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Showing contexts for: Sec 477a ipc conviction in R.R.Sinha vs State Of Jharkhand on 16 December, 2011Matching Fragments
read with Sections 467/477A of the I.P.C. as also under sections 5(1)(c) and (d) punishable under section 5(2) of the Prevention of Corruption Act of 1947 and sentenced them to undergo R.I. for three years under section 5(2) of the Prevention of Corruption Act, 1947 with fine of Rs.1000/- and further sentenced themto undergo R.I. for one year for the offence committed under section 420 I.P.C., two years R.I. for the offence committed under section 409 I.P.C. , two years R.I. for the offence committed under section 477A I.P.C. with a fine of Rs.1000/- and three years R.I. for the offence committed under section 467 I.P.C.. He further ordered that all the sentences will run concurrently.
4. Learned court below after close of prosecution case, examined appellants under section 313 of the Cr. P.C. in which their defence is of total denial. It further appears that appellant R.R. Sinha examined himself as defence witness no.1.
5. It appears that learned court below after considering the evidence available on record and also after hearing counsels for the parties, convicted and sentenced appellants as stated above, against that present appeals filed.
6. It is submitted by learned counsel for the appellants that in the instant case, learned court below has committed serious illegality by convicting and sentencing the appellants for the offences under sections 409 I.P.C. as well as under section 5(1)(c) of the Prevention of Corruption Act, 1947. It is submitted that offence under section 5(1)(c) of the Prevention of Corruption Act is identical with offence under section 409 of the I.P.C. thus, as per section 26 of the General Clauses Act, appellants can be prosecuted and punished for any one of aforesaid two offences. It is submitted that since, the appellants were punished for both the offences, therefore, judgment of the court below cannot be sustained. It is further submitted that appellants have no intention to mis- appropriate excess amount because admittedly the said amount has already been deposited with the authority concerned prior to lodging of F.I.R. It is further submitted that from the materials available on record, it is clear that the appellants have no dishonest intention to mis-appropriate the aforesaid amount. Thus, offence under section 409 I.P.C. as well as under section 5(1)(c) of Prevention of Corruption Act is not made out. It is further submitted that there is no evidenced to show that appellants hatched conspiracy to mis-appropriate the amount , but the learned court below convicted the appellants under section 120B of the I.P.C. without any evidence. Accordingly, it is submitted that impugned judgment of conviction and order of sentence cannot be sustained in these appeals.
9. Thus, it can be visualized from aforesaid propvision that if one act or omission constitute an offence under two or more enactments then in that case offender is liable to be prosecuted and punished under any one of aforesaid enactments, but he shall not be punished for both offences.
10. In the instant case, both the appellants were prosecuted, convicted and sentenced under section 409 I.P.C. as well as under section 5(1)(c) of the Prevention of Corruption Act. Thus, question arise in this case for consideration as to whether same act or omission constitutes offence under section 409 of the I.P.C. as well as as under section 5(1)(c) of the Prevention of Corruption Act, 1947 ? Section 409 of the I.P.C. runs as follows :
24. It has been held by Their Lordships of Supreme Court in the case of ".Narendra Pratap Narain Singh & another.Vs.State of U.P." reported in AIR 1991 SC-1394 that if an amount alleged to have been mis-appropriated was deposited by the accused before investigation, then offence under section 409 I.P.C. can not be made out. As noticed above, in the instant case, appellant R.R. Sinha deposited the said amount on 31.7.1985, whereas investigation started after 31.10.1985. Thus, in view of aforesaid law laid down by their Lordships of Supreme Court, offence under section 409 of the I.P.C. is not made out. From perusal of entire evidence adduced by prosecution, I find that there is nothing to show that appellants have forged any document, thus, offence under section 467/471 and 477A of the I.P.C. is not made out.