Ezhil Muthu Venkatesan v. The Sub Inspector of Police

ORDER The revision has been filed to set aside the Judgment in C.A.No.27 of 2016 on the file of the learned Principal Sessions Judge, Trichy, dated 02.11.2016, confirming the order of conviction and sentence passed in C.C.No.238 of 2009 on the file of the learned Judicial Magistrate, Manapparai, dated 14.05.2016.

2.The case of the prosecution is that the petitioner while he was working as a Postmaster in the Branch office of Marunkapuri Post Office had misappropriated money being deposited by the customers in their savings account and recurring deposit accounts. On receipt of the complaint, the defacto complainant conducted an inspection and found that there were some fraudulent transactions made by the petitioner by receiving the amount and making acknowledgement by issuing counterfoils, but without crediting the same in the main account with the post office. He had utilized the said amount for his own purpose. The defacto complainant verified the accounts of one Jeyalakshmi (Recurring Deposit Account No.7080777), M.G.Packiyathilagam (Recurring Deposit Account No.7080630), P.Palaniammal (Recurring Deposit Account No.7080333), K.Suganthi (Recurring Deposit Account No.7081367) and A.Rasathy (Savings Bank Account No.348116). On verification of those documents, it was found that the petitioner had misappropriated to the tune of Rs.23,062/-. It was happened during the year 1999 – 2002. On the complaint, the respondent registered the F.I.R in Crime No.177 of 2003 for the offence under Section 409 of I.P.C. After completion of the investigation, the respondent filed a final report and the same has been taken cognizance by the trial Court in C.C.No.238 of 2009.

3.On the side of the prosecution, they had examined P.W.1 to P.W.5 and marked Exs.P.1 to P.42 and on the side of the accused, no one was examined and no documents were marked.

4.On perusal of the oral and documentary evidence, the trial Court found the petitioner guilty for the offence under Section 409 of I.P.C and sentenced him to undergo three years Rigorous Imprisonment and also imposed a fine of Rs.3,000/- in default, to undergo six months Rigorous Imprisonment. Aggrieved by the same, the petitioner preferred an appeal in C.A.No.27 of 2016 on the file of the learned Principal Sessions Judge, Trichy and the Appellate Court dismissed the appeal, thereby confirming the conviction imposed by the trial Court. Aggrieved by the same, the present Revision.

5.The learned counsel appearing for the petitioner would submit that even according to the case of the prosecution the petitioner was a contract employee and as such, the offence under Section 409 of I.P.C would not attract as against him. If the petitioner is a Government servant, the prosecution ought to have obtained sanction as contemplated under Section 197 of Cr.P.C in order to prosecute the petitioner herein. There was also a delay in the lodgment of the complaint. However, without considering the above, both the Courts below accordingly convicted the petitioner. If at all, the petitioner is to be convicted only for the offence under Section 408A of I.P.C. If the petitioner is convicted for the offence under Section 408A of I.P.C., he is entitled to the benefit under the Probation of Offenders Act.

6.Per contra, the learned Government Advocate (Criminal Side) appearing for the respondent would submit that the prosecution beyond any doubt categorically proved its case and both the Courts below rightly convicted the petitioner for the offence punishable under Section 409 of I.P.C. That apart, the petitioner had misappropriated to the tune of Rs. 23,062/-. Therefore, it was not his part of duty and as such, no sanction is required to prosecute the petitioner. If at all when the petitioner was discharging his official duty any crime alleged, it requires sanction as contemplated under Section 197 of Cr.P.C. Therefore, there is no infirmity or illegality in the order passed by the Courts below and it does not warrant any interference by this Court.

7.Heard the learned counsel appearing on either side and perused the materials available on record.

8.The petitioner is the sole accused. From the year 1999 – 2002, the petitioner failed to account the amount received from the depositors to the Branch office of Marunkapuri Post Office and thereby he misappropriated to the tune of Rs.23,062/-. During the period 1999 – 2002, the petitioner was a Post Master at Marunkapuri Branch.

9.On perusal of exhibits also revealed that the passbook reflects a higher amount and the ledger which was maintained by the Post Office shows only a lesser amount. Therefore, admittedly, the petitioner, after receipt of money from the depositors, failed to account the same in the Post Office account. Therefore, the prosecution proved the allegation of misappropriation to the tune of Rs.23,062/-.

