SEWA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE revision petitioner herein was charged under section 409, Indian Penal Code, for having committed criminal breach of trust in respect of 20.750 lts of diesel, tried by Judicial Magistrate 1st Class, Dasuya convicted accordingly and sentenced to rigorous imprisonment for nine months, to pay a fine of Rs. 1,000/- and in default, to further undergo rigorous imprisonment for a period of three months. As against this, the revision petitioner filed Cr. Appeal No. 63/1986 and the learned Addl. Sessions Judge, Hoshiarpur, who heard the appeal, concurred with the finding given by the trial court, upheld the conviction under section 409, IPC but altered the sentence of imprisonment as one till the rising of the court and directed him to pay a fine of Rs. 1,500/- and further directed that in default, he will further undergo rigorous imprisonment for three months. It is against these concurrent findings of the two courts that the revision petitioner has come forward with this revision.

(2.) THE prosecution case is that the revision petitioner is a driver of the Punjab Roadways and on 6.3.1985 he was the driver of Bus No. PUH 5275. It is alleged that he left with this bus on duty at 4.30 P.M. from Hoshiarpur to village Koi and after returning from village Koi he halted for the night at Garhdiwala. A police party headed by Raghbir Singh (P.W. 1) went on patrol duty, and found this bus parked in the area of Garhdiwala. On hearing some noise, the police party checked and found the accused lying under the bus and taking out diesel from the diesel tank. A container and a bucket 20.578 lts. of diesel was found and the same was seized.

(3.) THE learned counsel for the petitioner has not been able to show that the concurrent findings of the courts below are per verse and not acceptable. One point urged by the learned counsel for the petitioner is that ingredients of section 409, Indian Penal Code, have not been made out and that there is no evidence that the petitioner had dishonestly converted the property for his own use. Such a contention cannot be accepted because this is a case where the petitioner was entrusted with the bus and certain quantity of diesel. He was found lying under the bus and taking out diesel from the diesel tank. A portion of the diesel from the diesel tank was found in a container nearby. There was no reason for the petitioner to remove the diesel and that too a portion of diesel from the diesel tank. It is not as if there was any repair in the diesel tank and, therefore, he had removed it for putting the tank in order. If that were the case, the entire diesel should have been removed. But that was not his intention. A man who is not expected to remove diesel from the tank was found to be removing the same. Therefore, when he had removed the diesel from the diesel tank, it is clear that his intention is only to misappropriate the same. In cases of misappropriation, the intention to misappropriate plays a very important role and in the circumstances of this case, his intention could be nothing else but to misappropriate the diesel which was removed from the tank. Therefore, the contention of the learned counsel for the petitioner if at all, the petitioner, at the worst, can be stated to have made a preparation for committing some offence, and cannot be stated to have committed an offence is wholly unacceptable in the circumstances pointed out by me above. Once he removes the diesel from the tank which was not his duty, it is to be held that he had committed misappropriation, especially when there is no explanation whatsoever why he removed it. In these circumstances, I find that the conviction of the petitioner under section 409, IPC, is neither erroneous nor per verse, calling for interference in exercise of the powers of revision under section 409, IPC. The learned Addl. Sessions Judge has even modified the sentence into one of imprisonment till the rising of the court and fine, which cannot be stated to be excessive. He has also given valid reasons for not applying the provisions of the Probation of Offenders Act to the case of the petitioner. Therefore, the revision has to fail and is accordingly dismissed. Petition allowed.