SITA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused petitioner Sita Ram was convicted by the learned Judicial Magistrate No. 2, Baran District Kota, under his judgment dated July 28, 1980. under Sec. 409 and 467 Penal Code and under each count he was sentenced to one year's rigorous imprisonment and a fine of Rs. 200.00, or in default of payment of fine to further suffer one month's rigorous imprisonment. The substantive sentences were ordered to run concurrently. The petitioner preferred an appeal which was disposed of by the learned Addl. Sessions Judge No. 1 Baran under his judgment dated Aug. 29, 1981 and the appeal was dismissed both in respect of conviction and sentence.

(2.) During the period from May 1969 to July 1969 the petitioner was a surveyor in the Panchayat Samiti Shahbad District Kota. Randhir Singh PW 36 was at the relevant time Block Development Officer and Agriculture Extension Officer of the Panchayat Samiti Shahbad. A sum of Rs. 15,000.00 had been sanctioned for the repairs of Khanda Sdrela pond under the Panchayat Samiti Shahbad. Kashi Ram contractor had been given the contract for the aforesaid pond, he started the work on Jan. 6, 1969 and worked till Feb. 1, 1969. A sum of Rs. 3373/- was paid to the contractor. In addition to this the work was taken from the contractor and one mate was appointed and a sum of Rs. 759.44 p. was spent on that account and thus a total sum of Rs. 4,132.44 was spent. There were instructions that no amount should be paid after March, 1969, but as per the case of the prosecution in disregard of the aforesaid directions, the Block Development Officer of the Panchayat Samiti Shahbad again started the work in May 1969 and the work Was got done through the accused petitioner who was the surveyor with the Panchayat Samiti Shahbad. The work was started on May 6, 1969 and was concluded on July 16, 1969. The accused petitioner is said to have submitted account of Rs. 1,235.00 as the amount spent on the aforesaid works. He was given a sum of Rs. 14,800.00 from May 1969 to July 1969 for being paid to labourers, but as per the case of the prosecution the amount was not paid to the labourers and fictitious muster-rolls were prepared by the accused petitioner and the accused-petitioner misappropriated the amount. An enquiry was conducted and it was found that the accused-petitioner has not in fact paid the amount of Rs. 7,917-73 p to the Labourers and the payment of the same was wrongly shown to have been made to the labourers in the muster-rolls. The District Magistrate sent a report and a case was registered and after investigation the charge-sheet was filed against the accused-petitioner. The charge-sheet was framed under Sec. 409 and 467 Penal Code against the accused petitioner & on behalf of the prosecution as many as 36 witnesses were examined. Thereafter, the accused-petitioner was examined under Sec. 313 Cr. P. C. and he denied the prosecution allegations levelled against him and took up a stand that labourers were paid the full wages and the entries in the muster rolls are not forged and they are correct. He also took a plea that the B. D. O. used to counter-sign the muster-rolls which goes to show that they are correct and according to the petitioner, Pradhan of the Panchayat Samiti was inimical towords him and he wanted him to do illegal works. He examined as many as five witnesses in defence. The learned Magistrate after hearing arguments, under his judgment dated July 28, 1980 convicted and sentenced the accused petitioner as mentioned above and his appeal preferred before the learned addl. Sessions Judge was also dismissed.

(3.) I have heard learned councel for the petitioner and learned Public Prosecutor and have gone through the record of the case. It was contended by the learned counsel for the petitioner that the charge-sheet against the accused petitioner was filed on Feb. 12, 1974 i.e. before coming into force of the Code of Criminal Procedure, 1973 (for short, New Code) which came into force on April 1, 1974. An offence under Sec. 409 Penal Code was triable by the learned Sessions judge and as such it should have been committed to the court of session, but the learned Magistrate tried it himself and therefore, the trial is without jurisdiction and is vitiated. It is also contended by the learned counsel for the petitioner that even on the evidence on record the case against the accused petitioner cannot be said to have been made out and the finding of the courts below is perverse. Learned Public Prosecution has supported the judgments or the courts below.