10.The only point for consideration in this revision is whether the petitioner was a direct employee of the Postal Department and whether he had supervisory power. Admittedly, the petitioner was working as a Branch Post Master of Marunkapuri Post Office Branch. P.W.1 also categorically deposed as follows:- vjphpia vdf;F Qhgfk; ,Uf;fpwJ. "

Vjphp kUq;fhg[hp fpis mQ;ryfj;jpy; fpis mQ;ryf mjpfhhpahf gzpg[hpe;jhh;. vq;fs; Jiwapy; Jiw rhh;e;j gzpahsh;fs; kw;Wk; Jiw rhuh Kfik cs;sJ vd;why; rhpjhd;. 2001k; Mz;oypUe;J fpuhkpd; lhf; nrtf; vd;W khw;wk; bra;ag;gl;lJ. $pov];rpy;

cs;sth;fs;

epue;jukhdth;fs; fpilahJ. vq;fs; mYtyfj;jpy; ,Ug;gth;fSf;fhd; nkyhz;ik

mjpfhuk;

kw;Wk;

kw;w nkyhz;ik ,y;yhjth;fSf;fhd mjpfhuq;fs; Fwpj;J tpj;jpahrk; bjhpa[k; vd;why; rhpjhd; vjphpf;F nkyhz;ik mjpfhuk; ,y;iy. ,e;j tHf;fpy; Ma;t[ 1999 Kjy; 2002 tiu bra;ag;gl;Ls;sJ. me;j fhy fl;lj;jpy; me;j mQ;ryf tl;lj;jpw;fhd Ma;thsuhf 14.06.2000 Kjy; 09.06.2003 tiu ehd; ,Ue;njd; vd;why; rhpjhd;. ehd; Ma;thsuhf

,Ue;j

njjpf;F

Kd;gpUe;j Mtzq;fisa[k; ehd; Ma;t[ bra;njd; vd;why; rhpjhd;. jw;brayhf me;j fhy fl;lj;jpy; kUq;fhg[hp fpis mYtyfj;jpw;F vj;jid Kiw jw;brayhfnth Crl.R.C(MD)No.578eofe2017 my;yJ Kiwgonah Ma;t[ nkwb; fhz;nld; vd;why ; ehd; gjtp Vw;w gpd;g[ 2 Kiw Ma;t[ bra;njd;. Mat; [ bra;jij gw;wp Mtzq;fis itj;J fz;Lgpoj;J tplyhk; vd;why; rhpjhd;. vd;id jtpu ntW ahuhtJ Ma;t[ bra;Js;shh;fsh vd;why; 1999k; MzL; Ma;t[ braa; g;glL; s;sJ. me;j Mat; py; ,tt; Hf;fpy; rk;ge;jg;gll; FiwghLfs ; fz;lwpag;gl;ljh vd;why; ,y;iy. ,e;j tHf;F rk;ge;jgll; Ma;it ehd; jw;brayhf bra;njdh my;yJ nkyjpfhhpapd; cj;jut[go bra;njdh vd;why; Fspj;jiy jiyik mQ;ryfj;jpy; ,Ue;J 2081387 vd;w fzf;fpw;fhd gh]; gj[ ;jfj;jpy ; tpj;jpahrk; ,Ug;gij Rl;o fhl;o vdf;F gh]; g[j;jfk; mDg;gg;gl;lJ. mjd; mog;gilapy; ehd ; Mat; [ bra;njd;. fhytiu Mat; [f;F bry;Yk;nghJ gh]; g[j;jfqf; s; kw;Wk; mYtyf gjpntLfisa[k ; Mat; [ braa; ntz;Lk; vd;why; Fwpg;gpll; gh]; g[j;jfq;fspd; vz;zpf;ifia ghhf; f; ntz;Lk;. midj;J gh]; g[j;jfq;fis ghh;f;f ntzo; a mtrpak; ,y;iy. 8 nrkpg;g[ fzf;Ffs;> 2 Mh;o fzf;Ffs;> 2 oo fzf;Ffs;> fzf;Ffs; ghhf; f; ntz;Lk;. vt;tst[ vz;zpf;ifapy; ,Ue;jhYk ; nkw;go vz;zpf;ifapy; kw;Wk; fzf;F gj[ ;jfqf; is ghh;j;jhy; nghJkhdjh vd;why; nghJkhdJ. ehd; fhytiu Ma;t[ braj; nghJ> gh]; gj[ ;jfqf; spy ; ve;jtpjkhd FiwghLk; fzl; wpatpy;iy vd;why ; rhpjhd;. mf;nlhgh; 2002k; Mz;L Crl.R.C(MD)No.578eofe2017 Fspjj; iyapy; ,Ue;J fojk; fpilj;jJ njjp vdf;F Qhgfk; ,y;iy. ehd; miHg;ghiz mDg;gp tprhhpj;njdh vd;why; mtrpak; ,y;iy ehnd neuoahf brd;W tprhhpj;njd;. kUq;fhgh[ p fpis mYtyfj;jpy; vd;bddd; fzf;Ffs; vj;jid vz;zpf;ifapy; ,Uf;Fk; vd;W vd;dhy; brhy;y KoahJ. mjd; mog;gilapy; 4 eghf; is Ma;tpy ; tprhhpf;f ntz;Lk; vd;W vdf;F njhd;wpaJ vd;why ; Kjy; fzf;fpnyna bjhifapy; tpj;jpahrk; ,Ue;jjhy ; me;j Kfhe;jpuj;jpd; mog;gilapy; kw;w fzf;Fjhuh;fis mZfp mth;fSila gh] ; g[j;jfq;fis ghh;j;njd;. kw;w fzf;Fjhuh;fis mthf; sJ tPlo; y; itj;J tprhhpj;njdh my;yJ mYtyfj;jpy; itj;J tprhhpj;njdh vd;why; mthf; s; ,Ug;gplk; brd;W tprhhpj;njd;. mq;F itj;Jjhd; mth;fsplk; thf;F%yk; bgw;nwd;. thf;F%yk; thq;Fk;nghJ ehd; kl;Lk; thq;fpnddh my;yJ ntW ahuhtJ cld; ,Uej; hhf; sh vd;why; rhpahf epidt[ ,y;iy. ehd; tprhhpjj; rhl;rpfs; gof;fhj ghku kff; s; vd;gjhy; mjpfhhp vd;w njhuizapy; mth;fsplk; vGjhj ngg;ghpy ; ifbahg;gk; kl;Lk; thq;fp bfhz;nld; vd;why; rhpay;y;. tPlL; f;F brd;wnghJ fzf;F itj;Js;s egnu ,Ue;jhuh my;yJ tPlo; y; ,Uf;Fk; ntW ahhplkhtJ thf;F%yk; thqf; pnddh vd;why ; vk;.$p ghf;fpa jpyfk; kw;Wk; Rfe;jp Mfpnahhf; s ; rhh;ghf fnzrd; vd;gtiu tprhhpj;njd;. mjd;gpd;g [ rk;ge;jg;gl;l fzf;Fjhuh;fis tprhhpj;njd;. bkhj;j rhl;rpfisa[k; btt;ntW njjpapy; tprhhpj;Js;nsd; vd;Wk; vt;ttst[ ehl;fspy; tprhhpj;njd; vd;why; Rkhh; 2 3 khjq;fSf;Fs; tprhhpj;Jtpl;nld;. –

