Madras High Court
Ebenezer : Revision vs The State Represented By on 17 December, 2013
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 03.07.2019
Date of Judgment 27.09.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.30 of 2014
Ebenezer : Revision Petitioner/
Appellant/Accused
Vs.
The State represented by
The Inspector of Police,
C.C.B Police Station,
Trichy.
Crime No.6 of 2003 : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section
397 r/w 401 of Criminal Procedure Code, against the judgment of
the Principal Sessions Judge, Trichy, passed in Crl.A.No.59 of 2013,
dated 17.12.2013, confirming the judgment passed by the Judicial
Magistrate No.II, Tiruchirapalli, in C.C.No.454 of 2006, dated
21.10.2013.
For Petitioner : Mr.Veerakathiravan
Senior counsel
for Mr.C.Jeganathan
For Respondent : Mr.APG Omh Chairma Prabhu
Government Advocate
(Criminal side)
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JUDGMENT
This Criminal Revision is directed against the judgment of the Principal Sessions Judge, Trichy, passed in Crl.A.No.59 of 2013, dated 17.12.2013, confirming the judgment passed by the Judicial Magistrate No.II, Tiruchirapalli, in C.C.No.454 of 2006, dated 21.10.2013.
2.According to the prosecution, the accused worked at M/s.Kavery Gas Agencies, Trichy, as Computer Operator, Accountant and Godown In-charge from July 2002 to March 2003 and his works involve Gas Cylinder Sale, Stock of total Gas Cylinders and empty cylinders, selling New Gas stoves receiving from Kavery Home Company, giving new gas connection by receiving money and writing all the receipt and express in computer and preparing weekly and quarterly reports and the accused from July 2002 to March 2003 paid in account only Rs. 397910.86 and failed to pay Rs.253889.14/- and thereby committed misappropriation.
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3.It is the further case of the prosecution that the accused out of 256 empty and gas filled cylinders, on his own, sold 135 cylinders, thereby committed misappropriation of Rs.1,38,000/- and further misappropriated the sale proceedings of 81 stoves, out of 134 stoves and misappropriated Rs.52,650/- and further, he received Rs.30,000/- from various persons in the guise of giving new gas connection and he misappropriated it without remitting in the company account and further, the accused misappropriated Rs. 4,70,650/- and had taken 1 cash book, Bank book, 3 petty cash book and vouchers, 4 personal registers with him. The Sub Inspector of Police attached to CCB, Trichy Police Station has filed a final report against the accused examining the witnesses.
4.In the trial court, 19 witnesses were examined and 14 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner and sentenced him to undergo SI for 12 months and also to pay a fine of Rs.3,000/-, in default to undergo SI for one month. Aggrieved by the conviction and sentence passed by the trial court, the revision petitioner filed an appeal in Crl.A.No.59 of 2013, which was heard by the Principal http://www.judis.nic.in 4 Sessions Judge, Trichirappalli. The first appellate Court had also confirmed the findings of the trial court. Hence, this criminal revision.
5.Heard both sides and perused the materials available on record.
6.The main contention raised on the side of the petitioner/accused is that the evidence of PW11 is not supported by documentary evidence to prove the charge against the petitioner and there was no corroboration in the evidence of PW1 to PW3 and PW11 and the petitioner has been charged in Charge No.4 that he had misappropriated a sum of Rs.30,000/-. But the evidence of PW11 related to a meagre sum of Rs.1,850/- alone and the prosecution miserably failed to prove the remaining amount alleged to have been misappropriated by the petitioner and PW11 is the interested witness and deposed as requested by PW1 from when she is getting the gas cylinder till date and there is no iota of evidence in this regard and prays that the criminal revision has to be allowed.
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7.To prove the case under Section 408 IPC, on the side of the prosecution, PW1 to PW3 and PW11 were examined. The case of the prosecution is that the accused worked at M/s.Kavery Gas Agencies, Trichy as Computer Operator, Accountant and Godown In-charge from July 2002 to March 2003 and his work involves involve Gas Cylinder Sale, Stock of total Gas Cylinders and empty cylinders, selling New Gas stoves receiving from Kavery Home Company, giving new gas connection by receiving money and writing all the receipt and express in computer and preparing weekly and quarterly reports and the accused from July 2002 to March 2003 paid in account only Rs.397910.86 and failed to pay Rs.253889.14/- and thereby committed misappropriation. Further, the accused out of 256 empty and gas filled cylinders, on his own, sold 135 cylinders and committed misappropriation of Rs.1,38,000/- and further misappropriated the sale proceedings of 81 stoves out of 134 stoves and misappropriated Rs.52,650/- and further he received Rs.30,000/- from various persons in the guise of giving new gas connection and he misappropriated it without remitting in the company account and further, the accused misappropriated Rs. 4,70,650/- and had taken 1 cash book, Bank book, 3 petty cash book and vouchers, 4 personal registers with him and the accused http://www.judis.nic.in 6 received Rs.30,000/- from various persons in the guise of giving new gas connection and the misappropriated it without remitting into the company account.
