This High Court fixed Cr. Revision under Section 409 IPC. It upheld the conviction but modified the sentence due to the petitioner's advanced age. The sentence was limited to the period already undergone, and a fine was imposed.
Sentence modified to limit imprisonment to period already undergone; fine of Rs. 25,000 imposed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 320 of 2012
Banaras Sah @ Banaras Saha, son of Late Laxmi Sah, resident of Village-Rangraulli, P.O. P.S. Darounda, District-Siwan (Bihar), at present residing at Lower Bazar, P.O. and P.S. Lower Bazar, District-Ranchi. … … Petitioner
Versus
The State of Jharkhand … … Opp. Party ---
CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
Through: Video Conferencing
07 /24.09.2021
1. Heard Mr. Nilesh Kumar, learned counsel appearing on behalf of the petitioner.
2. Heard Mr. Bishwambhar Shastri, learned counsel appearing on behalf of the opposite party-State.
3. The present revision application has been filed challenging the legality, propriety and correctness of the judgment dated 3rd March, 2012 passed by the learned District & Sessions Judge-XIII, Ranchi in Cr. Appeal No. 27/2003, whereby the learned appellate court has affirmed the judgment of conviction and order of sentence dated 22nd February, 2003 passed by the learned Judicial Magistrate, 1st Class, Ranchi in G.R. Case No. 3389/1985, T.R. No. 02/2003.
4. The learned trial court has convicted the petitioner for offence under Section 409 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of 3 years with fine of Rs. 5,000/- and in default of payment of fine, he has been directed to undergo further imprisonment for a period of 9 months.
Submission of the petitioner
5. Learned counsel for the petitioner, at the outset, has submitted that he would confine his arguments on the point of sentence. The learned counsel submits that the petitioner has no criminal antecedent and the present age of the petitioner is
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about 72 years. The petitioner has duly retired from the services of post office in the year 2010. The learned counsel further submits that the present case is of the year 1985 and the petitioner was convicted in the year 2003. The appeal also remained pending for a long time for no fault on his part and this revision which was filed in the year 2012 has ultimately come up for final hearing in the year 2021. He submits that the petitioner has faced the rigors of criminal case for long 36 years and he is at the fag end of his life at the age of about 72 years. He submits that the petitioner has also remained in custody for a considerable time at the stage of trial and also during the pendency of this revision petition, then he surrendered on 09.05.2012 and was directed to be enlarged on bail on 15.06.2012 and a few days must have been taken by him to furnish the bail bond. He submits that custody of the petitioner is more than four months in connection with the present case.
6. The learned counsel has further submitted that a supplementary-affidavit has been filed in the present case bringing on record the order passed in the departmental proceeding, whereby the petitioner was punished vide order contained in Memo No. F-3-1/ 85-86 dated 21.07.2008 and penal recovery was made. He submits that the facts of the present case would reveal that the case is of temporary embezzlement, in as much as, certain deposits in the account were not reflecting in the records of the post office. He submits that considering the totality of the facts and circumstances of the case and the present age of the petitioner, some sympathetic view may be taken and sentence be modified and certain fine amount be enhanced.
Submissions of the opposite party-State
7. Learned counsel appearing on behalf of the opposite party-State, on the other hand, has submitted that both the learned courts below have given concurrent findings with
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regard to offence committed by the petitioner and there is no scope for interference in revisional jurisdiction, so far as conviction of the petitioner is concerned. He submits that there is no illegality, perversity or material irregularity in the impugned judgments of conviction. He further submits that the petitioner has been dealing with money of the post office.
8. The learned counsel, while advancing his argument on the point of sentence, does not dispute that the petitioner is about 72 years of age and the case was instituted as back as in the year 1985 and that the petitioner does not have any criminal antecedent. He submits that in case, this Court is inclined to modify the sentence of the petitioner, some fine amount may be enhanced, even if, the penal recovery has been made by the department. He submits that mere penal recovery by the department is not sufficient. The learned counsel has also submitted that even the learned counsel for the petitioner has submitted that he has no objection if the fine amount is enhanced to some extent. He has also submitted that the fine amount which may be imposed be not less than total of Rs. 25,000/- and he has no objection if the fine amount is remitted to the account of Post Master, G.P.O., Ranchi.
Findings of this Court
9. After hearing the learned counsel for the parties, this Court finds that the learned courts below after considering the evidences on record held that the petitioner had misappropriated the money which was entrusted to the account holder and had defalcated the whole amount for his benefit while the petitioner was posted as Sub-post Master in Kanta Toli, Post Office and was entrusted with the deposit of the money by the depositors in S.B. account and money orders as post-master and the petitioner had misappropriated the government money, which was mentioned in the First Information Report.
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10. This Court also finds that at the appellate stage, it was also submitted by the defence counsel that the petitioner had already deposited the defalcated amount and he had filed three receipts; first Rs. 19,500/- dated 14.05.2003, second Rs. 36,000/dated 28.07.2004 and that he had deposited total amount of Rs. 40,059/-. The learned counsel for the petitioner has further brought on record by way of supplementary-affidavit the punishment of penal recovery imposed upon the petitioner vide Memo No. F3-1 /85-86 dated 21.07.2008.
11. This Court finds that the learned courts below have given concurrent finding of facts based on materials on record and no illegality or perversity in the impugned judgments have been pointed out by the learned counsel for the petitioner as he himself has confined his arguments on the point of sentence. However, this Court has gone through the impugned judgments passed by the learned courts below and finds that the impugned judgments are well-reasoned judgments passed after considering the evidences on record as well as the arguments of the parties and they do not call for any interference in revisional jurisdiction. Accordingly, the judgment of conviction passed by the learned courts below is hereby upheld.
12. So far as sentence is concerned, this Court finds that it is not in dispute that the case is of the year 1985 and the petitioner is about 72 years of age at present and has remained in custody in connection with the present case for more than four months and has no criminal antecedent. In such circumstances, ends of justice would be met, if the sentence of the petitioner is modified to some extent particularly considering the age of the petitioner and the period of about 36 years for which he has faced the criminal case. This court is of the considered view that no useful purpose will be served by sending the petitioner at this stage of his life into judicial custody. Accordingly, the
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sentence of the petitioner is hereby modified and limited to the period already undergone by the petitioner in custody with a total fine amount of Rs. 25,000/- to be deposited by the petitioner before the learned court below within a period of three months from the date of receipt of a copy of this order by the learned court below. The fine amount, so deposited, by the petitioner is directed to be remitted in the name of Post Master, G.P.O., Ranchi upon due identification. It is further made clear that the petitioner would not be entitled to refund of any amount which has been deposited by the petitioner in connection with the present case before the informant-party or before the learned court below.
13. Upon deposit of the fine amount as aforesaid, the petitioner as well as their bailors will stand discharged from their liabilities under their respective bail bonds. In case, the fine amount is not deposited within the stipulated time frame, bail bonds furnished by the petitioner will be immediately cancelled by the learned court below and the petitioner would serve the sentence as imposed by the learned court below.
14. Accordingly, the present criminal revision application is disposed of with the aforesaid modification of sentence.
15. Pending interlocutory, if any, stands vacated.
16. Let the lower court records be immediately sent back to the courts concerned.
17. Let a copy of this order be communicated to the learned court below through ‘E-mail/FAX”.
(Anubha Rawat Choudhary, J.)
Mukul
2 issues framed by the court
Whether the conviction required interference in criminal revision jurisdiction.
Whether the sentence required modification considering the petitioner's age and custody period.
1 provisions across 1 enactments
Banaras Sah
The State of Jharkhand
Anubha Rawat Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
