Bombay High Court
F.D.C.M.) Ballarshah vs State Of Maharashtra on 18 December, 2009
Author: S. S. Shinde
Bench: S. S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR
Criminal Revision Application No. 160/2003
Azamtullah s/o Asatullah Sheikh,
aged 54 years, Range Forest Officer,
Forest Development Corporation Ltd.
(F.D.C.M.) Ballarshah,Dist. Chandrapur.
.. APPLICANT
.. Versus ..
State of Maharashtra, thr. Police Station
Officer, Police Station, Ballarshah,
Dist. Chandrapur. .. NON APPLICANT
---------------------------------------------------------------------------------
Mr. G. S. Bapat, Advocate for applicant.
Mr. S. S. Doifode, A.P.P. for non applicant.
---------------------------------------------------------------------------------
CORAM:- S. S. SHINDE, J.
Date of Reserving the Judgment:- 10.12.2009
Date of Pronouncing the Judgment:- 18.12.2009
JUDGMENT
1. This revision application is filed challenging judgment and order of conviction dated 30.08.2003 passed by Additional Sessions Judge, Chandrapur in Criminal Appeal No. 55/1995 confirming judgment and order of conviction dated 18.07.1995 in Regular Criminal ::: Downloaded on - 09/06/2013 15:26:54 ::: 2 Case No. 210/1984 passed by Chief Judicial Magistrate, Chandrapur convicting the accused for the offence punishable under Sections 420, 409 and 477-A of the Indian Penal Code. Brief facts of the case are as under.
2. The applicant-accused was working as Range Forest Officer in Technical Division the Forest Department.
However, he was serving on deputation in Forest Development Corporation at Ballarshah. He was assigned the work of making payment of the workers under him from time to time and to serve the same purpose the Corporation has given him advance.
The applicant/accused submitted the accounts for the month of January and February in respect of said advance to his office on 27.02.1980. After verifying the accounts, it was found that accused by No. PTB/28/1/80 dated 27.01.1980, an amount of Rs.72,500/- has shown as transfer to one N.A.S. Faruki, Range Forest Officer, Pediguddam Division, Alapalli.
It is further submitted by the applicant that when complainant-Divisional Manager Shri P. D. Ambaskar ::: Downloaded on - 09/06/2013 15:26:54 ::: 3 made enquiry with the concerned Divisional Office at Pediguddam, he found that no such amount of Rs.72,500/-
was given to N. A. S. Faruki. It is alleged that the accused, instead of crediting the amount of Rs. 72,500/-, which is the Government money, to Treasury or to the superior officer, misappropriated same by showing that said amount has been paid by him to N.A.S. Faruki.
The complainant lodged report against the accused in Police Station, Ballarshah on 01.03.1980.
Police Station, Ballarshah carried out necessary investigation pertaining to the offence, collected necessary documents, recorded statements of witnesses concerning the offence and submitted the charge-sheet against the accused.
Learned Magistrate framed charge under Sections 409, 420 and 477-A of the Indian Penal Code vide Exh.-9. Contents of Charge were read over and explained to accused, who pleaded not guilty and claimed to be tried. His defence was that though he was having Government money to the extent of Rs. 72,500/-, he paid the same to N.A.S. Faruki, Range Forest Officer, ::: Downloaded on - 09/06/2013 15:26:54 ::: 4 Pediguddam, as per oral instructions of his superior P.D.Ambaskar and thus claimed himself to be innocent.
It is an admitted fact that the applicant/ accused was working as Range Forest Officer and was on deputation in Forest Development Corporation at Ballarshah. He also admitted that he was having amount of Rs. 72,500/-, the Government money collected by him for and on behalf of the Forest Department. Learned Magistrate framed necessary points for determination and after appreciating evidence brought on record and after hearing rival contentions, by judgment and order dated 18.07.1995 convicted the applicant/ accused under Section 420, 409 and 477-A of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- in default to suffer S. I. for three months for the offence punishable under Section 420 of the Indian Penal Code. Rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default to suffer S.I. for three months for the offence punishable under Section 409 of the Indian Penal Code. Rigorous Imprisonment for two years and to pay a fine of ::: Downloaded on - 09/06/2013 15:26:54 ::: 5 Rs. 1,000/- in default to suffer S.I. for three months for the offence punishable under Section 477-A of the Indian Penal Code.
