Bail SlipThe v. State byThe Inspector of Police,Commercial Crime Investigation Wing,Cuddalore, Cuddalore Dist

Bail SlipThe Appellants/Accused Viz.1.N.Selvaraj, 2) P.Bhuvaraghavan,N.Selvaraj, 1.N.Manikandan,2.N.Selvaraj, 3.P.Bhuvaraghavan weredirected to be released on bail as per order of this Court dated20.3.2007 and made in Crl.M.P.Nos.1+1+1/2007 in Crl.R.C.Nos.444,445& 446/2007.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23..07..2009CORAMTHE HONOURABLE MR. JUSTICE G.RAJASURIACRL.RC.Nos.444, 445 and 446 of 20071.N.Selvaraj2.P.Bhuvaraghavan... Petitioners in Crl.R.C.No.444 of 2007(Appellants Accused 2 & 3)1.N.Selvaraj... petitioner in Crl.R.C.No.445 of 2007 (Appellant/Accused)1.N.Manikandan2.N.Selvaraj3.P.Bhuvaraghavan... Petitioners in Crl.R.C.No.446 of 2007(Appellants/Accused)vs.State byThe Inspector of Police,Commercial Crime Investigation Wing,Cuddalore, Cuddalore Dist.... Respondent in all the revisions/ComplainantCriminal Revision cases filed under Sections 397 and 401 ofCr.P.C., against the judgements dated 8.3.2007 passed by thelearned Additional District and Sessions Judge(F.T.C.III),Vridhachalam, in Criminal Appeal Nos.99, 101 and 100 of 2006confirming the judgements dated 14.7.2006 passed by the JudicialMagistrate, Neyveli, in C.C.Nos.254, 256 and 255 of 2003.For petitioners : Mr.Lenin Balu For Respondent : Mr.R.Muniyapparaj,G.A. https://hcservices.ecourts.gov.in/hcservices/ C O M M O N O R D E R Animadverting upon the judgements dated 8.3.2007 passed by thelearned Additional District and Sessions Judge(F.T.C.III),Vridhachalam, in Criminal Appeal Nos.99, 101 and 100 of 2006confirming the judgements dated 14.7.2006 passed by the JudicialMagistrate, Neyveli, in C.C.Nos.254, 256 and 255 of 2003, thesecriminal revision cases are focussed.2. A 'resume' of facts absolutely necessary and germane forthe disposal of this Criminal Revision petition would run thus:(a) The police laid the police report in terms of Section 173of Cr.P.C., as against the accused for the following offences:Case No.AccusedoffenceC.C.No.254 of 2003Ramanujam, SelvarajandBhuvaraghavanSec.477(A) and 408r/w.109 IPC C.C.No.256 of 2003SelvarajSec.408 IPCC.C.No.255 of 2003Manigandan, SelvarajandBhuvaraghavanSec.408 r/w.109 IPCInasmuch as the accused pleaded not guilty, the trial wasconducted.(b) On the side of the prosecution P.W.s 1 and 2 were examinedand Exs.P1 to P3 were marked. On the accused's side, no oral ordocumentary evidence was adduced.(c) During the pendency of the above cases, the accused filedpetition confessing their guilt. However, they pleaded for mercyand also sought their release on probation of good conduct. (d) The learned Magistrate, after conducting the trial gave afinding that the accused committed the offence and accordingly,recorded the convictions and imposed the sentences as under: https://hcservices.ecourts.gov.in/hcservices/ Case No.AccusedoffencePunishmentC.C.No.254 of2003Ramanujam,Selvaraj andBhuvaraghavanSec.477(A)and 408r/w.109 IPC Six monthsrigorousimprisonmentand fine ofRs.2500/-indefault, twomonthsrigorousimprisonmentC.C.No.256 of2003SelvarajSec.408 IPCSix monthsrigorousimprisonmentand fine ofRs.2500/-,indefault, twomonthsrigorousimprisonmentC.C.No.255 of2003Manigandan,Selvaraj andBhuvaraghavanSec.408r/w.109 IPCSix monthsrigorousimprisonmentand fine ofRs.2500/-,indefault, twomonthsrigorousimprisonment (e) Being aggrieved by and disconcerted with the judgements ofthe lower Court, the appeals in C.A.Nos.99, 101 and 100 of 2006were preferred before the Additional District and Sessions Judge(F.T.C.-III), Vridhachalam, which Court reduced the sentence asunder: https://hcservices.ecourts.gov.in/hcservices/ Case No.AccusedoffencePunishmentC.A.No.99 of 2006Ramanujam,Selvaraj andBhuvaraghavanSec.477(A)and 408r/w.109 IPC One monthrigorousimprisonmentand fine ofRs.2500/-indefault, twomonthsrigorousimprisonmentC.A.No.101 of2006SelvarajSec.408 IPCOne monthrigorousimprisonmentand fine ofRs.2500/-,indefault, twomonthsrigorousimprisonmentC.A.No.100 of2006Manigandan,Selvaraj andBhuvaraghavanSec.408r/w.109 IPCOne monthrigorousimprisonmentand fine ofRs.2500/-,indefault, twomonthsrigorousimprisonment 3.Challenging and impugning the judgements of the appellateCourt, these revisions are filed with the avowed objective to getthe sentences set aside and secure release on probation of goodconduct. 