BALDEVBHAI PREMJIBHAI CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The concurrent judgments of conviction and sentence for the offence punishable under Section 409 of the Indian Penal Code are brought under challenge by the petitioner accused in this revision application under Section 401 read with Section 397 of the Code of Criminal Procedure.

(2.) The facts indicated by the evidence on record on the basis of which the accused is convicted are, in brief, as follows: The petitioner, a bailiff in the Court of the learned Civil Judge, Dhandhuka, marked his presence on duty at 10.20 in the morning on 24.6.1988, which was a Friday. He was, admittedly, on local beat, meaning that he was assigned the duty of serving the processes in the local area. There were five other bailiffs, out of whom two were normally assigned the duties of visiting the bank and the treasury for depositing or withdrawing money and the necessary identity cards were also issued to them. However, on 24.6.1988, three challans, which were prepared on 23.6.1988 and in which the name of the accused was mentioned as the person who would tender the money, were entrusted to the accused along with the amount of Rs.535.00 for being deposited in the bank. Neither the money was paid in the bank nor the accused returned the challans till 28.6.1988. Therefore, a complaint was filed and an F.I.R. was lodged in the Dhandhuka Police Station in the evening of 28.6.1988. On the next day, i.e. 29.6.1988, the accused visited the police station and voluntarily produced the challans and the money and he was immediately arrested. The defence of the accused was that he had received a message that his sister was suddenly taken ill and therefore he submitted a casual leave report for 24.6.1988 as also an application to leave the headquarter on 25.6.1988 and 26.6.1988 and a casual leave report for 27.6.1988 and 28.6.1988 and thereafter left for Viramgam from Dhandhuka. On 29.6.1988, the clerk of the court, who had lodged the F.I.R., told him that he was required in the police station where he went. In view of the inconsistent stand taken by the accused in his defence and in his statement recorded under Section 313 of the Cr.P.C., the evidence of the prosecution was believed almost in its entirety. And the Appellate Court further emphasised the fact that even when the accused reported for duty on 29.6.1988 and was told that he was required in the police station, he went to the police station at around 6.30 in the evening and hence the plea of the accused of, at the worst, mere retention of money on account of sickness of his sister and absence was not accepted. The Appellate Court further did not believe that Shri B.B.Patel, who played the most important role in prosecuting the accused, had kept with himself the leave reports given by the accused.

(3.) This petition against the concurrent judgments is argued mainly on the grounds that both the lower Courts have not taken into consideration the real circumstances of the case and that misappropriation was never established so as to bring home the charge of criminal breach of trust. Before embarking upon a critical scrutiny of the evidence on record, the learned counsel for the petitioner has referred to the provisions of Sections 397 and 401 of the Cr.P.C. and submitted that this is a gross case in which perverse findings are recorded in violation of the basic tenets of criminal jurisprudence which has resulted into miscarriage of justice and untold misery to the accused.