bgaiu kl;Lk; brhy;fpnwd; njjp bjhpahJ vd;Wk; mth;fis

Mtzq;fis

goj;J

ghh;j;J brhy;fpnwdh vd;why; epidt[ cs;sij brhy;fpnwd;. 2 -3 khjq;fspy; kw;w rhl;rpfs; ahiuahtJ tprhhpj;njdh vd;why; tprhhpj;njd;. tprhuizapd; Kotpy; tHf;F jhf;fy; bra;a ntz;Lk; vd;Wk; Kot[f;F te;njd; vd;why; rhpjhd;. mt;thW Kot[ bra;j gpd;dh; fhty; Jiwf;F vg;nghJ g[fhh; bfhLj;njd; vd;why; 17.04.2003 md;W g[fhh; bfhLj;njd;."

11.Accordingly, the petitioner was not a permanent employee under the Postal Department and he was appointed under the Gramin dock sevag. Therefore, he has to be convicted for the offence punishable under Section 408A of I.P.C. Accordingly, the conviction is modified under Section 408A of I.P.C instead of 409 of I.P.C. In so far as the sentence is concerned, considering the age of the petitioner and also the manner in which the offence is made out by the petitioner, this Court is inclined to reduce the sentence from three years to the period which was already undergone by the petitioner and hence, the sentence is reduced from three years to the period which was already undergone by the petitioner. Accordingly, this Criminal Revision Case is partly allowed.

28.04.2023 NCC : Yes/No Index : Yes/No Internet : Yes ps To

1.The Principal Sessions Judge, Trichy.

2.The Judicial Magistrate, Manapparai.

3.The Sub-Inspector of Police, Puthanatham Police Station.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

G.K.ILANTHIRAIYAN, J. ps

28.04.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.04.2023 CORAM THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Ezhilmuthu Venkatesan ... Revision Petitioner/ Appellant/Accused Vs. The Sub-Inspector of Police, Puthanatham Police Station, Crime No.177 of 2003. ... Respondent/ Respondent/Complainant PRAYER: Criminal Revision Case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records and set aside the Judgment dated 02.11.2016 in C.A.No.27 of 2016 on the file of the learned Principal Sessions Judge, Trichy, confirming the Judgment, dated 14.05.2016 in C.C.No.238 of 2009 on the file of the learned Judicial Magistrate, Manapparai and acquit the accused/revision petitioner. For Petitioner : Mr.R.Paranjothi For Respondent : Mr.K.Sanjai Gandhi Government Advocate (Criminal Side)