Being aggrieved by judgment and order passed by learned Chief Judicial Magistrate, Chandrapur, the applicant herein filed Criminal Appeal No. 55/1995 before the Court of Sessions at Chandrapur. The learned Sessions Court, Chandrapur by his judgment and order dated 30.08.2003 partly allowed the appeal filed by applicant herein. Judgment of the learned Magistrate in Regular Criminal Case No. 210/1984 convicting the applicant/accused under Section 420 of the Indian Penal Code and sentencing him to suffer R.I. for two years and to pay a fine of Rs. 1,000/- in default to suffer S. I. for three months came to be set aside. Fine of Rs. 1,000/-
paid by accused for the offence punishable under Section 420 of the Indian Penal Code was directed to be returned to the applicant after appeal period is over. So far as order passed by learned Magistrate convicting the applicant-accused for the offence punishable under Section 409 and 477-A of the Indian Penal Code, the same ::: Downloaded on - 09/06/2013 15:26:54 ::: 6 is confirmed by the appellate Court. Hence, this revision is filed by the applicant.
3. Learned counsel for the applicant submitted that on 27.01.1980, as per oral order of the Divisional Manager (PW3), accused paid the amount of Rs. 72,500/-
to N.A.S. Faruki (PW5) Range Forest Officer, Pediguddam Division, Alapalli and obtained the receipt on back side of Exh.-24.
It is further submitted that PW5 dishonestly refused to have received said amount from the accused and, therefore, on 01.03.1980 concerned Divisional Manager at Pediguddam Shri P. D. Ambaskar (PW3) lodged complaint (Exh.-26) with Police Station Ballarshah alleging therein that the applicant/accused has misappropriated amount of Rs. 72,500/-. According to learned counsel, there was delay of more than a month in lodging First Information Report and there is no plausible explanation for the said inordinate delay which is fatal to the prosecution and, therefore, applicant ought to have been acquitted by the Courts.
::: Downloaded on - 09/06/2013 15:26:54 ::: 74. Learned counsel for the applicant further submitted that the learned Magistrate was not competent to try the offence punishable under Section 409 and 477 of the Indian Penal Code and resultantly he was not also competent to frame charge for offence under these sections. Therefore, charge against the applicant at Exh.-9 being hit by Section 240 of the Code of Criminal Procedure was non est in the eyes of law and, therefore, both the Courts below ought to have held that the proceeding founded on Exh.-9 are vitiated and ought to have acquitted the accused on aforesaid counts respecting Ruling in Shankar..vs..State of Rajasthan 1984 Cri. L. J. NOC-70 (Raj.). It is further submitted that there was no compliance of mandatory provisions of Section 157 of the Code of Criminal Procedure and no plausible explanation has been given for its non-
compliance which is fatal to the prosecution in view of decisions of the Hon'ble Supreme Court. It is also further submitted that the accused is alleged to have forged the signature of N.A.S. Faruki (PW5) and made false complaint at Exh.-24. The prosecution referred document ::: Downloaded on - 09/06/2013 15:26:54 ::: 8 at Exh.-24 to the Handwriting Expert for examining the specimen signature, who gave his opinion on it. As such the whole prosecution was founded on document at Exh.-24 and when the Handwriting Expert had given his opinion in respect of it, the prosecution ought to have examined the handwriting expert but prosecution failed to do so and thus deprived the applicant/accused of his legal right to cross-examine him. It is further submitted that applicant/accused was public servant and alleged to have committed the offence while acting in discharge of his official duty and, therefore, as per section 197 of Criminal Procedure Code, prior sanction of Government of Maharashtra was necessary before taking cognizance.