4. The grounds inter alia in the revisions would be to theeffect that the trial Court, without taking into consideration thefact that the entire misappropriated amounts were deposited, simplytook a draconian view of the matter and imposed the sentences,including substantive sentences of imprisonment, instead ofreleasing the accused on probation of good conduct.5. The point for consideration is as to whether the revisionpetitioners/accused, in all the three matters, are entitled to bereleased on probation of good conduct and whether there is anyperversity or non-application of law in the sentence imposed by theappellate Court.6. The learned counsel for the revision petitioners wouldimplore and entreat, pray and request that this Court taking intoconsideration the fact that the entire misappropriated amounts weredeposited, which shows the repentance of the accused, they may be https://hcservices.ecourts.gov.in/hcservices/ released on probation of good conduct. However, on behalf ofBhuvaraghavan-the Cashier, in Crl.R.C.No.444 and 446 of 2007, thelearned counsel, with all sincerity and earnestness would pray forreleasing him on probation, as according to him, he is the onlyperson, who is continuing in service at present, and if thesentence is confirmed, certainly he would loose his job and thatwould have deleterious effect on him as well as on his family.7. In support of his submission, the learned counsel cited thefollowing two decisions:(i) CDJ 2006 MHC 1621 – PONNUSWAMY VS. INSPECTOR OF POLICE,certain excerpts from it would run thus:"11.Following the judgement, the learned brotherR.Balasubramanian, J. In (2000(3) MWN (Cr) 133) as held asfollows:Inasmuch as the sum stated to have been misappropriatedhad been reimbursed by the revision petitioner/accused, Iam of the opinion that interest of justice would be met byletting off the convicted revision petitioner under thePROBATION OF OFFENDERS ACT instead of sending him toprison. There are precedents to this effect namely 1990L.W.(crl.) 172 and 1991(1) L.W.(Crl.) 355. Accordingly,while confirming the conviction of the revision petitionerin Crl.R.C.No.935/96 on the lines indicated earlier, I aminclined to invoke the provision of the PROBATION OFOFFENDERS ACT. Accordingly, while modifying theconviction imposed on the revision petitioner inCrl.R.C.No.935/96 on the lines indicated above. I setaside the sentence imposed on him for the offencesreferred to earlier and direct him to be released on hisexecuting a bond for a sum of Rs.10,000/- with one suretyeach for a likesum to the satisfaction of the learnedJudicial Magistrate No.1, Madurai within eight weeks fromtoday; to keep peace and be of good behaviour for a periodof six months and to appear and receive the sentence whencalled for during he aid period.12. The facts and circumstances cited in the above twocases are almost similar to the facts of this case. Apartfrom the fact that the petitioner has paid the entireamount said to have been misappropriated and he hadalready suffered 29 days at the pre-trial stage before hewas enlarged on bail by this Court.13. In the above circumstances, the conviction of thepetitioner is set aside and he is directed to be releasedunder Section 4 of the PROBATION OF OFFENDERS ACT and heshall execute a bond within four weeks from today in a sumof Rs.5000/- with one surety for a like sum to the https://hcservices.ecourts.gov.in/hcservices/ satisfaction of learned Judicial Magistrate No.II,Vellore, to keep the peace and be of good behaviour for aperiod of six months and to appear and receive sentencewhen called upon during such period. The conviction andsentence imposed on the petitioner under Sections 408 and477A (3 counts) are set aside and the petitioner isacquitted of those charges."