Punjab-Haryana High Court
Kamlesh Devi vs State Of Punjab on 9 March, 2011
Author: Alok Singh
Bench: Alok Singh
Crl. Revision No. 143 of 2011 &
Crl. Revision No. 150 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Revision No. 143 of 2011
Date of Decision : March 9, 2011
Kamlesh Devi ...... Petitioner
Versus
State of Punjab ...... Respondent
And
Crl. Revision No. 150 of 2011
Kamlesh Devi ...... Petitioner
Versus
State of Punjab ...... Respondent
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CORAM : HON'BLE MR. JUSTICE ALOK SINGH
1. Whether reporters of local news papers may be allowed to see
judgement ?
2. To be referred to reporters or not ?
3. Whether the judgement should be reported in the Digest ?
Present : Mr. Darshan Singh Malwai, Advocate,
for the petitioner.
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Alok Singh, J (Oral)
This order of mine shall dispose of two revision petitions bearing No. CRR No. 143 of 2011 titled as Kamlesh Devi Versus State of Punjab and CRR No. 150 of 2011 titled as Kamlesh Devi Versus State of Punjab since they arise out of the impugned judgment dated 12.1.2007 passed by learned Judicial Magistrate, 1st Class, convicting the accused- petitioner under Section 406 of the Indian Penal Code (in short 'IPC') and Crl. Revision No. 143 of 2011 & Crl. Revision No. 150 of 2011 2 sentencing him to undergo rigorous imprisonment for a period of 2 ½ years and to pay a fine of ` 3,000/- and in default of payment of fine to further undergo rigorous imprisonment for 3 months as well as the judgment dated 13.10.2010 passed by Additional Sessions Judge, Sangrur affirming the findings of the learned Magistrate.
The factual matrix necessary for the disposal of these petitions is that the Punjab State Co-operative Supply and Marketing Federation Ltd. (for short 'Markfed') had entered into an agreement with M/s New Goyal Rice Mill, Sherpur on 4.10.1994 for milling paddy of about 4000 MT and in pursuance of that agreement, Markfed Sangrur stored 38935 quintals of fine variety of paddy stock in 59900 bags during the year 1994-95 in the premises of M/s New Goyal Rice Mills, Sherpur. Out of the above said quantity of 38935 quintals of fine variety of paddy and 13657.15 quintals of paddy was issued to the miller for custom milling after allowing it driage of 273.14 quintals against rice delivered to Food Corporation of India against the accounts of Markfed equivalent to 8967.18 quintals of rice of fine variety. Due to stoppage of custom milling work, Government of India and Management of FCI decided in the month of April, 1985 to sell balance of paddy stocks lying in various rice mills through open sale @ ` 422/- per quintal for fine variety of paddy. Accordingly the miller purchased 2991.35 quintals of paddy @ ` 422/- per quintal and deposited total cost thereof in advance with the Markfed. During the months of June-July, 1995 FCI invited tenders for sale of balance paddy stock of all of the rice procuring agencies. M/s New Goyal Rice Mills, Sangrur did not participate in purchase of balance paddy stock as it did not file any tender. Sometime thereafter, FCI revised its policy again and fixed sale price of paddy stock of the year 1994-95 @ ` 375/- per quintal but management of Markfed instead Crl. Revision No. 143 of 2011 & Crl. Revision No. 150 of 2011 3 of selling its stocks at that rate invited fresh tenders in respect of balance stocks allotted by it to different rice mills. The tenders so invited by Markfed were opened on 25.8.1995 and this time M/s New Goyal Rice Mills submitted its tender over the rate of ` 385/- per quintal which tender was accepted and the miller purchased 9395.30 quintals of fine variety of paddy, deposited the cost and lifted that much of paddy. He was allowed 2% of driage as per governing rules of Markfed. Even thereafter 12636.35 quintals of paddy entrusted to the miller was still lying with it. Markfed Sangrur asked the miller, many a times, to deposit cost of balance stock of 12635.35 quintals of paddy at the approved rate but no response was given by the miller. In the first week of December, 1995 Incharge of Dhuri branch of Markfed informed his District Office that the miller had removed rice of balance paddy stock with it from its premises and sold it away at various stations mostly by hiring trucks from Dhanaula and Sherpur Truck Operators Unions. The complainant responded to the information so given by the Incharge, Dhuri branch of Markfed by visiting premises of the accused miller alongwith its Technical Officer and conducted physical verification of the stocks to find that 1090 MTs of fine variety of paddy was short, worth ` 46 Lakhs. At that time neither owner of the Mill nor any of its representative was available at the time of physical verification and the physical verification report was signed by a relation of the rice mill owner. Father-in-law and brother-in-law of owner of the mill of Kamlesh Devi were present at the time physical verification but they refused to append signatures on physical report. Thereafter District Manager, Markfed Sangrur had been asking the Miller to deposit total cost of missing stock but it had deposited only ` 12 Lakhs against the total payable amount of Crl. Revision No. 143 of 2011 & Crl. Revision No. 150 of 2011 4 ` 46.16 Lakhs. Initially promises were made to deposit balance recoverable amount by 20.2.1996 but this promise was not kept.
