BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:20/02/2008 CORAM THE HONOURABLE Mr.JUSTICE A.SELVAM Criminal Revision Case Nos.1025 to 1030 of 2003 and Criminal Revision Case Nos.730 to 732 of 2005 P.Jebac Angel Martin ... Petitioner in Crl.R.C.Nos.1025 to 1030 of 2003 Murugan ... Petitioner in Crl.R.C.Nos.730 to 732 of 2005 Vs State represented by the Sub-Inspector of Police, C.C.I.W. CID., Tuticorin District. ... Respondent in all
the revision cases
Criminal Revision Cases have been filed under Section 397 and 401 of
the Code of Criminal Procedure, against the judgment dated 31.03.2003 passed in
C.A.Nos.78, 79, 80, 81, 82, 83, 84, 85 of 2001 by the Additional Sessions cum
Chief Judicial Magistrate Court, Tuticorin, modifying the conviction and
confirming the sentence dated 29.06.2001 passed in C.C.Nos.57, 58, 59, 60, 61
and 62 of 1999 by the Judicial Magistrate No.II, Tirunelveli.
!For petitioners ... Mr.V.R.Shanmuganathan
Crl.R.C.Nos.1025 to
1030 of 2003
For petitioners ... Mr.V.Kathirvelu
Crl.R.C.Nos.730 to
732 of 2005
^For respondent ... Mr.K.R.Thiagarajan,
in all the revision Government Advocate,
cases (Criminal Side)
:COMMON ORDER
These criminal revision cases have been filed against the judgments
passed in Calendar Case Nos.57, 58, 59, 60, 61 and 62 by the Judicial Magistrate
No.II, Tirunelveli and in Criminal Appeal Nos.78, 79, 80, 81, 82, 83, 84 and 85
of 2001 by the Additional Sessions cum Chief Judicial Magistrate Court,
Tuticorin.
2.The case of the prosecution in Calendar Case No.57 of 1999 can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has served as writer. From 20.12.1993 to 15.11.1994 both the accused
have colluded together and taken amount for purchasing groceries and cosmetics,
and after purchasing groceries and cosmetics, they failed to remit balance
amount of Rs.49,550/- and both of them have defalcated the balance amount.
Under the said circumstances, both the accused are said to have committed
offences under Sections 409, 408, 477(a) read with 34 of the Indian Penal Code.
3.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
4.On the side of the prosecution, Pws.1 to 8 have been examined and
Exs.P1 to P26 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
5.The trial Court after considering the evidence available on record has
found the first accused guilty under Sections 409 and 477(a) read
with 34 of the Indian Penal Code and the second accused guilty under Sections
408, 477(a) read with 34 of the Indian Penal Code and sentenced them to undergo
one year rigorous imprisonment and also imposed a fine of Rs.3,000/- for each
offence with default clause.
6.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.77 of 2001 and the
second accused has filed Criminal Appeal No.65 of 2001 on the file of the
Additional Sessions cum Chief Judicial Magistrate Court, Tuticorin. The first
appellate court after reappraising the evidence available on record, has allowed
Criminal Appeal No.65 of 2001 and set aside the conviction and sentence passed
against the second accused and partly allowed Criminal Appeal No.77 of 2001 and
found the first accused guilty under Section 409 of Indian Penal Code and
confirmed the period of sentence imposed by the trial Court.
7.Against the concurrent judgments passed by the Courts below, Criminal
Revision Case No.1025 of 2003 has been filed by the first accused.
8.The case of the prosecution in Calendar Case No.58 of 1999 can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has served as writer. From 13.04.1995 to 30.01.1996, both the accused
have colluded together and taken amount for purchasing groceries and cosmetics,
and failed to remit the balance amount of Rs.32,677.65 and thereby both of them
are said to have committed offences under Sections 409, 408, 477(a) read with 34
of the Indian Penal Code.
