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Judgment
G. Rajasuria, J.—Animadverting upon the judgements dated 8.3.2007 passed by the learned Additional District and Sessions
Judge(F.T.C.III), Vridhachalam, in Criminal Appeal Nos. 99, 101 and 100 of 2006 confirming the judgements dated 14.7.2006 passed by the
Judicial Magistrate, Neyveli, in C.C. Nos. 254, 256 and 255 of 2003, these criminal revision cases are focussed.
A ''resume'' of facts absolutely necessary and germane for the disposal of this Criminal Revision petition would run thus:
(a) The police laid the police report in terms of Section 173 of Cr.P.C., as against the accused for the following offences:
Case No. Accused offence
C.C.No.254 of 2003 Ramanujam, Selvaraj and Section 477(A) and 408 r/w.
Bhuvaraghavan 109 IPC
C.C.No.256 of 2003 Selvaraj Section 408 IPC
C.C.No.255 of 2003 Manigandan, Selvaraj and Section 408 r/w. 109 IPC
Bhuvaraghavan
Inasmuch as the accused pleaded not guilty, the trial was conducted.
(b) On the side of the prosecution P.W.s 1 and 2 were examined and Exs.P1 to P3 were marked. On the accused''s side, no oral or documentary
evidence was adduced.
(c) During the pendency of the above cases, the accused filed petition confessing their guilt. However, they pleaded for mercy and also sought their
release on probation of good conduct.
(d) The learned Magistrate, after conducting the trial gave a finding that the accused committed the offence and accordingly, recorded the
convictions and imposed the sentences as under:
Case No. Accused offence Punishment
C.C.No.254 of 2003 Ramanujam, Selvaraj Section 477(A) Six months rigorous
and Bhuvaraghavan and 408 r/w. 109 imprisonment and
IPC fine of Rs.2500/- in
default ,two months
rigorous
imprisonment
C.C.No.256 of 2003 Selvaraj Section 408 IPC Six months rigorous
imprisonment and
fine of Rs.2500/-, in
default ,two months
rigorous
imprisonment
C.C.No.255 of 2003 Manigandan, Selvaraj Section 408 r/w. Six months rigorous
and Bhuvaraghavan 109 IPC imprisonment and
fine of Rs.2500/-, in
default ,two months
rigorous
imprisonment
(e) Being aggrieved by and disconcerted with the judgements of the lower Court, the appeals in C.A. Nos. 99, 101 and 100 of 2006 were
preferred before the Additional District and Sessions Judge (F.T.C.-III), Vridhachalam, which Court reduced the sentence as under:
Case No. Accused offence Punishment
C.A.No.99 of 2006 Ramanujam, Selvaraj Section 477(A) One month rigorous
and Bhuvaraghavan and 408 r/w. 109 imprisonment and
IPC fine of Rs.2500/- in
default ,two months
rigorous
imprisonment
C.A.No.101 of 2006 Selvaraj Section 408 IPC One month rigorous
imprisonment and
fine of Rs.2500/-, in
default ,two months
rigorous
imprisonment
Case No. Accused offence Punishment
C.A.No.100 of 2006 Manigandan, Selvaraj Section 408 r/w. One month rigorous
and Bhuvaraghavan 109 IPC imprisonment and
fine of Rs.2500/-, in
default ,two months
rigorous
imprisonment
Challenging and impugning the judgements of the appellate Court, these revisions are filed with the avowed objective to get the sentences set
aside and secure release on probation of good conduct.
The grounds inter alia in the revisions would be to the effect that the trial Court, without taking into consideration the fact that the entire
misappropriated amounts were deposited, simply took a draconian view of the matter and imposed the sentences, including substantive sentences
of imprisonment, instead of releasing the accused on probation of good conduct.
The point for consideration is as to whether the revision petitioners/accused, in all the three matters, are entitled to be released on probation of
good conduct and whether there is any perversity or non-application of law in the sentence imposed by the appellate Court.
The learned Counsel for the revision petitioners would implore and entreat, pray and request that this Court taking into consideration the fact
that the entire misappropriated amounts were deposited, which shows the repentance of the accused, they may be released on probation of good
conduct. However, on behalf of Bhuvaraghavan-the Cashier, in Crl.R.C. No. 444 and 446 of 2007, the learned Counsel, with all sincerity and
earnestness would pray for releasing him on probation, as according to him, he is the only person, who is continuing in service at present, and if the
sentence is confirmed, certainly he would loose his job and that would have deleterious effect on him as well as on his family.
