IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 697 of 2001()
1. C. MUKUNDAN
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.S.M.PRASANTH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :16/09/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.697 of 2001
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Dated this the 16th day of September, 2009
ORDER
The revision petitioners are the accused in C.C.No.257 of
1990 on the file of the Judicial Magistrate of the First Class,
Sulthanbathery. The learned magistrate by judgment dated
25/2/1995 found them guilty for offence under section 403 & 409
r/w.34 I.P.C. Accordingly they were convicted for the said
offences and were sentenced to rigorous imprisonment for two
years and a fine of Rs.2,000/- each with usual default clause for
offence under section 409 read with section 34 I.P.C.
No separate sentence was awarded for offence under section
403 r/w.34 IP.C. Though the appellants were also prosecuted for
offence under section 477(A) I.P.C, they were found not guilty
and acquitted.
2. Challenging the above conviction and sentence
Criminal Appeal No.32/95 was preferred before the Sessions
Judge, Kalpetta. The learned Sessions Judge by judgment dated
24/5/2001 dismissed the appeal. Assailing the legality,
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correctness and propriety of the above conviction and sentence
as confirmed in appeal this revision petition was preferred.
3. The appellants were the President and Secretary of
Cheengeri Colony Girijan Service Co-operative Society,
Ambalavayal. As such they were authorized to operate two
accounts maintained by the society, one at the District Co-
operative bank, Wayanad and the other at Service Co-operative
Bank, Ambalavayal as per resolution No.13 of the society
recorded in page 50 of Ext.P8. According to the prosecution, the
revision petitioners were in custody of the pass book, cheque
book, cash book, etc. Exts.P1 and P2 are the pass book and
cheque book respectively in respect of the account maintained at
the District Co-operative Bank, Vayanad. Exts.P4 and P5 are the
pass book and cheque book respectively in respect of Account
No.1235 maintained at Service Co-operative Bank, Ambalavayal.
On 28/10/1985 the revision petitioners who are jointly operating
the account drew Ext.P6 cheque from Ext.P2 cheque book
and withdrew a sum of Rs.200/- from the District Co-operative
Bank. On 29/11/1985 Ext.P7 cheque was drawn from Ext.P5
cheque book and a sum of Rs.5,000/- was drawn from the Service
Co-operative Bank, Ambalavayal. The above two amounts
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were not accounted in Ext.P3 cash book and thus committed
breach of trust.
4. On the side of the prosecution PWs.1 to 11 were
examined and Ext.P1 to P17 were marked. PW.1 is the auditor
who audited the account and detected the defalcation. PW.2, the
Assistant Registrar of the Co-operative Society sent a copy of the
inspection report along with report of misappropriation with a
covering letter to the District Superintendent of Police, Wayanad
who in turn forwarded the same to the C.I of Police,
Sulthanbathery who forwarded the same to the S.I. of Police,
Ambalavayal on the basis of which the S.I. registered a case as
Crime No.82/89 against the revision petitioner for offence under
sections 403, 409, 477 (A) read with section 34 I.P.C.
5. PW.1, who audited the accounts had deposed that she
had audited the accounts of the society and that Ext.P9 is the
audit report. She had further deposed that revision petitioners
were the president and secretary of the above mentioned society.
She had proved that Exts.P1 and P4 passbooks, Ext.P2 and P5
cheque books, Ext.P6 & P7 cheques whereby the amount
misappropriated were drawn and Ext.P8 minutes books. She had
further deposed that in Ext.P3 cash book the amount so
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withdrawn were not entered. Since there is no entry in the cash
book, it can be safely concluded that the amount withdrawn by
Exts.P6 and P7 cheques were not accounted. There is also no
material to show that the amounts so withdrawn were
appropriated by the revision petitioners for any purpose of the
society. In defence they have no case that the amounts so
withdrawn have been either spent for any of the purpose of the
society or accounted any where. In the above circumstances,
from Ext.P8 it is established beyond doubt that the revision
petitioners as president and secretary were authorised to
operate Exts.P1 and P4 accounts in the name of the society. On
28/10/1985 and 29/11/1985 by Exts.P6 and P7 cheques, jointly
drawn by the revision petitioners for Rs.200/- and Rs.5,000/-
respectively, were encashed. Those amounts were not accounted
or appropriated for any of the purpose of the society. So, it can
be legally presumed that the said amounts were appropriated by
the revision petitioner for their own use.
6. The revision petitioners being president and secretary
of the co-operative society, they may not come within the
category of persons (public servant, banker, merchant or agent,
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etc) mentioned in 409 I.P.C. The second revision petitioner
being secretary of the society he may come within the category
of persons mentioned in Section 408 I.P.C. But the first revision
petitioner being the president he may not come within the
purview of the sections 408 I.P.C. also. He would come within
the purview of Section 406 I.P.C. Hence the finding of the courts
below that the revision petitioners had committed offence
u/s.409 I.P.C. is not sustainable. But there are materials to find
that the first revision petitioner had committed offence
punishable under section 403 and 406 I.P.C. and the second
revision petitioner had committed offence punishable under
section 403 and 408 I.P.C. The conviction under challenge
requires such modification.
7. According to the learned counsel for the revision
petitioners the revision petitioners belonging to most backward
class were the president and secretary of a Cheengeri Colony
Girijan Service Co-operative Society and the offence alleged was
committed as early as 1985 and as on that date they were aged
48 and 29 respectively and that the first revision petitioner, then
a peon now retired from service and aged 72 years and the
second revision petitioner, an agricultural labour now aged 53
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years and in the circumstances, the sentence awarded is harsh
and excessive. Though delay in disposal may not be a ground to
determine the sentence, I find some substance in the submission
made by the learned counsel for the revision petitioner. Having
due regard to the facts and circumstances stated above, I find
that as regards the sentence, a modification is necessitated and
that a sentence of simple imprisonment till rising of the court
and a fine of Rs.3,000/- each for offence under section 403 & 406
as regards the first revision petitioner and under section 403 &
408 as regards the second revision petitioner would meet the
ends of justice.
8. In the above circumstances, the revision petition is
allowed in part. The conviction under challenge is modified to
one under section 403 & 406 as regards the first revision
petitioner. As regards the second revision petitioner, it is
modified to one under section 403 & 408 I.P.C. Both of them are
sentenced to simple imprisonment till rising of court and a fine
amount of Rs.3,000/- each for each offence under section 403,
406 & 408 I.P.C. respectively. [Total fine Rs.6,000/- (Rupees Six
thousand only) each]. In default of payment of fine amount, the
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revision petitioner shall undergo simple imprisonment for a
period of 3 months. The fine amount if any collected shall be
paid to the society provided it is now functioning or else it shall
be credited to the State.
P.S.GOPINATHAN, JUDGE
Skj.