9.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
10.On the side of the prosecution, PWs.1 to 8 have been examined and
Exs.P1 to P27 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
11.The trial Court after considering the evidence available on record,
has found the first accused guilty under Sections 409, 477(a) read with 34 of
the Indian Penal Code and the second accused guilty under Sections 408, 477(a)
read with 34 of the Indian Penal Code and sentenced them to undergo one year
rigorous imprisonment and also imposed a fine of Rs.3,000/- for each offence
with default clause.
12.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.78 of 2001 and the
second accused has filed Criminal Appeal No.66 of 2001 on the file of the
Additional Sessions cum Chief Judicial Magistrate Court, Tuticorin.
13.The first appellate court after reappraising the evidence available on
record, has allowed Criminal Appeal No.66 of 2001 and ultimately set aside the
conviction and sentence passed against the second accused and partly allowed
Criminal Appeal No.78 of 2001 and found the first accused guilty under Section
409 of Indian Penal Code and confirmed the period of sentence imposed by the
trial Court.
14.Against the concurrent judgments passed by the Courts below, Criminal
Revision Case No.1026 of 2003 has been filed at the instance of the first
accused.
15.The case of the prosecution in Calendar Case No.59 of 1999 can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has served as writer. From 07.08.1996 to 24.08.1996, both the accused
have colluded together and taken amount for purchasing groceries and cosmetics,
and failed to remit the balance amount of Rs.2,650/- and thereby they committed
offences under Sections 409, 408, 477(a) read with 34 of the Indian Penal Code.
16.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
17.On the side of the prosecution, PWs.1 to 8 have been examined and
Exs.P1 to P27 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
18.The trial Court after evaluating the evidence available on record has
found the first accused guilty under Sections 409, 477(a) read with 34 of the
Indian Penal Code and the second accused guilty under Sections 408, 477(a) read
with 34 of the Indian Penal Code and sentenced them to undergo one year rigorous
imprisonment and also imposed a fine of Rs.1,000/- for each offence, with
default clause.
19.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.79 of 2001 and the
second accused has filed Criminal Appeal No.67 of 2001 on the file of the
Additional Sessions cum Chief Judicial Magistrate Court, Tuticorin.
20.The first appellate court after reappraising the evidence available on
record, has allowed Criminal Appeal No.67 of 2001 filed by the second accused
and thereby set aside the conviction and sentence passed by the trial Court. The
first appellate Court has partly allowed Criminal Appeal No.79 of 2001 and
ultimately found the first accused guilty under Section 409 of Indian Penal Code
and confirmed the period of sentence imposed by the trial Court.
21.Against the concurrent judgments passed by the Courts below, the first
accused has filed Criminal Revision Case No.1027 of 2003.
22.The case of the prosecution in Calendar Case No.60 of 1999 can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has conducted canteen. The third accused has served as writer. From
02.03.1994 to 13.02.1995, with the intention of committing crimes, the first
accused against Rule 70 Sub-Rule 32(2)(a) has supplied groceries to the second
accused and the third accused has created bogus records and thereby they caused
loss to the tune of Rs.1,33,799.85. Under the said circumstances, the first
accused has committed offences under Sections 409, 477(a) read with 34 of the
Indian Penal Code, the second accused has committed offences under Sections 406,
109 read with 34 of India Penal Code and the third accused has committed
offences under Sections 477(a), 408, 109 read with 34 of the Indian Penal Code.
23.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
24.On the side of the prosecution, PWs.1 to 11 have been examined and
Exs.P1 to P84 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
25.The trial Court after considering the evidence available on record,
has found the first accused guilty under Sections 409 and 477(a) read with 34 of
the Indian Penal Code, the second accused guilty under Sections 406 of the
Indian Penal Code and the third accused guilty under Section 408, 477(a) read
with 34 of Indian Penal Code and sentenced the first and third accused to
undergo one year rigorous imprisonment and also imposed a fine of Rs.3,000/- for
each offence, with default clause. The second accused has been sentenced to
undergo one year rigorous imprisonment and also imposed a fine of Rs.5,000/-
with default clause.
26.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.80 of 2001, the second
accused has filed Criminal Appeal No.83 of 2001 and the third accused has filed
Criminal Appeal No.68 of 2001, on the file of the Additional Sessions cum Chief
Judicial Magistrate Court, Tuticorin.
