ORDER
V. Gopalaswamy, J.
1. This revision is preferred against the judgment of the learned Sessions Judge, Boudh-Khondmals, Phulbani, in Criminal Appeal No. 75 of 1985 confirming the order of conviction and sentence passed against the accused-petitioner by the trial Court under Section 409/34, I.P.C.
2. The gist of prosecution case is that the accused-petitioner was the Sarpanch of Madaguda Gram Panchayat during the relevant period and that he along with the Secretary of the Gram Panchayat (the co-accused in the case) in furtherance of their common intention had misappropriated an amount of Rs. 19,500/- from out of the Gram Panchayat funds and thereby rendered themselves liable under Section 409/34, I.P.C.
3. The prosecution has examined in all fifteen witnesses to prove its case. The plea of the petitioner was one of denial. No evidence was adduced on behalf of the petitioner in support of his plea.
4. As a court of revision I am not expected to re-appraise the evidence. The learned counsel for the petitioner has chal lenged the legality of the judgments of the courts below on some legal grounds which I am considering below.
5. The learned counsel for the petitioner submitted that there was no valid sanction for prosecuting the petitioner. The offence alleged against the petitioner and the co-accused was that in furtherance of their common intention they have misappropriated the Gram Panchayat funds and rendered themselves liable under Section 409/34, I.P.C. The object of Section 197, Cr.P.C. is to protect the public servants from vexatious prosecution at the instance of a member of public. As a public servant in discharge of his duties is exposed to the public, it is necessary to afford him the protection under Section 197, Cr.P.C. The provision under Section 197, Cr.P.C. is meant to shield a public servant against frivolous prosecution, but is not meant to serve as a sword to attack a genuine prosecution. In this case it was the B.D.O. who had lodged the F.I.R. against the accused persons under Section 409/34, I.P.C. So by no stretch of imagination can it be said that prosecution was either vexatious or that the alleged misappropriation was committed by the petitioner while acting or purporting to act in discharge of his official duties. Hence in the facts of the present case no sanction under Section 197, Cr.P.C. is at all necessary to prosecute the accused persons. So both the courts below rightly rejected the contention of the petitioner that the prosecution was vitiated for want of due sanction.
6. The learned counsel for the petitioner next contended that as the prosecution against the accused was in relation to five instances of misappropriation during the course of a year, the same is violative of Section 219, Cr.P.C. But then on a perusal of the evidence in the case it is clear that the series of acts of misappropriation alleged against the petitioner are so connected together as to form the same transaction and so the argument of the learned counsel for the petitioner that the framing of the charge was defective is not tenable in view of the provision under Section 220(1), Cr.P.C. Even otherwise also there is no prejudice caused to the petitioner because of the manner in which the charge was framed. That apart, under Section 465(2), Cr.P.C. in case an accused prejudiced by any error in the framing of a charge, he should raise the objection at the earlier stage. Admittedly the contention regarding the defect in the framing of the charge is raised for the first time in this Court. Considering all aspects of the matter, the argument that there was defective framing of charge is without any substance.
7. The learned counsel for the petitioner contended that the prosecution has failed to prove the ingredients of dishonest intention and for that reason also the charge under Section 409, I.P.C. against the petitioner must fail. Intention is always a matter of inference. In the present case, the petitioner was admittedly the Sarpanch at the relevant period and therefore, he is also accountable for the due utilisation of the funds of the Gram Panchayat. The sum of Rs. 19,500/ – misappropriated by the accused persons relates to five instances, according to the prosecution. From the evidence it is seen that against all the entries in the cash book the accused-petitioner was also signing as he was duty bound to do so. One of the instances is on 31-8-1979 on which date Rs. 4,000/- was allegedly paid to one Madhab Kanhar and the said payment was shown in the daily cash book. Likewise on 19-10-1979 a payment of Rs. 6,000/- to Madhab Kanhar was shown in the daily cash book and there is no mention for what purpose the amount was paid. On the third occasion a payment of Rs. 2,000/- to the said Madhab Kanhar was shown. So from the cash book it is seen that according to the accused persons the said amount of Rs. 12,000/- was allegedly paid to one Madhab Kanhar. The said Madhab Kanhar was examined as P.W. 4 on the side of the prosecution and from his reliable evidence it is seen that no such payment was ever made to the said Madhab Kanhar. The accused persons go to the extent of pleading that there was another Madhab Kanhar to whom they had allegedly paid the amount of Rs. 12,000/ -in question. But there is nothing on record to substantiate the said plea of the accused persons. That apart, the suggestion made by the petitioner to P.W. 4 that he had in fact received the amounts in question betrays the utter falsity of the defence plea that there was another Madhab Kanhar to whom the accused persons had paid the amount. The prosecution has clearly established that under the withdrawal forms Exts. 1 and 19 which were signed by the present petitioner sums were withdrawn from the post office. Apart from the evidence of the Hand-writing Expert, there is other evidence also to show that the signatures in Exts. 1 and 19 were that of the petitioner. Hence there is reliable evidence to show that the amounts under Exts. 1 and 19 were withdrawn from the post office but the same were not duly accounted for by the accused persons. In this context the accused persons during the course of the argument in the courts below advanced the plea even denying the specimen signatures and the admitted signatures sent to the Expert for comparison.
On the fourth occasion, on 3-4-1980 an entry was made in the cash book showing that Rs. 5,500/- was deposited to the credit of the Gram Sabha in the post office and as against that entry both the accused persons have signed in the cash book Ext. 5. There is reliable evidence to show that no such deposit was at all made in the post office.
On the fifth occasion, that is, on 12-7-80, a sum of Rs. 2,000/- was withdrawn from the post office, as disclosed from the reliable evidence, but no entry in relation to it was made in the cash book.
Hence from the above evidence it is clear that both the accused persons, in furtherance of their common intention, have misappropriated a total amount of Rs. 19,500/ – and the facts and circumstances stated above disclose patent dishonest intention on the part of the accused persons.
8. On a perusal of the judgments of both the courts below, I find that it was only after careful consideration of the evidence on record both the courts below have arrived at the concurrent finding that the petitioner and the co-accused are guilty of the offence under Section 409/34, I.P.C. and I see no reason to differ with their finding.
9. The learned counsel for the petitioner vehemently urged that in the facts and circumstances of the case, the petitioner may be awarded a lenient sentence on the ground that he is presently aged about sixty years. On a perusal of the cause-title in the judgment of the learned Sessions Judge, I find that the petitioner was aged only about forty years. So by today the petitioner cannot be aged sixty years as stated by the learned counsel for the petitioner. Under the circumstances there is no valid ground for reducing the sentence of one year R. I. and fine of Rs. 1000/- imposed on him by the courts below: Even otherwise also I find that the sentence imposed by both, the courts below is justified and calls for no interference.
10. In the result, I find no merit in the revision petition and the same is, therefore, dismissed.