Madras High Court
S. Venkatesan vs State By on 15 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.Nos.174 & 175 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.Nos.174 & 175 of 2015
Crl.R.C.No.174 of 2015
1. S. Venkatesan
2. S. Govindarajan ... Petitioners
Vs.
State by
The Sub-Inspector of Police,
District Crime Branch,
Nagapattinam, Nagapattinam District.
Crime No.8/2002 ... Respondent
Prayer: Criminal Revision Case is filed under Section 397 and 401 of
Cr.P.C., to set aside the conviction and sentence imposed by the District and
Sessions Judge in Criminal Appeal No.44/2012 dated 22.01.2015 on the file
of District and Sessions Court, Nagapattinam confirming the conviction
made in C.C.No.146/2012 on the file of Judicial Magistrate No.I,
Nagapattinam.
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Crl.R.C.Nos.174 & 175 of 2015
For Petitioners : Mr. G.M. Shankar
For Respondent : Mr. N.S. Suganthan
Government Advocate (Crl.Side)
Crl.R.C.No.175 of 2015
1. S. Venkatesan ... Petitioner
Vs.
State by
The Sub-Inspector of Police,
District Crime Branch,
Nagapattinam, Nagapattinam District.
Crime No.8/2002 ... Respondent
Prayer: Criminal Revision Case is filed under Section 397 and 401 of
Cr.P.C., to call for the records and set aside the conviction and sentence
confirmed by the District and Sessions Judge in Criminal Appeal
No.43/2012 judgment dated 22.01.2015 on the file of District and Sessions
Court, Nagapattinam confirmed in C.C.No.145/2012 on the file on Judicial
Magistrate-I, Nagapattinam.
For Petitioner : Mr. G.M. Shankar
For Respondent : Mr. N.S. Suganthan
Government Advocate (Crl.Side)
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Crl.R.C.Nos.174 & 175 of 2015
COMMON ORDER
The revision petitions are filed against the concurrent findings of the Courts below holding the petitioners guilty of offences under Sections 408, 420, 468 & 477(A) r/w 34 IPC.
2. The short facts of the case is that the first petitioner is the Secretary of Thiruvali Primary Agricultural Co-operative Bank and the second petitioner is a Member of the Bank. They both with common intention to misappropriate the bank fund started saving bank account, in the name of second accused by depositing a sum of Rs.13,500/- on 31.03.1995 and false entry was made in the daily registration dated 15.07.1995 in the account of second accused as if, there is a balance of Rs.39,500/- in A2's account and withdrawal cheque in the name of A2 for Rs.26,000/-, was cleared by A1 and paid, fully knowing well that A2 had no fund in his account to clear the withdrawal cheque of Rs.26,000/-.
3. A complaint was filed in this connection by P.W.1- Muthamizh Arasu, the Deputy Registrar, Co-operative Societies of Mayiladuthurai on 04.07.2002, same was registered on 05.12.2002 in Crime No.8/2002 and taken up for investigation. During the course of investigation, the misappropriation of 3/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 fund in the manner explained by P.W.1 came to light which was supported by the enquiry conducted under Section 81 of the Co-Operative Societies Act. Two final reports were filed for two different period for offences under Sections 467, 468, 471, 408, 420 and 477(A) and taken on file as C.C.No.146/2012 and against the first accused Venkatesan for offences under Sections 408, 420 and 477A IPC which was taken on file as C.C.No.145/2012. Both the cases were taken up together for trial by the learned Judicial Magistrate Court, Sirkazhi, on transfer of the case from Chief Judicial Magistrate, Nagapattinam vide R.O.C.No.37/2011 dated 05.09.2011. The Calender Cases were renumbered as C.C.No.856 of 2007 and C.C.No.837/2007.
4. Considering the witnesses and documents in both cases, the trial Court conducted joint trial, documents and evidence marked in C.C.No.836/2007 as common. Before the trial Court, prosecution has examined 14 documents and, on behalf of the accused 6 documents were marked. The first accused, Venkatesan entered into witness box and gave evidence.
5. The trial Court acquitted both the accused for offences under Sections 467 and 120B IPC but found them guilty for the offences under Sections 4/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 408, 420, 468 and 477A IPC r/w 34 IPC and convicted them to undergo six months simple imprisonment and fine of Rs.2,00/- for each of these charges. As far as fine, imposed for offences under Sections 408, 420 and 468 IPC, in default, sentence of one month prescribed. The trial Court ordered the substantive sentence to run concurrently.
