRA S-1112-SB of 2003 5 any member whose amount have been embezzled. In the absence of examining the members, whose amount have been mis-appropriated, the report is incomplete. Otherwise also, the case of the prosecution is that he used to make entry in the passbook correctly but used to deposit less amount in the account of the members. That fact is duly proved from the evidence on the file and even during the course of arguments, that aspect of the case has not been assailed by the counsel for the appellant.
20. So, the above said arguments are also without any substance and stands rejected.
21. Learned counsel for the appellant has further submitted that according to the evidence on the file, the Society was competent to keep an amount of Rs.50,000/- in respect of the payment of salaries and other misc. expenses. If any amount has been kept by the appellant as Cashier, it cannot be said to be embezzlement.
22. I have carefully considered the said submission but do not find any force in that submission.
23. Learned trial Court has rightly observed that the appellant has not produced the record regarding payment of salaries or any other expense. Otherwise also, a sanction regarding the amount has to be taken for withdrawing the amount from the account of the Society. There is no such sanction. Otherwise also, the case of the prosecution is that the appellant used to show less amount taken from the members and that fact clearly proves the embezzlement at the hands of the appellant.
24. Lastly, learned counsel for the appellant has submitted that even according to the case of the prosecution, the amount in question has been deposited by the appellant. The appellant is aged about 62 years. The embezzlement relates to the year 1991-94 and the FIR was registered in Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court CRA S-1112-SB of 2003 6 1998 and since then the appellant has been facing the agony of protracted trial so, the prayer has been made for taking a lenient view regarding quantum of sentence.
25. I have considered the said submission.
26. The accused appellant is stated to have deposited the embezzled amount. The occurrence relates to 15 years back. However, at the same time, this Court cannot ignore the factum of embezzlement at the hands of the appellant.
27. So, considering all these circumstances mentioned above, the sentence of the appellant under Section 408 IPC in all the four cases stands reduced to two years instead of four years as awarded by the trial Court. However, the sentence of imprisonment and fine under Section 13(1)(C) (D) and Section 13(2) of Prevention of Corruption Act, 1988 and sentence of fine under Section 408 IPC in all the four cases stands confirmed.
28. However, it is clarified that the sentence of the appellant under Section 13(1) (C) (D) and Section 13(2) of Prevention of Corruption Act, 1988 and Section 408 IPC in all the four appeals shall run concurrently. It is further ordered that since the accused is facing trial in all the four cases arising out of the same FIR and as such, the sentence of all the four cases is ordered to run concurrently.
29. With the above said modification, all the appeals stand disposed of.
30. A copy of this judgment be sent to the trial Court for strict compliance. 16.1.2014. (K.C. PURI) SN JUDGE Sanjay 2014.02.13 14:41 I attest to the accuracy and integrity of this document Punjab and Haryana High Court