8.PW11 who is one of the Customers deposed that she knew the accused as a Staff in the reception of Kavery Gas Agencies and she went there for new gas connection and she paid Rs.1,850/- and the accused receiving it, but did not give any receipt. The accused did not give pass book. When she enquired, she was instructed to give new application. The Gas Agencies told her that they will take the gas cylinder and regulator already supplied to her. PW1 clearly deposed the responsibility of the accused. PW2 deposed that the accused was working as Computer Operator and Customer Manager and he was maintaining the accounts relating to new gas connection, transfer of gas connection.
9.PW3 deposed that he will verify the customers for new gas connection and the accused alone would receive the money and in his work, the accused will be in-charge and if the accused is absent, then no sale will be done.
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10.As per the evidence of PW11, the accused had received Rs.1,850/- and handed over her the cylinder and regulator. This itself shows that the accused had dominion over the property namely the gas cylinders, regulators and overall command to entertain new connections. The said amount was not remitted by the accused. Because of it, he had not given any receipt to PW11 and later, after the accused failed to come to Office, PW11 was instructed to apply for new gas connection afresh and to return the gas cylinder and regulator given to her by the accused. Hence, the dishonestly misappropriated the amount is clearly proved. It is in violation of the implied legal contract of employment between the accused and Kavery Gas Agencies and even though, the accused was designated as Computer Operator, he looked after the alleged work also stands proved.
11.Further, the accused being a Clerk or Officer of Kavery Gas Agencies is an admitted fact that he is liable under Section 408 IPC. Section 408 IPC deals with criminal breach of trust by clerk or servant. Section 406 IPC deals with punishment for criminal breach of trust in general cases. Hence, this court confines the offence under Section 408 IPC alone against the accused as it fulfils the entire offence against the accused.
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12.Both the courts below after analysing the entire materials available on record, had given a concurrent findings, which does not require any interference by this court. However, considering the fact that the petitioner is the only breadwinner of the family, the punishment imposed on the petitioner requires modification.
13.In the result, this Criminal Revision is partly allowed. The punishment imposed on the petitioner for the offence under Section 408 IPC is reduced to 6 months SI. The fine amount imposed by the courts below is confirmed. The period of sentence, if any already undergone by the accused is set off under Section 428 of Cr.P.C.
27.09.2019 Index:Yes/No Internet:Yes/No er T.KRISHNAVALLI,J http://www.judis.nic.in 9 er Judgment made in Crl.R.C(MD)No.30 of 2014 .09.2018 304(A) IPC - ALLOWED http://www.judis.nic.in 10
14.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charge levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
7.PW1 is the complainant and he gave the complaint statement Ex.P1. PW1 in his evidence stated that on 23.10.2007 22.02.2005, he was travelling in the bus and sitting on the 3 rd seat in front of side, which was driven by the accused and at about 3.30 am, when the bus was coming on the Thirukanurpatti, Thanjavur- Pudukottai road near one petrol bank, the accused drove the bus in a rash and negligent manner and dashed against the left side parked vehicle and due to which, two persons died on the spot and some of them got injured, who are also travelling as passenger and he had also got injured and they were admitted in the Thanjavur http://www.judis.nic.in 11 Medical College Hospital, where he was given complaint statement to the police and which was marked as Ex.P1.
8.PW2 (Thiru.Sivaprakasam), Conductor of the bus stated during his evidence that on 23.10.2007 at 12.50 am, he was working as conductor and on the fateful day at 3.30 am, the accused the bus in a rash and negligent manner and dashed the parked vehicle on the left side and due to which, he was thrown away through the front windscreen and sustained injuries and the injured persons were taken to Thanjavur Medical College Hospital.
9.PW2 to PW4 are cited as occurrence witness. PW2 to PW4 in their evidence stated that the driver of the vehicle drove his vehicle in a speed manner, but they have not stated that the driver of the vehicle drove his vehicle in a rash and negligent manner. Further, they have stated during their chief examination that they saw the occurrence. But during their cross examination, they have stated that after hearing the sound, they saw that the deceased has http://www.judis.nic.in 12 sustained injury. Hence, there is no chance for PW2 to PW4 to see the occurrence.
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