In support of his submission, the learned Counsel cited the following two decisions:
(i) CDJ 2006 MHC 1621 - Ponnuswamy v. Inspector of Police, certain excerpts from it would run thus:
Following the judgement, the learned brother R. Balasubramanian, J. In (2000(3) MWN (Cr) 133) as held as follows:
Inasmuch as the sum stated to have been misappropriated had been reimbursed by the revision petitioner/accused, I am of the opinion that interest
of justice would be met by letting off the convicted revision petitioner under the Probation of Offenders Act instead of sending him to prison. There
are precedents to this effect namely 1990 L.W.(crl.) 172 and 1991(1) L.W.(Crl.) 355. Accordingly, while confirming the conviction of the revision
petitioner in Crl. R.C. No. 935/96 on the lines indicated earlier, I am inclined to invoke the provision of the Probation of Offenders Act.
Accordingly, while modifying the conviction imposed on the revision petitioner in Crl. R.C. No. 935/96 on the lines indicated above. I set aside the
sentence imposed on him for the offences referred to earlier and direct him to be released on his executing a bond for a sum of Rs. 10,000/- with
one surety each for a likesum to the satisfaction of the learned Judicial Magistrate No. 1, Madurai within eight weeks from today; to keep peace
and be of good behaviour for a period of six months and to appear and receive the sentence when called for during he aid period.
The facts and circumstances cited in the above two cases are almost similar to the facts of this case. Apart from the fact that the petitioner has
paid the entire amount said to have been misappropriated and he had already suffered 29 days at the pre-trial stage before he was enlarged on bail
by this Court.
In the above circumstances, the conviction of the petitioner is set aside and he is directed to be released u/s 4 of the Probation of Offenders
Act and he shall execute a bond within four weeks from today in a sum of Rs. 5000/- with one surety for a like sum to the satisfaction of learned
Judicial Magistrate No. II, Vellore, to keep the peace and be of good behaviour for a period of six months and to appear and receive sentence
when called upon during such period. The conviction and sentence imposed on the petitioner under Sections 408 and 477A (3 counts) are set
aside and the petitioner is acquitted of those charges.
(ii) CDJ 2008 MHC 668 - T. Tamilchelvan v. State, Inspector of Police, Cciw Vellore Unit, certain excerpts from it would run thus:
In the facts and circumstances of the case and taking into consideration, the nature of offence committed by the accused, the plight of the family
members of the accused, the lapse of period during which the accused suffered mentally, physically and economically, and there being no previous
conviction or adverse remark as to the character or antecedents of the accused, this Court inclines to let off the accused on probation of good
conduct as provided u/s 4(1) of the Probation of Offenders Act, 1958 assuring good conduct and behaviour for a period of two years. However,
considering the fact that the accused has committed criminal breach of trust and falsification of Cooperative Bank''s accounts and thereby the
Cooperative Bank has sustained a loss in a sum of Rs. 53,843/-, u/s 5(1)(a) of the Probation of Offenders Act, 1958, the accused is directed to
make good the loss by paying the said sum to the Cooperative Bank as compensation. As provided u/s 5(2) of the said Act, the amount ordered
above under Sub-section (1)(a) may be recovered as a fine in accordance with the provisions of Sections 386 and 387 of the Criminal Procedure
Code.
In the result, the criminal revision cases are partly allowed confirming the conviction of the revision petitioner/accused under Sections 408 and
477(A) IPC and setting aside the order of sentence. The accused is released on probation of good conduct for a period of two years and in the
meantime to keep the peace and be of good behaviour, and to appear and receive sentence when called upon during such period. The accused is
directed to deposit the misappropriated amount of Rs. 58,843/- within a period of one month from the date of receipt of a copy of this order.
Apart from this, the accused shall execute a bond for a sum of Rs. 20,000/- with two sureties each for a like sum to the satisfaction of the trial
Court.
Citing the above decisions, the learned Counsel for the revision petitioners would advance and put forth his argument that much of a muchness
could be seen between the facts involved in the above cited cases and this case and above all, the Cashier-Bhuvaraghavan was having only one of
the keys with him and no other offence has been made out as against him.
