- (1.)BEING aggrieved by the concurrent findings of conviction for offence under section 408 Indian Penal Code and conviction by the Learned Trial Judge i. e. Judicial Magistrate, First Class, Bicholim, dated 30th April, 1992 in Criminal Case No. 18/5/1982 and sentence to undergo R. I. for 15 days and fine of Rs. 5,000/- and the same having been confirmed by the Additional Sessions Judge in Criminal Appeal Nos. 11 and 12 of 1992, the petitioner/appellant in Criminal Appeal No. 11/92 has preferred this revision inter alia contending that the approach by both the Courts below is not only illegal, erroneous, but is fraught with serious legal infirmities inasmuch as the Courts have bypassed the important letter, dated 14. 2. 1978 by accused No. 1 in original complaint and that the said letter is to the effect that there was a clear admission on the part of the original accused No. 1 that the amount involved in the misappropriation was the amount which was in his custody and that he was responsible for the same. It is also urged that the same amount now has been tendered by the original accused No. 1. The learned advocate for the petitioner has further urged by drawing my attention to various observations of the Court below that at best the liability of the misappropriated amount of the present petitioner would be within the arena of civil liability, but on no reckoning a criminal liability, and in that light of the matter although this is a revision, this Court should interfere in the findings recorded by the courts below and should allow the revision and set aside the conviction and acquit the petitioner of the offence under Section 408, I. P. C.
(2.)THE learned Public Prosecutor, on the other hand, has submitted and supported the judgments and has tried to emphasize that the approach by the Courts below is perfectly legal and that this Court should observe the caution of sparingly invoking the revisional jurisdiction and in that light the revision deserves to be dismissed.
(3.)IN order to appreciate these rival arguments, it is imperative to traverse through broadly the facts canvassed on behalf of the prosecution. The present petitioner has been working as a Chairman of Narva Vividh Karyakari Sahkari Seva Society Limited; whereas other accused Suryakant Bhaskar Falari was a Secretary between the period 1. 7. 1977 and 14. 2. 1978. This is a relevant period for the prosecution because it is alleged that when the auditor carried out the audit of the Society he found that amount of Rs. 6235. 81 ps. was in the custody of the Secretary and Rs. 88. 50 ps. in the custody of present petitioner, who was the Chairman and that this amount although shown in the cash at balance was not forthcoming when the petitioner and the Secretary were called upon to produce the same. This was, therefore, clearly a case of criminal breach of trust by the petitioner as well as the Secretary on the basis of this audit report, police case was filed and the petitioner and. the Secretary were prosecuted for offence under section 408 nw section 34, I. P. C.