The learned trial Court has gravely erred in taking cognizance of absence of prior sanction. Therefore, whole proceeding is void ab initio and the applicant/accused ought to have been acquitted obeying number of judgments by the Supreme Court on the point. It is further submitted that both the Courts below have erred in convicting the accused for the offence punishable under Section 409 and 477-A of the Indian Penal Code and, ::: Downloaded on - 09/06/2013 15:26:54 ::: 9 therefore, applicant/accused deserves acquittal quashing and setting aside judgment and order of conviction impugned in this revision by allowing this revision application.
5. On the other hand, learned A.P.P. for the State submitted that the prosecution case is that the accused was serving as Range Forest Officer in Technical Division of Forest Department and his work was to make payment of the workers and the persons working under him. The Forest Department Corporation, Ballarshah used to give him advance for the purpose of making payment. On 27.02.1980, the applicant/accused submitted account of advance of January and February, 1980. It was noticed that amount of Rs. 72,500/- was shown to have been transferred to N. A. S. Faruki, Range Forest Officer, Pediguddam Division, Alapalli. The concerned Divisional Manager of the Corporation, P. D. Ambaskar (PW3) has not given prior permission to pay said amount to N.A.S. Faruki (PW5). As such the accused has done his work without permission of the complainant with an ::: Downloaded on - 09/06/2013 15:26:54 ::: 10 intention to misappropriate said amount. Therefore, he has fabricated said receipt Exh.-24, which is not signed by N. A. S. Faruki PW5. PW5 has also stated that he has not received said amount and also has not signed on Exh.-24.
6. Learned A.P.P. has further submitted that on enquiry it is found that the accused has not given amount of Rs. 72,500/- to N. A. S. Faruki, Range Forest Officer, Pediguddam Division and, therefore, complainant lodged report. It is further submitted that the applicant/accused withdrawn the money without prior permission to transfer said amount from superiors i.e. complainant. It is further submitted that the cash books at Exh.-16 and 17 have been seized wherein there is entry in respect of amount of Rs. 72,500/- paid to N. A. S. Faruki (PW5) and said entry has been taken as per direction of applicant/ accused by the clerk of said office i.e. Prabhakar (PW1). So far as receipt Exh.-24 about payment of Rs.72,500/- dated 21.01.1980 is concerned, it has been seized from the office on 30.03.1980, at the time of seizure of said receipt P. D. Ambaskar (PW3) has signed on Exh.-24.
::: Downloaded on - 09/06/2013 15:26:54 ::: 117. Learned A.P.P. further submitted that the prosecution examined Prabhakar (PW1), clerk of the office of accused, who has specifically sated that he has written cash book Exh.-16 and 17 as per directions of applicant/ accused, wherein shown entry about payment of Rs.72,500/- to N.A.S. Faruki (PW5). Learned A.P.P. further submitted that P. D. Ambaskar (PW3)-Divisional Manager has specifically deposed that he has directed to Assistant Manager (PW4) to make enquiry about the entry in cash book of the accused wherein it is found that the accused has not made payment of amount of Rs. 72,500/- to N. A. S. Faruki (PW5) and even though shown it on Exh.16 and 17, said amount has been misappropriated. The learned A.P.P. further submitted that Mohd. Abdul Rauf Khan (PW4), Assistant Manager, Ballarshah has made enquiry about receipt book of the accused and it is found that the accused has not paid Rs. 72,500/- to N. A. S. Faruki (PW5) and even though taken entry in cash book Exh.-16 and 17 and misappropriated said amount. N. A. S. Faruki (PW5), Range Forest Officer, Pediguddam Division, Alapalli has specifically stated that he has not received amount of Rs.
::: Downloaded on - 09/06/2013 15:26:54 ::: 1272,500/- from applicant/accused as well as she has not signed on receipt about the payment i.e. Exh.-24 as such he denied signature on Exh.-24. Learned A.P.P. submitted that Shantaram Jagan (PW2)/Panch has proved about the seizure of cash book Exh.-16, 17 and 23. It is further submitted by learned A.P.P. that Manohar (PW6) is panch in whose presence specimen signature of N. A. S. Faruki (PW5) has been taken. Maroti (PW7), Ramesh (PW8), Maroti (PW0) and Sallaudin (PW10) are the panchas.
