The revision petitioners are the first and fifth accused in C.C.No.327 of 2000, on the file of the learned Judicial Magistrate No.II, Virudhunagar. Totally, there were five accused in this case. They stood charged for the offences under Sections 406 and 409 I.P.C. After trial, the Trial Court, by Judgment, dated 21.09.2006, found the accused guilty for the offences under Sections 406 and 409 I.P.C., and convicted and sentenced each of them to undergo two years rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month for each offence. Challenging the same, the petitioners / A1 and A5 along with A2 and A3 had preferred an appeal in C.A.No.59 of 2006, on the file of the learned Additional Sessions Judge, Fast Track Court, Virudhunagar and the Appellate Court, by Judgment, dated 22.02.2008, partly allowed the appeal by setting aside the conviction and sentence imposed under Section 406 I.P.C., as against the first petitioner / first accused and 409 I.P.C., as against the second petitioner / fifth accused and modified the sentence imposed on the first petitioner / first accused for the offence under Section 409 I.P.C., to undergo six months rigorous imprisonment and to pay fine of Rs.1000/-, in default, to under rigorous imprisonment for three months and the second petitioner / fifth accused to undergo six months rigorous imprisonment and to pay a fine of Rs.1000/-, in default, to undergo three months rigorous imprisonment for the offence under Section 406 I.P.C. Challenging the same, the petitioners, who are A1 and A5 respectively, have filed the present revision.
2. The case of the prosecution in brief in C.C.No.327 of 2000 is that the first petitioner / first accused was the Secretary of Appaiya Naickan Patti Primary Agricultural Bank from 27.11.1974 to 21.09.1992. The second accused was the President of the said Society from 09.10.1990 to 27.07.1991. The third accused was a Salesman in the said Society from the year 1988 till 13.10.1992. The fourth accused was the Secretary of the said Society from 28.03.1992 to 25.04.1992. The second petitioner / fifth accused was the Salesman of the said Society from 19.03.1991 to 29.04.1992. When the first petitioner / first accused was the Secretary of the Society, there had occurred deficit in stock to the tune of Rs.1,646.18 and deficit in cash balance to the tune of Rs.1000/- and that he along with A2 had misappropriated a sum of Rs.2,698.75 and he along with A4 had misappropriated Rs.5996.55 by committing deficit in the stock of fertilizer and pesticides and misappropriated Rs.1125/- by falsifying accounts without proper receipts, in all totalling to Rs.12468.48. In respect of second petitioner / fifth accused, there was deficit in stock to the tune of Rs.15,037/-. The deficit in stock for the period relatable to other accused is not dealt with in this Order, as they are unnecessary for this revision.
3. In order to prove the case of the prosecution, as many as six witnesses were examined and 78 documents were exhibited. All these witnesses have spoken about the inspection made for the stock and the accounts and the deficit found in the Society. When the above incriminating materials were put to the accused, they denied the same. On the side of the defence, second petitioner / fifth accused was examined as D.W.1 and three documents were marked as Exs.D1 to D3. The first petitioner / first accused took a plea before the Trial Court that he was not responsible for the deficit in stock. The second petitioner / fifth accused had taken a defence that he had handed over the daily cash collection to the fourth accused and that the fourth accused, who was the Secretary, had issued temporary receipts for that amount and these temporary receipts were marked as Exs.D1 to D5 on the side of the defence before the Trial Court and that even in the enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act, the Enquiry Officer had not found the second petitioner / fifth accused guilty and that the Courts below did not take into consideration, the defence documents marked at the time of trial and however, it was submitted that the second petitioner / fifth accused was only a Salesman for a period of 9 days and that when there is a specific evidence that he had handed over the daily cash to the Secretary / fourth accused, he cannot be made criminally liable. Having considered the oral and documentary evidence, the Trial Court negatived the defence taken by the accused and convicted them, which was modified subsequently, by the Lower Appellate Court. That is how, the petitioners are before this Court with this revision.
4. Heard Mr.R.Murugappan, learned counsel for the petitioners / A1 and A5 and Mr.C.Ramesh, learned Additional Public Prosecutor appearing for the respondent and carefully perused the materials available on record.
