Madhukar Shende Vs State of Chhattisgarh

¶1

1

¶2

2025:CGHC:50756

¶3

Digitally signed SAGRIKA by SAGRIKAAGRAWAL AGRAWAL Date: 2025.10.13 18:25:40 +0530

¶4

NAFR

¶5

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶6

CRR No. 834 of 2025

¶7

1 - Madhukar Shende S/o Late Domaji Shende Aged About 73 Years R/o Khairagarh Road, Dongargarh, Near Indian Gas Godown, District - Rajnandgaon (C.G.)

¶8

... Applicant(s)

¶9

versus

¶10

1 - State Of Chhattisgarh Through - District Magistrate Durg, District - Durg (C.G.)

¶11

... Respondent(s)

¶12

For Applicant (s) : Mr. Ravipal Maheshwari, Advocate For Respondent(s) : Mr. Akhilesh Kumar, Govt. Advocate

¶13

Hon’ble Shri Justice Ravindra Kumar Agrawal, J

¶14

Order on Board

¶15

10.10.2025

¶16

1. The applicant has filed the present Criminal Revision under Section 438 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short “BNSS”), against the judgment dated 26-06-2025 passed by the learned Sessions Judge, Durg, in Criminal Appeal No. 325 of 2024, whereby the Criminal Appeal filed by the applicant is dismissed. The applicant is convicted by the learned Judicial Magistrate First Class, Durg, vide its judgment of conviction and sentence dated 26-09-2024, passed in Criminal Case No. 638/2017, whereby the applicant has been convicted and sentenced in the following manner:-

¶17

2

¶18

S. No.	Conviction	Sentence
1	U/s 420 of the Indian Code.	Penal R.I. for 01 years & fine of Rs. 500/- in default of fine, further R.I. for 01 month
2	U/s 409 of the Indian Code.	Penal R.I. for 01 years & fine of Rs. 500/- in default of fine, further R.I. for 01 month
3	U/s 467 of the Indian Code.	Penal R.I. for 01 years & fine of Rs. 500/- in default of fine, further R.I. for 01 month
4	U/s 468 of the Indian Code.	Penal R.I. for 05 month & fine of Rs. 500/- in default of fine, further R.I. for 01 month

¶19

2. The brief facts of the case are that the applicant is an accused in Criminal Case No. 638/2017 for the offence under Section 409, 420, 468 and 471 of the IPC. An FIR was registered against the applicant with the allegation that he was posted as a liquidator with the Priyadarshani Grih Nirman Samiti, Kurud, Bhilai. During his tenure, certain lands of the Samiti bearing Kh. No. 538/46,539/1, 536/2, 536/7, 536/9 552 and 553, total area 14.17 Acres, were mortgaged in the year 1990 with the then Madhya Pradesh Cooperative Housing Federation, Raipur. The applicant, in the year 2009, sole the plot No. 67, 68, 69, 70, 72, 73, 74, 82 and 83 on his own will without redemption of mortgage and has not deposited the sale consideration of 03 plots with the Samiti and misappropriated the same. On 05-05-2016, a written complaint was filed against the applicant. After preliminary inquiry, the FIR Ex. P-18 was registered for the offence under Sections 408, 409, 420, 467 and 468 of the IPC. Statements of the witnesses have been recorded, documents have been seized, applicant was arrested and after completion of the investigation, charge sheet was filed against the applicant before the learned Judicial Magistrate First Class, Durg, for the offences under Sections 408, 409, 420, 467 and 468 of the IPC.

¶20

3

¶21

3. The learned trial Court framed charges under Sections 409, 420, 467 and 468 of the IPC. the applicant denied the charges and claimed trial.

¶22

4. In order to prove the charges against the applicant, the prosecution examined as many as 04 witnesses. Statement of the applicant under Section 313 of the Cr.P.C. has also been recorded in which he denied the circumstances that appears against him, pleaded innocence and submitted that he is innocent and has been falsely implicated in the case. he would further submit that during his tenure, departmental inquiry was also initiated, but he could not be hold guilty by the department and he superannuated after completion of his entire tenure.

¶23

5. After appreciation of oral as well as documentary evidence lead by the prosecution, the learned trial Court convicted the applicant and sentenced him as mentioned in the earlier part of this judgment. The applicant challenged his conviction and sentence in Criminal Appeal No. 325 of 2024 before the learned Sessions Judge, Durg, which has been dismissed by the judgment dated 26-06-2025. Hence, this criminal revision.

¶24

6. Learned counsel for the applicant would submit that the applicant is not challenging his conviction for the offence of Section 420, 409, 467 and 468 of the IPC, however, he is challenging the sentence awarded to him for the alleged offence. He would further submit that the offence is alleged to have been committed of the year 2009 whereas the FIR was lodged in the year 2016. The applicant has already faced the agony of a criminal case for more than 9 years. The offence was registered after his retirement, and presently he is aged about 80 years and has various age-related ailments. The alleged offences do not provide any minimum sentence. The applicant remained in jail for about 02 months during the trial of the case, and presently he has been in jail since 26-06-2025, i.e. from the date of the appellate judgment. Thus, he has already served about 06 months of his sentence. The total period of the sentence awarded to him is 01 year. Therefore, considering the

¶25

4

¶26

totality of the facts, his sentence may be reduced for the period already undergone by him.