27.The first appellate court, after reappraising the evidence available
on record, has allowed Criminal Appeal No.68 of 2001 filed by the third accused
and thereby set aside the conviction and sentence passed by the trial Court.
The first appellate Court has partly allowed Criminal Appeal No.80 of 2001 and
ultimately found the first accused guilty under Section 409 of Indian Penal Code
and confirmed the period of sentence imposed by the trial Court. The first
appellate Court has dismissed Criminal Appeal No.83 of 2001 filed by the second
accused and thereby confirmed the conviction and sentence passed by the trial
Court.
28.Against the concurrent judgments passed by the Courts below, the first
accused has filed Criminal Revision Case No.1028 of 2003 and the second accused
has filed Criminal Revision Case No.731 of 2005.
29.The case of the prosecution in Calendar Case No.61 of 1999 can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has conducted canteen. The third accused has served as writer. From
08.03.1995 to 06.03.1996, all the accused have conspired together with the view
to defalcate the amount belong to the Co-operative Store, the first accused has
sold groceries to the second accused against Rule 70 Sub Rule 32(2)(a) of the
Act and thereby defalcated Rs.2,63,274.65. Under the said circumstances, the
first accused is said to have committed offences under Sections 409 & 477(a)
read with 34 of the Indian Penal Code, the second accused has committed offences
under Sections 406 & 109 read with 34 of India Penal Code and the third accused
has committed offences under Sections 477(a), 408, 109 read with 34 of the
Indian Penal Code.
30.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
31.On the side of the prosecution, PWs.1 to 11 have been examined and
Exs.P1 to P65 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
32.The trial Court after considering the evidence available on record has
found the first accused guilty under Sections 409 and 477(a) read with 34 of the
Indian Penal Code, the second accused guilty under Section 406 of the Indian
Penal Code and the third accused guilty under Sections 408 and 477(a) read with
34 of Indian Penal Code and sentenced the first and third accused to undergo one
year rigorous imprisonment and also imposed a fine of Rs.3,000/- for each
offence, with default clause. The second accused has been sentenced to undergo
one year rigorous imprisonment and also imposed a fine of Rs.5,000/- with
default clause.
33.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.81 of 2001, the second
accused has filed Criminal Appeal No.84 of 2001 and the third accused has filed
Criminal Appeal No.69 of 2001, on the file of the Additional Sessions cum Chief
Judicial Magistrate Court, Tuticorin.
34.The first appellate court after reappraising the evidence available on
record, has allowed Criminal Appeal No.69 of 2001 filed by the third accused and
thereby set aside the conviction and sentence passed by the trial Court. The
first appellate Court has partly allowed Criminal Appeal No.81 of 2001 and
ultimately found the first accused guilty under Section 409 of Indian Penal Code
and confirmed the period of sentence imposed by the trial Court. The first
appellate Court has dismissed Criminal Appeal No.84 of 2001 filed by the second
accused and thereby confirmed the conviction and sentence passed by the trial
Court.
35.Against the concurrent judgments passed by the Courts below, the
first accused has filed Criminal Revision Case No.1029 of 2003 and the second
accused has filed Criminal Revision Case No.732 of 2005.
36.In Calendar Case No.62 of 1999 the case of the prosecution can be
stated like thus;
The first accused has served as Special Officer in E.E. Thiruchendur Co-
operative Weaving Mills Employees’ Co-operative Store, Nazreth. The second
accused has conducted canteen. The third accused has served as writer. From
27.03.1996 to 08.06.1996, all the accused have conspired together for the
purpose of committing defalcation and the first accused against Rules has sold
groceries to the second accused and the third accused has created false accounts
with the connivance of the accused 1 & 2 and thereby caused loss to the tune of
Rs.48,812/-. Under the said circumstances, the first accused has committed
offences under Sections 409 and 477(a) read with 34 of the Indian Penal Code,
the second accused has committed offences under Sections 408 and 109 read with
34 of the India Penal Code and the third accused has committed offences under
Sections 477(a), 408 and 109 read with 34 of the Indian Penal Code.
