UDAI BIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This revision is directed against a judgment and order of Sri Dharam Paul, the then Second Additional Sessions Judge, Kanpur Nagar dated 12.02.1990 in Criminal Appeal No. 13/1989 dismissing the appeal and affirming a judgment and order dated 30.01.1989 passed by Sri Liyakat Ali, the then Metropolitan Magistrate, Kakadev, Kanpur Nagar in Criminal Case No. 2289 of 1987 (earlier numbered as 1538 of 1980), State vs. Udaivir Singh, convicting the revisionist Udaivir Singh of an offence punishable under Section 408 IPC and sentencing him to suffer rigorous imprisonment of one year and imposing a fine of Rs. 1,000/- with a direction that in the event of default in payment of fine imposed, an additional six months of simple imprisonment would have to be suffered.

(2.) The facts giving rise to this revision are that the revisionist was a Secretary with Sadhan Sahkari Samiti Ltd., Sen Paschim Para, where the President (Pradhan) of the society was one Jagmohan Singh. Jagmohan Singh lodged a first information report in his capacity as the President of the Society on 21.03.1980 at 10:00 a.m. with police station Sachendi, District Kanpur giving rise to case crime no. 89 of 1980 under Section 409 IPC, P.S. Sachendi, District Kanpur Nagar alleging that twenty thousands bricks were purchased by the Sadhan Sahkari Samiti Ltd., Sen Paschim Para (hereinafter referred as "the Society") for the purposes of construction of a building for the society. The bricks purchased were not found to be of requisite standard and quality, and, therefore, these were sold to one Uma Shanker for a sum of Rs. 3100/- on 04.01979. It is said that proceeds of the sale in the sum of Rs. 3100/- that was received by the revisionist as Secretary of the Society was not shown in the account book of the society nor was the same deposited in the bank account of the Society. The revisionist instead misappropriated the said sum of money and utilized it for his personal use causing wrongful loss to the society and wrongful gain to himself.

(3.) The FIR aforesaid after registration by the police as a crime was investigated and a charge sheet was submitted against the revisionist on 10.06.1980 charging him of an offence punishable under Section 409 IPC. The Magistrate took cognizance of the case on the basis of the said charge sheet wherein five witnesses were cited in support of the prosecution case - three of fact and two formal. It appears that charge was framed under Section 408 IPC after hearing the revisionist at the time of framing of charge vide order dated 04.10.1982. The revisionist denied the charge and claimed trial.