5. The learned counsel for the petitioners submitted that in respect of the first petitioner / first accused, the plea would only be with regard to question of sentence. However, in respect of the second petitioner / fifth accused, he submitted that there is a categorical evidence by P.W.3 / Enquiry Officer stating that?vjphp fdfuh[; vd;dplk; nfhLj;j thf;F%yj;jpy; nrayh; rPdpr;rhkpaplk; &.15>502.20-I nfhLj;jjhfTk; mjw;F mr;R urPJ Nfl;lNghJ> mr;R urPJ jUtjhf nrhd;dhh; vd;Wk;> nrayh; toq;fpa jw;fhypf urPij vd;Dila tprhuizapy; rkh;g;gpj;Js;sjhfTk; nrhy;ypAs;Nsd; vd;why; rhpjhd;. ehd; me;j urPij ghh;j;jpUf;fpNwd;. me;j jw;fhypf urPJ jhd; vd;dplk; fhl;lg;gLtJ> nkhj;jk; 4 urPJfs;. v.j.rh.M.1 thpir 5-Mk; vjphp ifahly; nra;j nkhj;j njhif &.15>034.60 MFk;.? The learned counsel for the petitioners further submitted that the second petitioner / fifth accused had worked only as a Salesman and and that he had remitted the daily collected cash to the then Secretary / A4 and to prove the same, he had marked the temporary bills issued by A4 to him and that P.W.3 / Enquiry Officer, in his deposition, had admitted that the second petitioner / fifth accused remitted every day sale proceeds to the fourth accused and admittedly the receipts issued by the fourth accused had been admitted by P.W.3, whereas the Courts below erred in not believing the receipts. The learned counsel for the second petitioner / fifth accused contended that the Courts below ought to have acquitted the second petitioner / fifth accused believing the documents marked on the side of the defence, that too when P.W.3 / Enquiry Officer had accepted them. However, the Trial Court erred in citing a flimsy reason that the amounts in the temporary receipts did not tally with the amount stated to have been misappropriated by the second petitioner / fifth accused thereby, refused to accept the evidence of P.W.3 and refused to believe the defence documents and convicted the accused. Thereby, the learned counsel for the petitioners prayed for acquitting the second petitioner / fifth accused.
6. I have consciously gone through the records and the evidence. P.W.3 / Enquiry Officer, who had accepted that the second petitioner / fifth accused had handed over the daily collection amounts to the fourth accused and that it was proved by the accused at time of enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. When that being so, the reasoning given by the Trial Court that the amounts in the temporary receipts did not tally with the amount stated to have been misappropriated is not proper and the Trial Court ought to have accepted the evidence on the side of the defence and acquitted the second petitioner / fifth accused, who had worked as Salesman and that too when there is evidence of P.W.3 supporting his case.
7. In respect of first petitioner / first accused, the learned counsel for the petitioners relied on the Judgment of this Court, dated 16.06.2015, in Crl.R.C.(MD) No.314 of 2008 [Seenisamy vs. State] in respect of the fourth accused in the very same case, who was similarly placed, wherein, this Court, while confirming the conviction, took into consideration the aggravating and mitigating circumstances that the fourth accused was in prison for 22 days, reduced the substantive sentence of imprisonment to the period of sentence already undergone and in turn, imposed an additional fine of Rs.5,000/- and in default, to undergo simple imprisonment for four weeks.
8. The learned Additional Public Prosecutor submitted that though the amounts have been repaid, it had been done only after the Enquiry Officer found the petitioners guilty in the enquiry under Section 81 of the Tamil Nadu Co- operative Societies Act. Moreover, public money had been misappropriated by them.
9. The learned counsel for the petitioners submitted that the first petitioner / first accused is aged about 62 years and he had suffered incarceration for 22 days and he has also paid the amount of Rs.12,865/- even before the trial to the Enquiry Officer and prayed that it may be taken as mitigating circumstances and prayed for leniency and prayed that the same yardstick as that to the co-accused in Crl.R.C.(MD) No.314 of 2008 may be applied to the first petitioner.
10. Taking into consideration the facts and circumstances of the case and also the submissions of the learned counsels on either side and also taking into consideration the order passed in Crl.R.C.(MD) No.314 of 2008, with regard to the co-accused (4th accused), who is similarly placed as that of the first petitioner, this Court is of the view that it would be in the interest of justice to reduce the substantive sentence of imprisonment to the period of sentence already undergone and to impose additional fine in respect of the first petitioner / first accused and in sofar as the second petitioner / fifth accused is concerned, this Court holds that the second petitioner / fifth accused has proved his case by the evidence of P.W.3 and the defence documents marked on his behalf with regard to his plea of handing over of collection monies to the fourth accused and thereby, finds him not guilty and thereby, the conviction and sentence imposed as against him is liable to be set aside.
11. In the result,
(i) In respect of the first petitioner / first accused, the conviction imposed by the Courts below is confirmed. However, the sentence imposed on him by the Lower Appellate Court is modified and the substantive sentence of imprisonment is reduced to the period already undergone and further, this Court imposes additional fine of Rs.5,000/- and in default, to undergo simple imprisonment for four weeks.
(ii) In respect of the second petitioner / fifth accused, the conviction and sentence imposed by the Courts below are set aside. He is acquitted from the charges framed against him. The fine amount, if any, paid by the second petitioner is directed to be refunded to him and the bail bond executed by him shall stand cancelled.
(iii) Accordingly, the revision is partly allowed.
To:
1.The Additional Sessions Judge, Fast Track Court, Virudhunagar.
2. The Judicial Magistrate No.II, Virughunagar.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Sub Inspector of Police, District Crime Branch, Virudhunagar, Virudhunagar District..