37.The trial Court, on the basis of accusation made against the accused,
has framed necessary charges and the same have been read over and explained to
the accused and the accused have denied the charges and claimed to be tried.
38.On the side of the prosecution, PWs.1 to 11 have been examined and
Exs.P1 to P36 have been marked. When the accused have been questioned under
Section 313 of the Code of Criminal Procedure, as respects the incriminating
circumstances appearing in evidence against them, they denied their complicity
in the crimes. On the side of the accused, Ex.D1 has been marked and no oral
evidence has been adduced on their side.
39.The trial Court after considering the evidence available on record,
has found the first accused guilty under Sections 409 and 477(a) read with 34 of
the Indian Penal Code, the second accused guilty under Section 406 of the Indian
Penal Code and the third accused guilty under Sections 408 and 477(a) read with
34 of Indian Penal Code and sentenced the first and third accused to undergo one
year rigorous imprisonment and also imposed a fine of Rs.3,000/- for each
offence, with default clause. The second accused has been sentenced to undergo
one year rigorous imprisonment and also imposed a fine of Rs.5,000/- with
default clause.
40.Against the conviction and sentence passed by the trial Court, the
first accused as appellant has filed Criminal Appeal No.82 of 2001, the second
accused has filed Criminal Appeal No.85 of 2001 and the third accused has filed
Criminal Appeal No.70 of 2001, on the file of the Additional Sessions cum Chief
Judicial Magistrate Court, Tuticorin.
41.The first appellate court after reappraising the evidence available on
record, has allowed Criminal Appeal No.70 of 2001 filed by the third accused and
ultimately set aside the conviction and sentence passed by the trial Court
against. The first appellate Court has allowed Criminal Appeal No.82 of 2001 in
part and found the first accused guilty under Section 409 of Indian Penal Code
and confirmed the period of sentence imposed by the trial Court. The first
appellate Court has dismissed Criminal Appeal No.85 of 2001 filed by the second
accused and thereby confirmed the conviction and sentence passed by the trial
Court.
42.Against the concurrent judgments passed by the Courts below, the first
accused has filed Criminal Revision Case No.1030 of 2003 and the second accused
has filed Criminal Revision Case No.730 of 2005.
43.Since common questions of law and facts are involved in the present
criminal revision cases, common order is pronounced.
44.The case of the prosecution in Calendar Case Nos.57 to 59 of 1999 is
that the first accused viz., Jebac Angel Martin has served as Special Officer
during the relevant period in E.E. Tirunelveli Co-operative Weaving Mills
Exployees’ Co-operative Store. The second accused viz., Chandira has served as
writer and both the accused have taken certain amounts so as to purchase
groceries and cosmetics, and they failed to remit the balance amount. Under the
said circumstances, Calendar Case Nos.57 to 59 of 1999 have been instituted
against them. The trial Court has found both the accused guilty under the
said Sections mentioned supra. But, the first appellate Court has acquitted the
second accused and modified the conviction imposed against the first accused.
45.The specific contention of the prosecution in Calendar Case Nos.60 to
62 of 1999 is that the first accused viz., Jebac Angel Martin has served as
Special Officer in the said Society and the second accused viz., Murugan has
conducted canteen in it and the third accused has served as writer. During the
relevant period, the first accused by way of flouting the existing Rules has
sold groceries to the second accused who is not at all a member of the society
and the third accused has created bogus accounts so as to commit defalcation and
thereby caused loss of amounts mentioned in Calendar Case Nos.60 to 62 of 1999.
The trial Court has convicted all the accused mentioned in Calendar Case Nos.60
to 62 of 1999. But, the first appellate Court has acquitted the third accused
and modified the conviction imposed against the first accused and confirmed the
sentence imposed against the second accused.