Ramesh (PW11) is Investigating Officer, who has deposed as per investigation done by him. Learned A.P.P. on the basis of evidence brought on record by prosecution and appreciated by both the Courts below submitted that there are concurrent findings of Courts below after appreciation of evidence brought on record and thereby applicant/accused came to be convicted under Section 409, 477-A of the Indian Penal Code. Therefore, learned A.P.P. would submit that no case is made out in the present revision application to interfere by upsetting concurrent findings recorded by Courts below. The learned A.P.P. further submitted that alleged act/offence ::: Downloaded on - 09/06/2013 15:26:54 ::: 13 committed by applicant is nowhere connected with his official duties and, therefore, there was no question of obtaining any sanction to prosecute the applicant/ accused. The learned A.P.P. further submitted that by this time, it is well settled by catenna of decisions of Hon'ble Supreme Court and this Court that sanction is required only if Government servant has done any act in discharge of his official duty. Therefore, learned A.P.P. would submit that the sanction to prosecute the applicant was not necessary. Therefore, the learned A.P.P. submitted that this revision is devoid of any merits and the same deserves to be dismissed.
8. I have heard learned counsel appearing for the applicant as well as learned A.P.P. at length. At this juncture, it would be relevant to refer to some of the judgments of this Court as well as Hon'ble Supreme Court on the point of scope of revision. This Court, in the case of Balkrishna Pandurang Moghe..vs..State of Maharashtra and anr; 1998 (3) Mh. L. J. 331, in para 31 of the judgment, has observed as under:-
::: Downloaded on - 09/06/2013 15:26:54 ::: 14"31. As indicated earlier, at the behest of the learned counsel for the petitioner, we have gone through the evidence and we find no illegality or perversity in the approach or findings of the two Courts below. We may only refer to few decisions on the limitations of the powers of this Court in a Criminal revision. In Duli Chand vs. Delhi Administration, AIR 1975 SC 1960, The Apex Court held in para 4 that the jurisdiction of the High Court in Criminal Revision Application is severely restricted and it cannot embark upon a reappreciation of the evidence. Similarly in Pathumma and anr vs. Muhammad, AIR 1986 SC 1436, the Apex Court held that High Court was in error in making reassessment of the evidence and holding that the child was not an illegitimate child while dealing with the application for maintenance under section 125 of the Code of Criminal Procedure. The High Court had, in its revisional jurisdiction, substituted its own findings and disturbed the finding recorded by the learned Magistrate on the question of fact. This was not approved by the Apex Court and order of the High Court was set aside. In State of Karnataka vs. Appa Balu Ingale and others, 1993 Cri.L.J. 1029, the Apex Court held that when the Trial Court and ::: Downloaded on - 09/06/2013 15:26:54 ::: 15 the Appellate Court had, on appreciation of the evidence on record, reached a concurrent finding that charge against the respondent accused was proved beyond reasonable doubt, ordinarily it was not open to the High Court to interfere with the concurrent findings of fact recorded by the two Courts below by reappreciating the evidence in a revisional jurisdiction. The Apex Court, therefore, allowed the appeal and set aside the order of the High Court and restored that of the Appellate Court."
The Hon'ble Apex Court, in the case of State of Maharashtra ..vs.. Jagmohan Singh Kuldip Singh Anand and others with Satish Kaur Sahni ..vs..
Jagmohan Singh Kuldip Singh Anand and others;
(2004) 7 Supreme Court Cases 659; held that the revisional powers of the High Court cannot be exercised as second appellate power. In exercise of revisional power the High Court cannot undertake indepth and minute re-examination of entire evidence and upset concurrent findings of trial court and first appellate court.
In the case of Raj Kumar ..vs.. State of Himachal Pradesh; (2008) 11 Supreme Court Cases 76. In ::: Downloaded on - 09/06/2013 15:26:54 ::: 16 para 10 of the Hon'ble Apex Court observed as under:-
"10. In State of Orissa v. Nakula Sahu it was held that the High Court should not have interfered with the concurrent findings recorded by the trial court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the trial court or the Sessions Judge."
