BALWAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE instant revision petition is directed against the order dated 9.1.2014 passed by the Additional Sessions Judge, Kaithal in the light of which the judgment of conviction of the petitioner, dated 8.11.2011, under Section 409 of the Indian Penal Code as also the order of sentence, dated 11.11.2011, passed by the Judicial Magistrate Ist Class, Kaithal to undergo simple imprisonment for a period of three years and to pay a fine of Rs. 10,000/ - has been affirmed.

(2.) THE process of law was set in motion by way of complaint dated 11.7.2003 by Karnail Singh, Assistant Registrar, Co -operative Societies, Kaithal and furnished to Superintendent of Police, Kaithal raising allegations against the petitioner of embezzlement of an amount of Rs. 1,52,294.70p by withdrawing cash amounts/not showing the entries in the record/showing shortage of fertilizers etc. while functioning as Secretary of the Guliana Co -operative Society Ltd., Guliana. On the basis of such complaint, FIR was registered and on completion of investigation, the final report under Section 173 of the Code of Criminal Procedure was prepared and submitted in the Court. The petitioner was charge -sheeted under Section 409 of the Indian Penal Code on 30.10.2007 to which he pleaded not guilty and claimed trial. As many as 16 prosecution witnesses were examined and statement of the petitioner under Section 313 of the Code of Criminal Procedure was recorded on 3.3.2011 whereby the entire incriminating evidence was put to him. In defence, the petitioner relied upon the oral testimony of DW1 Ram Kumar, Auditor, Co -operative Societies, Assandh, District Karnal and DW2 Ramesh Chand, Clerk, Kaithal Co -operative Bank, Kaithal. The petitioner also placed reliance on documents Exhibits D1, D2 and D3. The trial culminated in the conviction of the petitioner under Section 409 of the Indian Penal Code vide judgment dated 8.11.2011 passed by the Judicial Magistrate Ist Class, Kaithal. The order of sentence was passed on 11.11.2011, in terms of which the petitioner was directed to undergo simple imprisonment for a period of three years and to pay a fine of Rs. 10,000/ -. An appeal preferred by the petitioner under Section 374 of the Code of Criminal Procedure against the judgment of conviction and order of sentence passed by the Judicial Magistrate Ist Class, Kaithal stands dismissed in the light of impugned order dated 9.1.2014.

(3.) LEARNED counsel appearing for the petitioner would submit that the charge of embezzlement against the petitioner had been levelled while he was working as a Secretary of the Guliana Co -operative Society Ltd., Guliana and in such capacity, he could not be construed as a public servant within the meaning of Section 21, Clause 12 of the Indian Penal Code and as such, the provisions of Section 409 of the Indian Penal Code would not be attracted. Learned counsel has further contended that the entire case of the prosecution was based upon an audit report, Exhibit PW6/A, which would be in the nature of departmental proceedings and in such departmental proceedings, the appreciation of evidence is based upon the principle of pre -ponderance of probabilities, whereas in criminal proceedings, the guilt of the accused is required to be established beyond shadow of doubt. It is argued that the prosecution has not led any evidence beyond the audit report and as such, the guilt of the petitioner has not been proved to the hilt. Yet another submission raised by the learned counsel is that the Courts below have erred in not having appreciated defence evidence and report, Exhibit DB, submitted by the senior Auditor in defence of the petitioner/accused and which would clearly prove that there was no embezzlement and the same has been completely over -looked.