46.The learned counsel appearing for the revision petitioner in Criminal
revision case Nos.1025 to 1030 of 2003 has repeatedly contended that the
revision petitioner/first accused has only served as Special officer and he has
had no connection whatsoever with the dealings alleged to have have been made by
the second and third accused, and for the offences alleged to have been
committed by the second and third accused, the first accused
cannot be mulcted with punishment, but, the Courts below without considering the
role of the first accused, have erroneously found him guilty and therefore, the
concurrent judgments passed by the Courts below in Calendar Case No.57 to 62 of
1999 and in Criminal Appeal Nos.77, 78, 79, 80, 81 and 82 of 2001 are liable to
be set aside.
47.The learned counsel appearing for the revision petitioner/second
accused in Criminal Revision case Nos.730 to 732 of 2005 has also contended with
great vehemence that the second accused viz., Murugan has only conduced canteen
and he purchased groceries on credit basis and he has no connection with the
alleged offences, but, the Courts below without considering the above aspects,
have erroneously found him guilty and therefore, the conviction and sentence
passed against him by the trial Court in C.C.Nos.60 to 62 of 1999, upheld by the
first appellate Court in Criminal Appeal Nos.83, 84 and 85 of 2001 are liable to
be set aside.
48.The specific contention of the prosecution is that all the accused
have colluded together and thereby caused loss to the society in question. It
is true that the first accused has served as a Special Officer during the
relevant period. One witness by name Balagurunathan has been examined as PW7 in
Calendar Case Nos.57 to 59 of 1999. He has clearly stated in his evidence that
as per Sub-Rule 27(1)(a), the Special Officer is alone responsible for the
assets and liabilities of the society and further, he is alone responsible for
all the credits and liabilities of the society and the first accused has been
appointed only for the society in question. Therefore, from the evidence of PW7
viz., Balagurunathan, it is made clear to the Court that for all the acts and
omissions of the society, the first accused is alone responsible. Simply
because, the second accused found in the said cases viz.,
Chandira has served as accountant during the relevant period, the first accused
cannot shirk his sole responsibility. Therefore, it is quite clear that the
argument advanced by the learned counsel appearing for the revision petitioner
in Criminal Revision Case Nos.1025 to 1030 of 2003 is sans merit.
49.It has already been pointed out that the second accused in Calendar
Case Nos.60 to 62 of 1999 has conducted canteen during the relevant period and
he has not at all a member of the society, but, the first accused without
observing Rules of the society, has sold groceries to the second accused on
credit basis and the third accused found therein has created bogus records.
Therefore, it is quite clear that without common intention amongst accused, the
first accused would not have given groceries to the second accused on credit
basis.
50.At this juncture, it would be more useful to look into the evidence of
one eyewitness by name Madasamy and he has been examined as PW8 in Calendar Case
Nos.60 to 62 of 1999. He has stated in his evidence that during the relevant
period, he served as Bill Clerk in the society and at that time the first
accused has served as Special Officer and the third accused viz., Chandira has
served as Clerk and the second accused viz., Murugan has run a canteen and he
is not at all a member of the society. On 02.03.1994 the first and third
accused have asked him to give groceries to the second accused viz., Murugan on
credit basis and on various dates, he has given groceries to the second accused
viz., Murugan on credit basis. Therefore, it is quite clear that only with the
connivance of all the accused, the second accused has received groceries from
the society on credit basis, even though he is not at all a member of the same.
Therefore, the Court cannot come to a conclusion that the second accused viz.,
Murugan has not committed any offence. Under the said circumstances, the
argument advanced by the learned counsel appearing for the revision petitioner
in Criminal Revision Case Nos.730 to 732 of 2005 is really sans merit.
51.The learned counsel appearing for the revision petitioner in Criminal
Revision Case Nos.1025 to 1030 of 2003 has also contended with great vehemence
that in respect of the alleged defalcation one Balagurunathan has been appointed
as enquiry officer and he has not conducted enquiry within a period as
contemplated under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983
and he has submitted his enquiry report on 11.08.1997 and all these cases have
been instituted only in the year 1999 and therefore, all the criminal
proceedings taken against the first accused are barred by limitation and on that
ground also, the entire case of the prosecution is liable to be rejected.