In the igcase of Ghanshyam s/o Vithal Garje ..vs.. State of Maharashtra; 2009 (1) Mh. L. J.
(Cri.) 299 in para 11 held that, "The Revisional Court cannot reappreciate the evidence in the exercise of the Revisional jurisdiction. The Apex Court in Duli Chand vs. Delhi Administration, AIR 1975 SC 1960, held that jurisdiction of the High Court in Criminal Revisional jurisdiction is severely restricted. It is held that the High Court cannot embark upon reappreciation of evidence in the exercise of Revisional jurisdiction. It is also well settled that the Revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest ::: Downloaded on - 09/06/2013 15:26:54 ::: 17 error or patent error committed in ignorance of law which has resulted in flagrant miscarriage of justice. The concurrent findings of facts cannot be disturbed, ordinarily, in the exercise of Revisional jurisdiction unless it is demonstrated that the findings are based on perfunctory appreciation and the process of finding is without well grounded reasoning...."
The Hon'ble Apex Court in the case of State of Karnataka ..vs.. Appa Balu Ingale and others;
AIR 1993 Supreme Court 1126; held that the concurrent findings arrived at by two Courts below are not to be interferred with by the High Court in the absence of any special circumstances or unless they are perverse.
On perusal of the aforesaid pronouncements, the scope of revision is limited. keeping in view the aforesaid pronouncements of the Apex Court and this Court, the present revision application required to be considered.
9. At this stage, it would be relevant to mention that there is procedure in department to transfer the ::: Downloaded on - 09/06/2013 15:26:54 ::: 18 amount from one division to another and said transfer is not permissible even within divisions unless permission of Divisional Manager is obtained. In this regard, the applicant/accused had taken a defence that he paid amount of Rs. 72,500/- to N. A. S. Faruki, Range Forest Officer, Pediguddam Division, Alapalli as per oral instructions of his superior i.e. Divisional Manager P. D. Ambaskar (complainant) and as such he has not misappropriated any amount and has not committed any offence.
10. It is an admitted position that for any financial transaction in the Department, as per Rules laid down, written permission/instructions are necessary. Therefore, in the absence of written instructions, if the applicant-
accused had withdrawn money that act itself is illegal and, therefore, there is no question of obtaining any sanction from appointing authority or State as the case may be since very act of the applicant/accused is illegal and is not part of his official duties. Therefore, the point raised by the applicant that there was no sanction to ::: Downloaded on - 09/06/2013 15:26:54 ::: 19 prosecute him, is devoid of any merit. Both the Courts have properly appreciated contention raised by the applicant as well as prosecution and correctly recorded the finding that in the present case, it was not necessary to obtain sanction to prosecute the present applicant/accused.
11. It is borne out from the facts on record that account of advance of January and February 1980 was submitted by applicant on 27.02.1980. Immediately, thereafter on 01.03.1980, First Information Report was lodged. The courts below have scrutinized and appreciated the evidence of the prosecution witness and after giving proper opportunity to the applicant-accused to defend his case, both the Courts have convicted the applicant/accused under Section 409 and 477-A of the Indian Penal Code. It has come in the evidence of Prabhakar (PW1) that, the Range Forest Officer has no authority to transfer any amount to different division without obtaining sanction from Divisional Manager.
Prabhakar (PW1) specifically deposed that Exh.-18 was ::: Downloaded on - 09/06/2013 15:26:54 ::: 20 completed by accused in his own handwriting. The evidence of Prabhakar (PW1) has not been challenged by accused in cross-examination. Panchanama Exh.-23 under which cash book was seized is proved by Shantaram Jagan (PW2). He also stated that apparently (receipt at Exh.-24) was also seized in his presence. On scrutiny of the account, it was found that the amount of Rs. 72,500/-
was shown to have been transferred by accused-applicant to N. A. S. Faruki, and, therefore, he instructed Mohd.
