NARENDER KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner has filed the present revision petition against the judgment dated 12.4.1991 and order of sentence dated 15.4.1991 passed by the Judicial Magistrate 1st Class, Ambala (hereinafter described as 'the trial Court') and judgment dated 21.9.1992 rendered by the Additional Sessions Judge, Ambala (hereinafter referred to as 'the lower Appellate Court'). By the impugned judgment and order of sentence, the trial Court has convicted the petitioner under Section 409 of the Indian Penal Code (for short, 'the I.P.C.') and sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 2000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months, whereas the lower appellate Court, vide its judgment under challenge, converted the conviction of the appellant from Section 409 to Section 408 of the I.P.C., but maintained the sentence as awarded by the trial Court.

(2.) BRIEFLY stated the facts of the case leading to the prosecution of the petitioner are that he was employed as Salesman with the Haryana State Federation of Consumer's Cooperative Wholesale Stores Limited (hereinafter described as 'the Confed') and was posted at Kalka shop in the year 1984. He absented himself from duty for about a week. The shop which was entrusted to him for operation was not open to the public. On 2.5.1984, a raid was conducted by the officers of the Confed and the police. An inventory was prepared at the spot. After assessing the value of the articles which were found in the shop, the petitioner was found to have committed an embezzlement of Rs. 56649.57. The inventory of the articles found in the shop was compared with the stock as it was available with petitioner on 31.3.1984. The said inventory was prepared by Shri S.C. Jain, Assistant Accounts Officer of the Confed.

(3.) THE prosecution led its evidence to bring home the guilt of the petitioner. In his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'), the petitioner took up a plea that the physical verification of the articles was done in his absence by detaining him in the police station and despite the fact that there was no shortage of stock, he was falsely implicated at the instance of the officers of the Confed, who were inimical towards him. In his defence, the petitioner also produced arbitration case file which is on record as Exhibit D2. The trial Court held the petitioner guilty and sentenced him in the manner as noticed hereinabove, whereas the lower appellate Court modified the conviction as aforestated. Learned counsel for the petitioner contended that the case of the petitioner had been seriously prejudiced as no independent witness was enjoined at the time of conducting raid which is in complete violation of the provisions of Section 100(4) of the Cr.P.C. That apart, no witness was examined to prove the inventory of the goods prepared at the time of raid.