MISHRI RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner suffered conviction under Section 409 of the Indian Penal Code on being tried by Sri A. K. Pandey, Judicial Magistrate, 1st Class, Bhabhua and was sentenced to suffer simple imprisonment for two years, and to pay fine of Rs. 1000/ -, in default of which, he was to further undergo simple imprisonment for one month. The aggrieved petitioner carried the matter in appeal before the Sessions Judge, Bhabhua in Criminal Appeal No. 104 of 1999 who while upholding conviction of the petitioner reduced the sentence to the period undergone by him in custody.

(2.) THE factual matrix which are not in dispute are that the work for execution of scheme No. 01/1994 -95 under Intensive Jawahar Yojna for construction of Primary School, Kudra and Scheme No. 2/94 -95 under Suniyojit Rojgar Yojna for construction of road from Pakoli tola Navanagar to Ahiwash through Bidupur Rajwaha were assigned to the petitioner for which an advance of Rs. 79,500/ - for the first scheme and an advance of Rs. 67,500/ - for the second scheme was made to the petitioner by the Department, and a deed of agreement too was executed between the parties with stipulation for execution of work by a particular time, and in case of failure, realisation of money was to be made through public demand. The facts which are not in dispute are that the petitioner executed work under the first scheme of value Rs. 49,241/ - only, while for the second scheme, the execution of work was only of value Rs. 33,092.50 only. As execution of work for both the scheme had not been accomplished during the period for which the petitioner was obliged to complete, the Department issued notice to the petitioner for refund of the residual amount for which the work was not executed by him. There being no response, it seems that a criminal case too was registered against the petitioner on 14th October, 1995, and it is not in dispute that the petitioner eventually deposited the residual amount of Rs. 64,666.50 on 22nd April, 1996 for which a no dues certificate had also been issued by the department.

(3.) THE concurrent findings recorded by both the courts below, realising confinement of this civil (sic) revision application, within which court is required to consider the matter is sought to be assailed on premises that taking the prosecution case to be true on its face value, since there was no tacit evidence about entrustment of the property and misappropriation thereof, the case of the petitioner would not fall within the mischief of Section 409 of the Indian Penal Code and reliance on this score has been placed on a decision of High Court of Orissa reported in A.I.R. 1966 Orissa 106 (V 53 C 43) Purna Chandra Behra V/s. State and also a decision of the Supreme Court reported in A.I.R. 1930 Patna 209 (Harakrishna V/s. Emperor). Contentions are raised that regard being had to the term of agreement though contractual obligation had been cast on the petitioner for execution of work within specified period, in case of failure, realisation of residual amount was to be made only through public demand, and in that view of the matter, failure to discharge contractual obligation would saddle the petitioner only with civil liability and that apart the petitioner had already deposited residual amount with the department for which no dues certificate had been issued to him.