On the basis of this complaint a case was registered by the police. Initially, a cancellation report was filed on 27.4.1997, but on further investigation the accused-petitioner was found guilty and was challaned. Charge sheet under Section 406 IPC was served upon the accused to which she did not plead guilty and claimed trial.
Prosecution in support of its case examined as many as 16 witnesses. After closure of the prosecution evidence, statement of the accused under Section 313 of the Code of Criminal Procedure (in short 'Cr.P.C.') was recorded, wherein she had pleaded false implication. The petitioner examined DW1 Head Constable Gulshan Singh in her defence. The learned trial Court after appreciating the evidence available on record convicted and sentenced the petitioner under Section 406 IPC as noticed above.
Learned counsel for the petitioner has argued that an agreement was entered into between the Markfed and the Company of the petitioner for milling the paddy and such it was purely a civil nature dispute but the Markfed has given a colour of criminal offence. He further argued that the District Manager of the Markfed has not conducted any inquiry at his own level before getting the FIR registered nor he has made any physical verification, but both the Courts below have ignored all these facts while coming to the conclusion and have wrongly held her guilty under Section 409 IPC and as such the impugned judgements passed by both the Courts below are liable to be set aside.
I have heard the learned counsel for the petitioner and have gone through the records.
Crl. Revision No. 143 of 2011 & Crl. Revision No. 150 of 2011 5 I have given my thoughtful consideration to the arguments raised by the learned counsel for the petitioner and find that the same are liable to be noticed only for the sake of rejection. Admittedly, the Company of the petitioner entered into an agreement with the Markfed for milling paddy and on a physical verification conducted by PW12 Kulwant Singh, the then Field Officer of Markfed, 1090 MT was found short. When the accused petitioner was asked to account for the missing paddy, she did not pay any heed. Under such circumstances, ingredients of Section 406 IPC are made out against the petitioner. The contention of the learned counsel for the petitioner that instead of filing a criminal case against the petitioner the complainant should have approached the Civil Court, is liable to be rejected merely on the ground that the complainant has the liberty to approach the Civil Court as well as the Criminal Court simultaneously. The petitioner cannot be granted any benefit merely on the ground that the complainant was having the civil remedy to recover ` 34.16 Lakhs by filing the civil suit. It would not be out of place to mention here that civil and criminal remedies are independent remedies which can be availed by the aggrieved party at the same time. The learned trial Court as well as the learned lower Appellate Court after going through the evidence available on the record came to the conclusion that the petitioner was entrusted the 59900 bags of paddy, weighing 38935 quintals of fine variety, out of which she misappropriated paddy weighing 1090 MT, having the price of ` 46.16 Lakhs.
Moreover, learned counsel for the petitioner has not been able to point out any illegality or infirmity either in the procedure or in the conduct of the trial. As such there is no justification for this Court to interfere in exercise of its revisional jurisdiction. In the revisional jurisdiction, this Court cannot reappreciate the evidence to reach the finding Crl. Revision No. 143 of 2011 & Crl. Revision No. 150 of 2011 6 different from the trial Court. In the absence of any manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
In the final analysis, there is no merit in both the revision petitions and the same are hereby dismissed.
(Alok Singh) Judge March 11, 2011 Anand