52.In support of his contention, he has drawn the attention of the Court
to the decision reported in 2007 (2) MLJ (crl) 642 (A.Kannan Vs. State rep. by
the Inspector of Police, C.C.I.W. C.I.D. Police, Coimbatore) wherein this Court
has held that as aper Section 81 of the Tamil Nadu Co-operative Societies Act,
enquiry to be mandatorily completed within nine months from date of order of
enquiry and hence complaint is barred by limitation under Section 81(4) of the
said Act.
53.For better appreciation, it would be more useful to look into Section
81(4) of the said Act and the same reads as follows;
“The inquiry shall be completed within a period of three months from the
date of ordering the inquiry or such further period or periods not exceeding
three months at a time as the next higher authority may permit, provided that
such extended periods shall not exceed six months in the aggregate.”
54.From the close reading of the said Section, it is made clear to the
Court that enquiry contemplated under Section 81 of the said Act, should be
completed within nine months in aggregation, but, nowhere it is stated in the
said Section that if any enquiry completed after the said period, the same would
be a bar to launch prosecution against the accused concerned. It is an axiomatic
principle of law that enquiry under Section 81(4) of the said Act is only to
find out civil liability of the persons concerned, whereas in the present cases
criminal liability of the accused has to be decided.
55.As adverted to earlier, the trial Court has found the first accused
guilty under various sections. But, the first appellate Court hss found him
guilty under Section 409 of the Indian Penal Code. For all the offences
mentioned in Indian Penal Code, the only limitation is mentioned in Section 468
of the Code of Criminal Procedure. As per Section 468 of the Code of Criminal
Procedure, the present criminal proceedings initiated against the first accused
are not at all barred by limitation. In fact, in the decision referred to
supra, Section 468 of the Code of Criminal Procedure, has not been invoked.
Under the said circumstances, it is needless to say that the above limb of
argument advanced by the learned counsel appearing for the revision petitioner
in Criminal Revision Case Nos.1025 to 1030 of 2003 is not legally correct.
56.The learned counsel appearing for the revision petitioner in Criminal
Revision Case Nos.1025 to 1030 of 2003 has also vehemently contended that even
though the first accused has acted with negligence, he has not done any wilful
negligence and his mere negligence is not at all sufficient to fasten liability
against him and the Courts below have failed to consider the laches alleged to
have been committed by him and therefore, the concurrent judgments passed by the
Courts below are liable to be set aside.
57.In support of his contention, he has drawn the attention of the Court
to the decision reported in 1976 (2) MLJ (crl.) 460 (Subbammal @ Rajammal and
others Vs. The President, The Tenkasi Co-operative Urban Bank Ltd., Tenkasi (in
Liquidation) through its Special Officer, having its Office at Kokirakulam,
Tirunelveli) wherein this Court has held that surcharge notice against ex-
President and ex-Vice-President and there is no wilful negligence on their part
and their mere negligence is not sufficient to fasten liability.
58.In the instant case, it has been pointed out in many places that the
first accused by way of flouting the mandatory rules of the society, has
supplied groceries to the second accused viz., Murugan, who conducted canteen
and further his primary duty is to administer the entire assets of the society
and further he is solely responsible for all the acts and omissions. Therefore,
the Court cannot come to a conclusion even for a minute that the first accused
has not done wilful negligence and he has done only a mere negligence.
Therefore, the dictum found in the decision referred to above is not at all
suitable to the facts and circumstances of the present case. Under the said
circumstances, the argument advanced by the learned counsel appearing for the
revision petitioner in Criminal Revision Case Nos.1025 to 1030 of 2003 is really
sans merit.
59.The learned counsel appearing for the revision petitioner in Criminal
Revision Case Nos.1025 to 1030 of 2003 has also argued that of-course due
to negligence of the first accused, the society has sustained loss and instead
of sentencing the first accused, he may be directed to pay compensation.
60.In support of his contention, he has drawn the attention of the Court
to the decision reported in 2000 Criminal Law Journal 2428 (State Vs.