¶27

7. Per contra, learned counsel for the State vehemently opposes the submissions of the applicant and submits that although the applicant is presently aged about 80 years, he cannot escape from his liability to serve the sentence because he is a convicted accused and the nature of the offence disentitles him to any leniency. He, being the liquidator and custodian of the property, misused his position and misappropriated the funds. After an appreciation of all the facts and circumstances of the case and the age and physical condition of the applicant, the learned trial Court has rightly sentenced him, which is quite lenient, and the applicant is not entitled to any further leniency.

¶28

8. I have heard learned counsel for the parties and perused the record of the trial Court and evidence available on record, and examined the legality and propriety of the impugned judgments.

¶29

9. Although the applicant is not challenging his conviction however this court deems it appropriate to examine the evidence on record and judgments of the learned Courts below. P.W. 1, Rajendra Kumar Verma, complainant, has stated in his evidence that the applicant was the liquidator in the Samiti up to 2009-10. Thereafter, he has been made as a liquidation vide order dated 1008-2010 issued by the District Registrar. After verification of the records, he came to know about the sale of the plots by the applicant without permission from the higher authorities. He sold a total of 09 plots, but has deposited the sale consideration of only 06 plots, and the sale consideration of 03 plots has not been deposited with the Samiti. Considering the misappropriation of funds, he lodged the written report Ex. P-1 with the police. He would further submit that when the matter was informed to the Joint Registrar, Cooperative Societies, Raipur, a notice was given to the applicant, but he neither replied to the said notice nor deposited the amount with the Samiti. The police have

¶30

5

¶31

seized the sale deeds of the plots that the applicant has sold to different persons. The State of Chhattisgarh is separated from the State of Madhya Pradesh in the year 2000, but the applicant signed the sale deed in the year 2009-10 as the Regional Officer of Madhya Pradesh Cooperative Housing Federation, Raipur. All the sale deeds have been executed by the applicant, and his signature and seal are there in the sale deeds. Nothing substantial could be extracted from the evidence of this witness so that his evidence can be disbelieved. It is not the case of the applicant that he has not sold the subject plots to different persons or that he has deposited the entire amount of consideration with the Samiti. No satisfactory proof has been adduced by the applicant to rebut the allegation and evidence of the P.W. 1.

¶32

10. P.W. 2, Vijyendra Upadhyay, was the Regional Officer at Chhattisgarh Cooperative Housing Federation, Raipur, at the relevant point in time. He too has stated that while posted as liquidator, the applicant had sold 09 plots of the Samiti to different persons through registered sale deeds, without permission from the higher authorities. The said plots were mortgaged with the Housing Federation. On inquiry, it was found that the applicant has not deposited the amount of sale consideration of the 03 plots and misappropriated the same.

¶33

11. P.W. 3, Chaitanya Dev Vaishnav, A.G.-I, posted at Chhattisgarh Cooperative Housing Federation, Raipur, stated in his evidence that the relevant documents of the mortgaged deed, sale deeds, and documents of the departmental inquiry against the applicant have been seized by the police vide seizure memo Ex. P-3. He is the witness of the seizure memo and proved the same.

¶34

12. P.W. 4, R. D. Mishra, the investigating officer, has also proved the registration of the FIR and the entire investigation in the case. he too has remained firm in saying that during the investigation, he found sufficient evidence against the applicant for commission of the offence, and he filed the charge sheet

¶35

6

¶36

against him. No infirmity or irregularity could be pointed out by the defence so that his evidence can be disbelieved or the benefit of any laches in the investigation can be extended to the applicant.

¶37

13. Considering the entire evidence available on record, the learned trial Court, after meticulous examination of the evidence and documents, passed the judgment of conviction and sentenced the applicant. In the appeal filed by the applicant before the learned Sessions Judge, Durg, they have also given thoughtful consideration to the evidence available on record and the judgment of conviction and sentence passed by the learned trial Court and dismissed the appeal. Having gone through the evidence available on record and judgment of the trial court as well as the appellate Court, this Court is of the opinion that the learned Courts below have not committed any irregularity or illegality in convicting the applicant and therefore, his conviction is hereby affirmed.

¶38

14. So far as the sentence awarded to the applicant is concerned, the submission of the applicant that he is presently aged about 80 years and suffering age-related ailments, the offences of Sections 420, 409, 467 and 468 of the IPC do not provide any minimum sentence, the total period of sentence is 01 year and the applicant has already served about 06 months of his sentence, therefore, his sentence may be reduced for the period already undergone by him, is appealing.

¶39

15. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh

¶40

reported in (1977) 3 SCC 287 Hon'ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows:

¶41

"9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly. critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested:

¶42

7

¶43

'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences."

¶44

16. Considering the facts and circumstances of the case, evidence available on record, age and his physical condition of the applicant, the total period of sentence awarded to him and his undergone period, this Court deem it appropriate to reduce the sentence awarded to him.

¶45

17. Consequently, the conviction of the applicant for the offences under Section 420, 409, 467 and 468 of the IPC is hereby affirmed. The sentence awarded to the applicant for the alleged offences is reduced for the period already undergone by him instead of R.I. for one year for the alleged offences. The fine sentence and default stipulations shall remain intact. With the aforesaid alteration of his sentence, the present criminal revision is partly allowed .

¶46

18. The applicant is reported to be in jail. He shall be released forthwith if not required in any other case, subject to complying with the fine sentence and default stipulation.

¶47

8

¶48

19. The trial Court and appellate Court records shall be sent back to the Court

¶49

concerned along with a copy of this judgment.

¶50

Sd/-

¶51

(Ravindra Kumar Agrawal)

¶52

Judge