State of Haryana vs Siri Dutt

Harjit Singh Bedi, J.

This appeal is directed against the judgment of the Judicial Magistrate Ist Class, Hisar, dated September 18, 1985 whereby the respondent has been acquitted of the charge under Section 409 of the Indian Penal Code.

The facts of the case relevant to the disposal of the appeal are that the respondent was posted as a cashier in the Bichhpari Agricultural Service Cooperative Society in the year 1974 and during that period he allegedly embezzled a sum of Rs. 57,541.47 that had been given to him as cashier of the society. After completion of the investigation a challan under Sections 408/406 IPC was filed against the respondent and he was put to trial, which, as already indicated, resulted in his acquittal.

In order to prove its case, the prosecution examined as many as 42 witnesses and also produced in evidence cash book Ex.PA, entry in cash book Ex.PW.1/A and an affidavit Ex.PW.1/B sworn by the respondent before the Assistant Registrar Cooperative Societies in which he had admitted his liability to pay the aforesaid amount within a certain period. It has come in evidence that on the failure to make the payment aforesaid, the FIR was registered against the respondent.

The trial Court discussed the ocular evidence and came to a firm finding that as there was no documentary evidence inculpating the accused and even the documentary evidence that ought to have been in the custody of the prosecution had not been produced, the case against the respondent could not be proved. While dealing with the affidavit Ex.PW1/Bthe court found that as the said affidavit had been procured by applying an inducement and a promise it had no value as it was hit by section 25 of the Indian Evidence Act and as it had not been recorded by a Magistrate in the manner indicated in section 26, it could not be taken into evidence.

Mr. Varinder Singh, learned Deputy AdvocateGeneral appearing for the State of Haryana, has urged that it would be difficult for him in an appeal against acquittal to induce this Court to seek a reversal of the findings of fact recorded by the trial Court with regard to the ocular evidence, but he has asserted that the observation of the court that the affidavit in question could not be looked into as it was hit by section 25 of the Evidence Act and was not admissible in evidence under Section 26 thereof was not in order as the confession by way of affidavit had not been made to a police officer or during the course of investigation, by the respondent who till then had not been accused of any offence. On this basis it has been urged that the respondent was liable to conviction on the basis of his confession alone.

As against this, Mr. D.S. Bali, learned Senior Advocate, appearing for the respondent, while not seriously controverting the legal submission made by Mr. Varinder Singh with regard to the affidavit in question, has urged that as the embezzlement pertained to the year 1974 and the matter had been hanging over in this court for almost 21 years now, it would be futile to send the accused to serve a sentence as he was willing to pay the amount which was due from him.

After hearing learned counsel for the parties, we find that the second submission of Mr. Bali appears to have some merit. It is significant that in the affidavit Ex.PW1/B the respondent has admitted that he was liable to pay the sum of Rs. 57541.47 by October 30, 1974 and that in case of default he would be criminally liable for the said amount. It is also the admitted case that a sum of Rs. 14,000/ has been paid out of the aforesaid amount. Mr. Bali, as already indicated, has stated that the respondent would be willing to pay the balance amount with such reasonable interest which this Court might determine. This appeal is accordingly allowed; the order of the trial Court is set aside and the conviction of the respondent is modified to that under Section 408 IPC and he is sentenced to one day''s simple imprisonment and a fine of Rs. 75,000/ to be paid into the trial Court in the following three equal instalments :

1st Instalment due on 1.10.1995.

2nd Instalment due on 1.5.1996.

3rd Instalment due on 1.10.1996.

It is also clarified that in case the respondent fails to make the payment of any one instalment on the aforesaid due dates, he shall undergo RI for six months in default. The fine, if deposited, shall be paid to the Bichhpari Agricultural Service Cooperative Society.