6. Aggrieved by the judgment of conviction and sentence, the accused preferred appeal in C.A.No.44/2012 and C.A.No.43/2012 before the District and Sessions Judge, Nagapattinam. The said appeal came up and dismissed on 22.01.2015. Aggrieved, the present revision petitions are filed.
7. When the matter is taken up for final hearing, the learned counsel appearing for the petitioner submitted that the second appellant- Govindarajan died on 19.02.2022 and therefore, his appeal has become abated.
8. The learned counsel placing on record the demise of second petitioner/Govindarajan made his submission on behalf of the first petitioner, Venkatesan to emphasis that the Courts below have erred in appreciating the fact and had come to an erroneous conclusion holding that the petitioner is guilty of 5/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 offences under Sections 408, 420 and 468 of IPC. Learned counsel primarily contended that even before filing of the complaint on 04.07.2002, the sum alleged to have been misappropriated has been remitted and on the date of complaint, there was no cause of action. This fact was being admitted by P.W.1, the defacto complainant, P.W.3 and P.W.4 and P.W.5 that expecting launch of the prosecution they remitted the money alleged to have been misappropriated even before commencement of Section 81 enquiry. The complaint dated 04.07.2002 after enquiry/Ex.P6 is a malafide complaint and admittedly, there is no loss to the bank. The prosecution is per se malicious and therefore, the judgment of conviction and sentence to be set aside.
9. Per contra, learned Government Advocate (Crl.Side) would submit that the conduct of the petitioner would, at the relevant point of time, by making false entry in the account of the second accused and permitting him to withdraw over and above his balance, is a sufficient reason and proof for convicting the petitioner for offences under Sections 408, 420 and 468 IPC. The remittance of the money misappropriated, after the crime came to light, only proves the culpable mental state of the petitioner. The complaint was lodged after the completion of Section 81 enquiry so as to enable the investigation agency to 6/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 proceed and prosecute the petitioner for the act of crime.
10. Heard the rival submissions and perused the records.
11. The first petitioner was the Secretary of the said bank during the relevant point of time. It is not disputed that Section 81 enquiry commenced, pursuant to the proceedings of the Deputy Registrar dated 01.08.2000 and got completed on 27.04.2001. The enquiry report is marked as Ex.P6 through P.W.6/the Joint Registrar. The entries in the Saving Account in the name of the second accused, Govindarajan and in the name of the first accused, Venkatesan, who is the first petitioner herein indicates withdrawal of money against Ex.P10 series without fund in the respective account. To add to this evidence, it is admitted by the petitioner herein that he has already remitted the money misappropriated by him.
12. In the light of the above fact, this Court finds that through Exs.P7 and P9, the Saving Account Register and Ex.P10, the withdrawal slips and cheque, the prosecution has proved the misappropriation of fund by abusing the trust on the Clerk of the society for the offence under Section 408 IPC who has 7/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 fabricated the entries in day register/Ex.P11. This proves the charge under Section 420 and 468 IPC. Therefore, this Court finds no error in the finding of the Courts below.
13. The counsel for the petitioner pleads that the prosecution witnesses have admitted that the Bank has not suffered any monetary loss, while so, the petitioner who is now aged 70, need not be punished severely and sought for modification of the sentence for his temporary misappropriation and breach of trust.
13. Taking note of the above plea, this Court, while confirming the conviction of the first petitioner for the offence under Sections 408, 420, 468 & 477(A) r/w 34 IPC and taking note of the punishment prescribed for the said offence, the petitioner is sentenced to undergo simple imprisonment for a period of 30 days and pay a fine of R.200/- in default, 7 days simple imprisonment for each of the offence. The substantive sentence shall run concurrently. The time to surrender is granted up to 07.08.2022, failing which the trial Court shall secure the first petitioner and commit him to prison to undergo the balance period of sentence.
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14. Accordingly, the revisions are partly allowed.
15.07.2022 AT Internet : Yes Index : Yes/No Speaking / Non-speaking To
1.The District and Sessions Court, Nagapattinam.
2.The Judicial Magistrate No.I, Nagapattinam..
3.The Sub-Inspector of Police, District Crime Branch, Nagapattinam, Nagapattinam District.
9/10 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.174 & 175 of 2015 Dr.G.JAYACHANDRAN,J.
AT Crl.R.C.Nos.174 & 175 of 2015 15.07.2022 10/10 https://www.mhc.tn.gov.in/judis