RAMESHCHANDRA MUKUNDLAL TAMBAKHUWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner impugns the order dated 21st may, 1985 passed by the learned Chief Judicial Magistrate, Parbhani, in Regular criminal Case No. 78/1983 convicting the petitioner of the offence punishable under section 409 of the Indian Penal Code and sentencing him to suffer RI for three years and a fine of Rs. 50,000/- in default. RI for one year; and the order passed by learned Additional Sessions Judge, Hingoli at Court dated 13-2-1998, by which the appeal is partly allowed, convicting the petitioner of the offence punishable under section 408, Indian Penal Code and reducing the imprisonment to one year.

(2.) Briefly stated, the facts are that staff of Adarsha Mahavidyalaya, formed a Credit Society by name and style 'adarsha College Staff Co-operative Credit society Limited, Hingoli" (hereinafter referred to as "the Society") consisting of 34 Lecturers, 15 Clerks and 20 Peons. The members who were in need of money, used to borrow loan from this Society. Monthly instalments used to be worked out whereas, amount used to be deducted from the salary of the members. The principal of the College used to issue cheques in favour of the Secretary of the society on the College account. After the amount is withdrawn, the Secretary used to deposit the amount with District Central Co-operative Bank (hereinafter referred to as 'the DCC Bank"). On deposit of this amount, the additional amount of loan used to be disbursed by the Bank. One of the members of the staff, used to work as Secretary of the Society and performed duties of Secretary as required by the Bye-Laws. During the relevant period between 5th November, 1979 and 28th April, 1980. PW 6 Principal-Mantri, issued 13 cheques amounting to Rs. 70,000/ -. The cheques were encashed by the petitioner. Out of Rs. 70,000/-, petitioner deposited amount of Rs. 21,000/- and odd with the DCC Bank; however did not make payment of Rs. 49,633. 15. Therefore, DCC Bank did not release the amount due for the disbursement of loan. A letter was sent to the society that as the earlier outstanding instalments are not deposited, further payments cannot be made. After receipt of this intimation from DCC Bank, enquiries were conducted. It was found that petitioner has committed defalcation. A meeting of the Managing body of the society was called and it was decided that action should be taken against the petitioner. In pursuance of this resolution, intimation was given to the concerned authority. PW 8 - Manohar Haridas, who is a Co-operative Officer, conducted enquiries on the directions of his superiors, in respect of the transactions of the society on 10th May, 1980 and 11th May, 1980, that too in the presence of petitioner. The Co-operative Officer found that defalcation is committed. He, therefore, filed a complaint (Exh. 46) with Hingoli town Police Station. After completion of investigation, charge-sheet came to be filed against the petitioner. At the conclusion of trial, learned trial Judge found that petitioner has committed defalcation, in his capacity as a "public Servant". He, therefore, convicted the petitioner by his order dated 21-5-1985 for offence punishable under section 409, Indian Penal Code, and sentenced him to pay a fine of Rs. 50,000/- in default, to suffer RI for 1 year, with a direction that if the amount of fine is deposited this amount should be paid to the Chairman of the society, of course, after expiry of appeal period.

(3.) The matter was carried in appeal. Learned Additional Sessions Judge, hingoli, partly allowed the appeal, thereby altering conviction of offence punishable under section 408, Indian Penal Code and reducing sentence of imprisonment from 3 years to 1 year of RI, by order dated 13-2-1998. This order of conviction and sentence is impugned by the petitioner, in the present Revision.