Abdul Rauf Khan (PW4) to verify the account. Mohd.
Abdul Rauf Khan has stated that said N. A. S. Faruki, was not working in his Division and, therefore, payment was not permissible as per rules. Mohd. Abdul Rauf Khan (PW4) on verification found that no such transaction took place and there was no entry in the cash book of Pediguddam Division. It has come in his evidence that the Divisional Manager of Pediguddam Division was ignorant of the transaction and as such he made complaint on 01.03.1980 to Police Station, Ballarshah. He proved complaint at Exh.-26.
It is also pertinent to note that N. A. S. Faruki ::: Downloaded on - 09/06/2013 15:26:54 ::: 21 (PW5) has specifically stated in his evidence that he did not make request to accused-applicant to transfer the amount and Rs. 72,500/- .
12. The Sessions Court in para 18 of his judgment has recorded the finding that the accused and applicant failed to prove that he really transferred the amount to N. A. S. Faruki (PW5). The Court has further observed that assuming for a moment, he has transferred the amount yet the offence of misappropriation is complete as soon as he transferred the amount without any authority to somebody else.
13. It is not necessary to go into details of the matter since both the Courts have concurrently held against the applicant/accused and convicted him for the offence as alleged against him. Suffice it to say that evidence of the prosecution witness is consistent and is not shattered in cross-examination. Basic fact remains that the applicant/accused did not obtain written permission or instructions from superiors to withdraw the ::: Downloaded on - 09/06/2013 15:26:54 ::: 22 huge amount of Rs. 72,500/- and, therefore, his act was illegal and also contrary to the relevant rules prescribed for financial transaction. The amount of Rs. 72,500/- in the year 1980 is very substantial amount and the said amount had been withdrawn and misappropriated by applicant/accused by preparing forged receipt in the name of N. A. S. Faruki (PW5). It has clearly come on record that it is not permissible to transfer the amount from one Division to another unless there is specific written instructions from the Divisional Manager.
Therefore, both the Courts have properly appreciated the evidence brought on record and had reached to a definite conclusion and convicted the applicant/accused. After all, the amount of Rs. 72,500/- that too in the year 1980 was a very huge amount which was withdrawn and misappropriated from public treasury. Therefore, it was not necessary to obtain sanction to prosecute the applicant/accused since his said act was not within his official duties. There is also no substance in the contentions of counsel appearing for the applicant that there was delay in lodging the First Information Report ::: Downloaded on - 09/06/2013 15:26:54 ::: 23 since it has come on record that the applicant/ accused has submitted the accounts for the month of January-
February-1980 on 27.02.1980 and after proper verification immediately on 01.03.1980 the First Information Report is lodged.
14. The point of sanction to prosecute a public servant is concerned, the Hon'ble Supreme Court in the case of Bholu Ram ..vs.. State of Punjab and another; 2008 (4) Mh. L.J. (Cri.) 533 in para 68 held as under:-
"68. We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 467, 468, 471 etc. can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while 'acting or purporting to act in discharge of official duty' [vide Prakash Singh Badal vs. State of Punjab, (2007) 1 SCC 1]
15. Thus, viewed from any angle, no case is made out to upset concurrent findings recorded by courts below.
The appreciation of evidence by both the Courts is in ::: Downloaded on - 09/06/2013 15:26:54 ::: 24 consonance with the law of evidence and also there is no perversity in the findings recorded by the Courts below.
The case of applicant does not fit in any of the parameters and, therefore, the revision application is devoid of any merits and liable to be dismissed.
16. In view of above, the revision application is dismissed. Rule discharged.
The applicant shall surrender before the Court of Sessions, Chandrapur within three weeks from today to undergo rest of the sentence awarded by Courts below.
The learned Sessions Judge, Chandrapur shall submit compliance report of this order within three months from today. In case accused fails to surrender, the Sessions Judge, Chandrapur is free to take any action, permissible under the law.
Miscellaneous applications, if any, stand disposed of in view of disposal of the main revision application.
JUDGE kahale ::: Downloaded on - 09/06/2013 15:26:54 :::