(ii) CDJ 2008 MHC 668 – T.TAMILCHELVAN VS. STATE, INSPECTOR OFPOLICE, CCIW VELLORE UNIT, certain excerpts from it would run thus:"14. In the facts and circumstances of the case andtaking into consideration, the nature of offence committedby the accused, the plight of the family members of theaccused, the lapse of period during which the accusedsuffered mentally, physically and economically, and therebeing no previous conviction or adverse remark as to thecharacter or antecedents of the accused, this courtinclines to let off the accused on probation of goodconduct as provided under Section 4(1) of the PROBATION OFOFFENDERS ACT, 1958 assuring good conduct and behaviourfor a period of two years. However, considering the factthat the accused has committed criminal breach of trustand falsification of Cooperative Bank's accounts andthereby the Cooperative Bank has sustained a loss in a sumof Rs.53,843/-, under Section 5(1)(a) of the PROBATION OFOFFENDERS ACT, 1958, the accused is directed to make goodthe loss by paying the said sum to the Cooperative Bank ascompensation. As provided under Section 5(2) of the saidAct, the amount ordered above under Sub-Section (1)(a) maybe recovered as a fine in accordance with the provisionsof Sections 386 and 387 of the Criminal Procedure Code.15. In the result, the criminal revision cases arepartly allowed confirming the conviction of the revisionpetitioner/accused under Sections 408 and 477(A) IPC andsetting aside the order of sentence. The accused isreleased on probation of good conduct for a period of twoyears and in the meantime to keep the peace and be of goodbehaviour, and to appear and receive sentence when calledupon during such period. The accused is directed todeposit the misappropriated amount of Rs.58,843/- within aperiod of one month from the date of receipt of a copy ofthis order. Apart from this, the accused shall execute abond for a sum of Rs.20,000/- with two sureties each for alike sum to the satisfaction of the trial Court."8. Citing the above decisions, the learned counsel for therevision petitioners would advance and put forth his argument thatmuch of a muchness could be seen between the facts involved in theabove cited cases and this case and above all, the Cashier-Bhuvaraghavan was having only one of the keys with him and no otheroffence has been made out as against him. https://hcservices.ecourts.gov.in/hcservices/

9. Whereas the learned Government advocate would submit thatthe contention as put forth on the side of the revision petitionerscannot be countenanced and upheld by this Court for the reason thatthe accused committed social economic offences and they being theservants of the Co-operative Society, entrusted with theresponsibility to handle money, misappropriated the same, shouldnot be dealt with casually, as that would give wrong signal to thelike minded people to commit crime and the misappropriationoccurred in the co-operative Society cannot be lightly viewed. 10. At this juncture, I would like to call up and recollectthe following two decision of the Honourable Apex Court:(i) 2002(2) SUPREME 500 – STATE OF KARNATAKA VS. SHARANAPPABASNAGOUDA AREGOUDAR, an excerpt from it would run thus:"6. We are of the view that having regard to theserious nature of the accident, which resulted in the deathof four persons, the learned Single Judge should not haveinterfered with the sentence imposed by the Court below.It may create and set an unhealthy precedent and send wrongsignals to the subordinate courts which have to deal withseveral such accident cases. If the accused are foundguilty of rash and negligent driving, courts have to be onguard to ensure that they do not escape the clutches of lawvery lightly. The sentence imposed by the courts shouldhave deterrent effect on potential wrong-doers and itshould commensurate with the seriousness of the offence.Of course, the Courts are given discretion in the matter ofsentence to take stock of the wide and varying range offacts that might be relevant for fixing the quantum ofsentence, but the discretion shall be