IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 114 of 1998(C)
1. PAUL
... Petitioner
Vs
1. M.SURESH
... Respondent
For Petitioner :SRI.JOHNSON MANAYANI
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :28/08/2008
O R D E R
V. RAMKUMAR, J.
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Cr.R.P.No.114 of 1998
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Dated: 28.08.2008
O R D E R
In this revision filed under Sec. 397 read with Sec. 401
Cr.P.C. the petitioner, who is the accused in C.C. No.28 of 1995
on the file of the J.F.C.M-I, Thrissur for offences punishable
under Sections 403, 408, 409, 420 and 477A IPC, challenges the
conviction entered and the sentence passed against him for the
aforementioned offences concurrently by the courts below.
2. The case of the prosecution can be summarised as
follows:
The accused was functioning as the acting Secretary of the
Koorkkanchery Service Co-operative Bank during the period
from 7.8.1967 to 29.1.1989. For the period from 30.1.69 to
19.10.90 he was functioning as the Secretary of the said Bank.
Lucy, the wife of the accused had availed a loan on 9.9.98 for a
sum of Rs.10,000/- and she executed an equitable mortgage to
secure the loan. While the loan was still outstanding, the
accused on 18.7.1990 returned all the documents to his wife
Lucy. The accused also had taken a loan of Rs.15,000/- on
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11.6.90 without making necessary entries in the books of
accounts of the Bank. That transaction has not been settled so
far. One Thanka had availed of a gold loan to the extent of
Rs.2400/- on 7.7.89. Eventhough the said Thanka repaid the
money, the accused did not make necessary entries in the books
of the bank and misappropriated the same. He did the same act
in respect of another loan availed of by Thanka. One Antony had
deposited a cheque of Rs.11,747.60 for collection. The said
amount was paid immediately to Antony. When the proceeds
were received after collection of the cheque, it is seen that the
accused credited the amount to his personal account and
withdrew the amount from his account. The accused has thus
committed falsification of the accounts of the bank and criminal
breach of trust and misappropriation of a sum of Rs.53,361.70.
The accused has thereby committed offences punishable under
Sections 403,408,409,420 and 477A.
3. On the accused pleading not guilty to the charge
framed against him by the trial court for the aforementioned
offences, the prosecution was permitted to adduce evidence in
support of its case. The prosecution altogether examined 7
Crl.R.P.No.114 of 1998
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witnesses as P.Ws 1 to 7 and got marked 26 documents as Exts.
P1 to P26.
4. After the close of the prosecution evidence, the
accused was questioned under Sec. 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against him
in the evidence for the prosecution. He denied those
circumstances and maintained his innocence. He did not
adduce any defence evidence when called upon to do so.
5. The learned Magistrate, after trial, as per judgment
dated 6.1.96 found the revision petitioner guilty of the offences
charged against him and sentenced him to rigorous
imprisonment for one year and to pay a fine of Rs.1,000/- and on
default to pay the fine to suffer simple imprisonment for one
month under Section 403 IPC and rigorous imprisonment for two
years each and a fine of Rs.2,000/- and on default to pay the fine
to suffer simple imprisonment for two months under Section
408,409 & 477(A) IPC. On appeal preferred by the revision
petitioner before the Sessions Court, Thrissur as Crl.Appeal
No.22 of 1996, the lower appellate court as per judgment dated
7.2.98 dismissed the appeal confirming the conviction entered
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and the sentence passed against the revision petitioner. Hence,
this Revision.
6. Eventhough the learned counsel appearing for the
revision petitioner assailed on various grounds the conviction
entered against the revision petitioner, in as much as the
conviction has been recorded by the courts below concurrently
after a careful evaluation of the oral and documentary evidence
in the case, this Court sitting in revision will be loathe to
interfere with the said conviction which is accordingly
confirmed.
7. What now survives for consideration is the question
regarding the adequacy or otherwise of the sentence imposed on
the revision petitioner. The learned counsel for the 1st
respondent also confirms that the revision petitioner has paid
the entire amounts due to the 1st respondent- bank and the bank
has no subsisting claim or grievance over the issue. If so, I do
not think that the petitioner deserves penal servitude by way of
incarceration. Under these circumstances, I am inclined to put
the revision petitioner on fine. The sentence imposed by the
courts below is set aside and for his conviction under Section
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403 IPC, the revision petitioner is sentenced to pay a fine of
Rs.500/- and on default to pay the fine to suffer simple
imprisonment for 10 days. For his conviction under Sections
408,409 and 471 IPC, he is sentenced to pay a fine of Rs.500/-
each and on default to pay the fine to suffer simple imprisonment
for 15 days each. The petitioner shall deposit the fine amount
before the trial court within one month from today.
In the result, this Revision is disposed of confirming the
conviction entered but modifying the sentence imposed as above.
Dated this the 28th day of August, 2008.
V.Ramkumar, Judge.
sj