Whereas the learned Government advocate would submit that the contention as put forth on the side of the revision petitioners cannot be
countenanced and upheld by this Court for the reason that the accused committed social economic offences and they being the servants of the Co-
operative Society, entrusted with the responsibility to handle money, misappropriated the same, should not be dealt with casually, as that would
give wrong signal to the like minded people to commit crime and the misappropriation occurred in the co-operative Society cannot be lightly
viewed.
At this juncture, I would like to call up and recollect the following two decision of the Honourable Apex Court:
(i) 2002(2) Supreme 500 - State of Karnataka v. Sharanappa Basnagouda Aregoudar, an excerpt from it would run thus:
We are of the view that having regard to the serious nature of the accident, which resulted in the death of four persons, the learned Single Judge
should not have interfered with the sentence imposed by the Court below. It may create and set an unhealthy precedent and send wrong signals to
the subordinate courts which have to deal with several such accident cases. If the accused are found guilty of rash and negligent driving, courts
have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent
effect on potential wrong-doers and it should commensurate with the seriousness of the offence. Of course, the Courts are given discretion in the
matter of sentence to take stock of the wide and varying range of facts that might be relevant for fixing the quantum of sentence, but the discretion
shall be exercised with due regard to larger interest of the society and it is needless to add that passing of sentence on the offender is probably the
most public face of the criminal justice system.
A plain reading of the above decision even though emerged in relation to Section 304A IPC, highlight and spotlight the dictum that the sentence
imposed should have deterrent effect on potential wrong-doers; it should be in commensurate with the seriousness and gravity of the offence and it
should not give wrong signal to the offenders or persons having criminal propensity to commit crime. In fact, the Supreme Court very effectively
pointed out that the sentence pattern is actually the public face of criminal justice system and the Honourable Apex Court also looked askance at
and found fault with the attitude of the lower Courts in invoking Probation of Offenders Act in matters warranting imprisonment.
In my considered opinion the said Bhuvaraghavan is involved in two criminal cases as set out supra for having misappropriated Rs. 23,391/-
relating to C.C. No. 255 of 2003 and Rs. 45,210/- relating to C.C. No. 254 of 2003.
Whereas, the learned Counsel for the revision petitioners, by inviting the attention of this Court to the fact that with effect from 1.3.1999 only
Bhuvaraghavan joined the services of Co-operative Society and for the misappropriation committed anterior to the said date, he would not be
fastened with any liability.
Even accordingly if viewed, in C.C. No. 255 of 2003, out of the total misappropriated sum of Rs. 24,641/-, Bhuvaraghavan is not liable for
one entry for a sum of Rs. 1,250/- and for the remaining amounts his liability is beyond doubt. Relating to C.C. No. 254 of 2003, the total
misappropriated amount was Rs. 54,312/-, in which except for two items, namely, Rs. 5,050/- (4th entry) and Rs. 4,052/-(15th entry)
Bhuvaraghavan is also liable for the remaining misappropriated amount, as he entered service even as on 1.3.1999. As such, the seriousness of the
misappropriated amount is writ large and in such a case, I am of the considered opinion that invoking Section 4 of the Probation of Offenders Act
in the peculiar facts and circumstances of this case does not arise at all and strictly adhering to the decision of the Honourable Apex Court, I would
like to view this matter as a serious one, not capable of attracting Section 4 of the Probation of Offenders Act.
The appellate Court itself showed sufficient leniency in reducing the sentence to the maximum extent possible.
The learned Counsel for the revision petitioners would make an extemporary submission to the effect that the appellate Court awarded one
month imprisonment as against each of the accused and those sentences are ordered to run concurrently also; each of the accused already
underwent punishment totally to a tune of 24 days and the same may be awarded as punishment, so that, for completing the one month
imprisonment imposed by the appellate Court, the accused need not go to the jail for the remaining one week only, after a long lapse of time. The
Government Advocate also would confirm the factual position.
I could see considerable force in the submission made by the learned Counsel for the revision petitioners. Accordingly, the sentence already
undergone by the accused is imposed as sentence by reducing the sentence imposed by the first appellate Court.
In the result, the criminal revision cases are partly allowed and the rest of the findings and sentence imposed are confirmed.