exercised with dueregard to larger interest of the society and it is needlessto add that passing of sentence on the offender is probablythe most public face of the criminal justice system."11. A plain reading of the above decision even though emergedin relation to Section 304-A IPC, highlight and spotlight thedictum that the sentence imposed should have deterrent effect onpotential wrong-doers; it should be in commensurate with theseriousness and gravity of the offence and it should not give wrongsignal to the offenders or persons having criminal propensity tocommit crime. In fact, the Supreme Court very effectively pointedout that the sentence pattern is actually the public face ofcriminal justice system and the Honourable Apex Court also lookedaskance at and found fault with the attitude of the lower Courts ininvoking Probation of Offenders Act in matters warrantingimprisonment. 12. In my considered opinion the said Bhuvaraghavan isinvolved in two criminal cases as set out supra for having https://hcservices.ecourts.gov.in/hcservices/ misappropriated Rs.23,391/- relating to C.C.No.255 of 2003 andRs.45,210/- relating to C.C.No.254 of 2003.13. Whereas, the learned counsel for the revision petitioners,by inviting the attention of this Court to the fact that witheffect from 1.3.1999 only Bhuvaraghavan joined the services of Co-operative Society and for the misappropriation committed anteriorto the said date, he would not be fastened with any liability. 14. Even accordingly if viewed, in C.C.No.255 of 2003, out ofthe total misappropriated sum of Rs.24,641/-, Bhuvaraghavan is notliable for one entry for a sum of Rs.1,250/- and for the remainingamounts his liability is beyond doubt. Relating to C.C.No.254 of2003, the total misappropriated amount was Rs.54,312/-, in whichexcept for two items, namely, Rs.5,050/- (4th entry) and Rs.4,052/-(15th entry) Bhuvaraghavan is also liable for the remainingmisappropriated amount, as he entered service even as on 1.3.1999.As such, the seriousness of the misappropriated amount is writlarge and in such a case, I am of the considered opinion thatinvoking Section 4 of the Probation of Offenders Act in thepeculiar facts and circumstances of this case does not arise at alland strictly adhering to the decision of the Honourable Apex Court,I would like to view this matter as a serious one, not capable ofattracting Section 4 of the Probation of Offenders Act.15. The appellate Court itself showed sufficient leniency inreducing the sentence to the maximum extent possible. 16. The learned counsel for the revision petitioners wouldmake an extemporary submission to the effect that the appellateCourt awarded one month imprisonment as against each of the accusedand those sentences are ordered to run concurrently also; each ofthe accused already underwent punishment totally to a tune of 24days and the same may be awarded as punishment, so that, forcompleting the one month imprisonment imposed by the appellateCourt, the accused need not go to the jail for the remaining oneweek only, after a long lapse of time. The Government Advocatealso would confirm the factual position.17. I could see considerable force in the submission made bythe learned counsel for the revision petitioners. Accordingly, thesentence already undergone by the accused is imposed as sentence byreducing the sentence imposed by the first appellate Court. https://hcservices.ecourts.gov.in/hcservices/

18. In the result, the criminal revision cases are partlyallowed and the rest of the findings and sentence imposed areconfirmed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmskTo1.The Additional District and Sessions Judge(F.T.C.III), Vridhachalam2.The Judicial Magistrate, Neyveli.3.The Chief Judicial Magistrate,Cuddlore.4.The District Munsif cum Judicial Magistrate,Neyveli,Cuddalore District.5.The Superintendent,Central Prison, Cuddalore.6.The Public Prosecutor,High Court,Madras.7.The Inspector of Police,Commercial Crime Investigation Wing,Cuddalore, Cuddalore District.PKB(CO)km/7.8.CRL.RC.Nos.444, 445 and 446 of 2007