LOTAN DAU PAVRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ORIGINAL accused No. 2 Lotan, being dissatisfied with the order passed by the learned Judicial magistrate F. C. Dhadgaon, district Dhule, convicting the petitioner for the offence under Section 408 of the Indian penal Code, which is later on confirmed by the learned additional Sessions Judge, Nandurbar in Criminal Appeal No. 11 of 1994, has filed the present revision petition.

(2.) THE facts in nut shell are that; at village Som Burdruk, Tq. Akrani, there is Adivasi Seva Sahakari society (in short, "the said society"), having four sections; Ekadhikar kharedi Section, Khavti Section, Grocery Section and Head Office. It is alleged that one Atmaram pavra was in charge of Ekadhikar Section and petitioner was head of Khavti Section. The job assigned to Khavti Section was to recover the loan amount and deposit the same in the bank. It is further alleged that one shamrao, Additional Auditor at Shahada, during 1984-86 audited the accounts of the said society for the period from 1. 1. 1985 to 30. 9. 1985 in the month of May 1986. It is further alleged that the audit report revealed that the accused No. l Atmaram, who was head of the Ekadhikar Kharedi Section was entrusted with the amount and he accordingly misappropriated the same to the extent of Rs. 18,971. 48 Ps. and thereby committed offence under Section 408 of the Penal Code so far as regards the petitioner is concerned, it is alleged that he used to recover the loan amount as being head of the Khavti Section and used to deposit the same in the Bank and in that way he was entrusted with the said amount, having dominion over the said property. However, out of the recovered amount he failed to deposit an amount of Rs. 2728. 05 Ps. and thereby committed offence under Section 408 of the Penal Code. It is further alleged that the Additional Auditor submitted his report to the Special Auditor. Even he has given notice to the petitioner and atmaram, asking them to deposit the amount, which was 'alleged to be cash at hands. So far as regards the petitioner is concerned, in pursuance of the notice issued by the Auditor, he assured in writing to deposit the said amount and inspite of this, he failed to do so. As per the directions of the Special Auditor, the Auditor made report to Police and accordingly, crime came to be registered. The police after investigating the above crime No. 13 of 1987, has filed charge sheet before the learned Judicial Magistrate F. C. Dhadgaon on 4. 9. 1987.

(3.) THE learned Judicial Magistrate framed charge against Atmaram and petitioner on 18. 7. 1989. However, the charge thereafter came to be altered and under separate head the charge was framed against Atmaram for the offence of misappropriation of amount of Rs. 18,971. 48 Ps. and so far as regards the petitioner is concerned the charge is framed for misappropriation of the amount of Rs. 2728. 05 Ps. The learned Judicial Magistrate after considering the material on record, adduced by the prosecution, concluded that both the accused were having dominion over the property and they misappropriated the amounts and accordingly convicted the accused for the offence under section 408 of the Penal Code. So far as petitioner is concerned, the learned judicial Magistrate directed the petitioner to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/- in default, to suffer rigorous imprisonment for three months.