Hanamappa) (Karnataka High Court) wherein it has been held that a fine of at
least three times the amount involved may be imposed on the accused so that the
aggrieved party or the institution can be adequately compensated.
61.The learned counsel appearing for the revision petitioner in Criminal
Revision Case Nos.1025 to 1030 of 2003 has also drawn the attention of the Court
to the decision reported in 2007 (1) MLJ (crl) 1054 (P.Selvarajan Vs. State,
rep. by S.P.E.CBI GOW, Cochin and another) wherein this Court has held that
considering physical condition of the accused sentence of “till rising of the
Court” can be imposed.
62.At this juncture, it would be more useful to look into Section 53 of
the Indian Penal Code and the same reads as follows;
“The punishments to which offenders are liable under the provisions of
this Code are-
First-Death;
Secondly-Imprisonment for life;
[Clause Thirdly omitted by Act 17 of 1949]
Fourthly-Imprisonment, which is of two descriptions, namely:-
(1)Rigorous, that is, with hard labour;
(2)Simple;
Fifthly-Forfeiture of property;
Sixthly-Fine.”
Nowhere in Section 53 of the Indian Penal Code it is stated that the
Court can impose sentence to the extent of “till rising of the Court”.
63.For better appreciation, the Court can look into the decision reported
in AIR 2000 Supreme Court Cases 164 (State of Uttar Pradesh Vs. Chandrika)
wherein the Honourable Apex Court has held that if accused confesses his guilt,
appropriate sentence is required to be imposed. Further, the approach of the
court in appeal or revisions should be to find out whether the accused is guilty
or not on the basis of evidence on record. If he is guilty appropriate sentence
is required to be imposed or maintained. If the appellant or his counsel
submits that he is not challenging the order of conviction as there is
sufficient evidence to connect the accused with the crime, then also the Court’s
conscious must be satisfied before passing final order that the said concession
is based on the evidence on record. In such cases, sentence commensurating with
the crime committed by the accused is required to be imposed. Mere acceptance
or admission of the guilt should not be ground for reduction of sentence. Nor
can the accused bargain with the Court that as he is pleading guilty, sentence
be reduced.
64.From the close reading of the decision rendered by the Apex Court,
every court is bound to impose sentence commensurating with the crime committed
by the accused. Mere acceptance or admission of the guilt, should not be a
ground for reduction of sentence. Therefore, it is pellucid that sentence
should be imposed on the basis of the gravity of offences committed by the
accused.
65.In the instant case, the prosecution has adduced replete evidence to
show that the first accused has caused heavy loss to the society. Therefore,
sentence cannot be given to him till “rising of the Court” and the same is not
at all contemplated in Section 53 of the Indian Penal Code. The Courts below
have sentenced him to undergo one year rigorous imprisonment under Section 409
of the Indian Penal Code. Since he has caused heavy loss to the society, it is
needless to say that the sentence imposed against him by the Courts below is
perfectly correct and the same is in consonance with the gravity of the offences
committed by him. Therefore, the above limb of argument advanced by the learned
counsel appearing for the revision petitioner in Criminal Revision Case Nos.1025
to 1030 of 2003 is not having attractive force.
66.The Courts below after having thorough discussion, have rightly
sentenced the first and second accused and in view of the discussion made
earlier, this Court has not found even a flimsy ground to make interference with
the well merited judgments passed by the Courts below and altogether all the
criminal revision cases deserve dismissal.
67.In fine, Criminal Revision Case Nos.1025 to 1030 of 2003, 730 to 732
of 2005 deserve dismissal and accordingly are dismissed. The conviction and
sentence passed by the trial Court against the revision petitioners/accused,
upheld by the first appellate Court are confirmed. The trial Court is directed
to take appropriate steps to incarcerate them in prison so as to serve out the
remaining period of sentence.
gcg
To
1.The Additional Sessions cum
Chief Judicial Magistrate,
Tuticorin.
2.The Judicial Magistrate No.II,
Tirunelveli.
2.The Sub-Inspector of Police,
C.C.I.W. C.I.,
Tuticorin District.