Criminal Revision Nos. 2307 to 2317 of 2005 v. State of Haryana

Mr. Ashit Malik, Advocate for the petitioner. Mr. J.S. Rattu, DAG, Haryana for the respondent A.N. Jindal, J This judgment of mine shall dispose of 11 connected revision petition Nos. 2307 to 2317 of 2005, preferred against the judgment dated

6.10.2005 passed by the Additional Sessions Judge, Sonepat, dismissing the appeal against the judgment dated 13.5.2004 passed by the Judicial Magistrate Ist Class, Gohana, convicting and sentencing the accused- petitioner (herein referred as, 'the petitioner') to undergo rigorous imprisonment for three years and to pay fine of Rs.2000/- in each case. All the cases involve the similar allegations, therefore, the facts are picked up from the case of Wazir Singh i.e. Criminal Revision No. 2307 of 2005. In nutshell, the allegations are that on 10.10.1998, on receipt of the letter No.F-4/2/98 dated 24.9.1998 by the Station House Officer, Police Station Baroda, a case was registered against the accused that he had embezzled a lot of money during the period w.e.f. 5.7.1995 to 27.8.1998 and had misappropriated the same. The amounts related to the deposits made by the various account holders in the saving bank account.

He had also made forged entries with regard to withdrawals in the pass books of the depositors but did not make such entries in the Branch Post Office SB Journal and also did not account for any of these accounts to the government account. He also made fake entries with regard to interest in the certain pass books. On checking of the entire record, it came to the light that the accused had embezzled a sum of Rs.89017/-. The case was registered against the Criminal Revision Nos. 2307 to 2317 of 2005 -2- *** accused and investigated. Statements of the witnesses were recorded. On completion of the investigation and other formalities, different challans were presented in connection with the different amounts which were misappropriated. The accused was charged under Section 409 IPC to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Vijay Kumar Malhotra, Senior Post Master (PW1), Mahabir Singh, Asstt.

Supdt. Post Officers, Sonepat (PW2), Brij Mohan Soni, Sub Divisional Inceptor (PW3), C. Subhash (PW4), SI/SHO Mahender Singh (PW5), Inspector Ram Parkash (PW6), SI Rajender Singh (PW7), Mahender Singh (PW8), Jagbir Singh (PW9) and Surender Kumar Singla, Inspector Post Office (PW10). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. Ultimately, the trial resulted into conviction. His appeals also failed. Arguments heard. Record perused. The learned counsel for the petitioner while supporting his case has reiterated the arguments as submitted by him before the Appellate Court including that no sanction for his prosecution was obtained under Section 197 Cr.P.C. It appears that the courts below have touched all the points as raised by him and have been properly answered. As regards the embezzlement, both the courts below have held that the accused has been preparing the false record making false entries in the pass books with regard to deposit and did not make corresponding entries in the relevant registers of the Postal Department.

Vijay Kumar Malhotra (PW1) has stated that the government money was embezzled out of 16 different saving accounts of different persons to the tune of Rs.89017/-. He has disclosed the name of certain depositors i.e. Raghbir, Azad, Ompati, Bhagwn which is quite obvious from the record. He has further deposed that the complaint Ex.P1 is based on the enquiry report and the records sent by the Sub Divisional Inspector Gohana. Mahabir Singh (PW2) has proved the recovery memo Criminal Revision Nos. 2307 to 2317 of 2005 -3- *** Ex.PW2/A vide which pass books and the other records of Jagbir Singh were taken into possession. Brij Mohan (PW3) has deposed that the police took the record into possession vide recovery memo Ex.PW3/A in his presence. Subhash Singh (PW5) has deposed that on 19.1.1999, the accused was interrogated and he (accused) made a disclosure statement Ex.PW5/A that he had hidden the copies of the depositors in his house in an almirah.

Ram Parkash Inspector (PW7) has recorded the FIR Ex.PW7/B and made endorsement over the complaint Ex.PW7/A. SI Rajender Singh (PW8) is the author of the report under Section 173 Cr.P.C. Jagbir Singh (PW10) has deposed that he is account holder of account No.663085, pass Book Ex.PW10/B. According to him, though he has been depositing the amount and the accused used to make the entries in the pass book but he did not make such corresponding entries in the ledger and the amount was never deposited in the Post Office. He further deposed that he had complained against the accused and reported the matter to the higher authorities. Surender Kumar Singla (PW11) has testified tht as per directions made by the Sub Divisional Officer, he conducted enquiry regarding the transaction carried out during the tenure of the accused and observed that the accused though made entries in the pass book but did not make such entries in the ledger regarding the amount deposited by various depositors and embezzled the same.

As regards the question of sanction, it may be observed that Section 197 Cr.P.C. has not been incorporated in the Code to create a wall around the public servant so as to protect them from prosecution for a criminal offence committed by them which have no proximity or nexus with his duties. The object of the section is only to enable the public servant to perform his duties fearlessly and in order to avoid their prosecution on the basis of the fictitious allegations when there is a close nexus between the act done and the nature of duties then in such a case sanction was required but the same does not apply when it had no connection with his duties. The allegations in the case are that the accused misappropriated the deposits/funds of the depositors and the same were never accounted by him to the Baroda Post Office or to the depositors. Such acts were totally unconnected to the duties as public servant.

It is never the duty of the Criminal Revision Nos. 2307 to 2317 of 2005 -4- *** public servant to commit breach of trust, perjury, falsification of the accounts, tampering of the record and misappropriation, as such, it cannot be said to have been done by such public servant while acting or purporting to have been done by him in discharge of his official duties. Consequently, no such sanction was required in the case. No other argument has been raised. As regards quantum of sentence, it may be observed that the criminal act done by the accused pertains to the period w.e.f. 5.7.1998 to

27.8.1998. He has already lost his job, therefore, keeping in view the longevity of the trial, the sentence is reduced to two years in each case without any alteration in the sentence of fine. However, sentence awarded in all the cases shall run concurrently. A photo copy of this judgment be placed on the files of each connected case. Copy of the judgment be sent to the learned Chief Judicial Magistrate, Sonepat for compliance. November 15, 2010 deepak (A.N. Jindal) Judge