GURDEV SINGH, J. - (1.) THE petitioner-accused, Hukam Chand, was the Sarpanch of the Gram Panchayat of village, Bhaupur. On 14.1.2000, one fish pond of the Panchayat was auctioned for the year 2000-01. During that auction, Randhir , PW-7, gave the highest bid of ` 26,200/-. That amount was received by the accused and he issued receipt No. 95 dated 14.1.2000. For want of quoram that auction was not approved by the B.D. & P.O. THE accused did not enter that amount in the Account Books of the Panchayat and even managed to remove the counterfoil of the receipts from the record. He criminally misappropriated the said amount under a well thought plan. About this criminal act of the accused, application Ex. PW2/A, was given by the B.D. & P.O. to the Officerin- Charge of police station, Israna, and on the basis thereof, FIR, Ex. PW2/B, was recorded against him under Sections 409 and 420 IPC. THE case was investigated by Sube Singh ASI, PW-2. THE said receipt, Ex. PW3/D, and the other documents were taken into possession by that ASI, vide Memos Ex. PW2/H and PW2/I. In the course of investigation, the accused was arrested. On 10.7.2001, his specimen signatures, Ex. PB, were taken before JMIC, Panipat. Those specimen signatures and receipt, Ex. PW3/D, were sent to FSL for comparison. It was reported by the Senior Scientific Officer(Documents) of that Laboratory, vide her report Ex. PA, that those signatures were of one and the same person. After the completion of the investigation, the challan was put in before JMIC, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 409 and 420 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined Dalbir , MHC, PW-1, Ashok Kumar SI, PW-1/A, Sube Singh SI, PW-2, Mahender Pal Kaushik, B.D.& P.O.,Nissing, PW-3, Nahar Singh, PW-4, Rampal, B.D.& P.O., Israna, PW-5, Phool Kumar, PW-6, Randhir, PW-7 and Dhira, PW-8. After the close of the prosecution evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. THE incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstance and pleaded his innocence. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced on the record, and hearing Assistant Public prosecutor for the state and defence counsel for the accused, JMIC convicted the accused for the offences under Section 409 IPC and sentenced him to undergo simple imprisonment for a period of three years and to pay a fine of ` 3000/- and in default to further undergo rigorous imprisonment for a period of one month. Against that conviction and sentence, the accused preferred an appeal but the same was dismissed by Additional Sessions Judge, Panipat, vide judgment dated 11.2.2009. Now, he has come up with the present revision against that conviction and sentence. I have heard learned counsel for both the sides.
(2.) IT has been submitted by counsel for the accused that the amount in dispute was returned by the accused to Randhir and a compromise was entered into between them and the said Randhir Singh, PW-7, had admitted that fact during his cross examination and had also given his affidavit, Ex. D.1. Therefore, it cannot be said that any such offence under Section 409 IPC was committed by the accused. She also tried to contend that no liability could have been fastened upon the accused in the absence of proving of the counterfoil of the receipt in question on the record by the prosecution. In the last, she submitted that lenient view may be taken and the sentence so imposed upon the accused, which is on the higher side, be reduced. After examining the records of the trial court, this Court has come to the conclusion that the findings so recorded by the trial court and upheld by the appellate court, do not suffer from any illegality or perversity. It stands proved from the statement of Randhir, PW-7, itself that he gave a bid of ` 26,200/- at the time of auction of the fish pond by the Gram Panchayat of the village and that amount was received by the accused, regarding which he issued receipt, Ex. PW3/D, under his signatures. He categorically stated that this amount was handed over by him to the accused and he had issued that receipt under his own signatures. The deposition of Mahender Pal Kuahik, B.D.& P.O., PW-3, is to the effect that this amount was not accounted for by the accused in the Account Books of the Panchayat. No entry of this receipt was made in the Cash Book and even the counterfoil was missing from the records. Nahar Singh, PW-4, had taken the charge of the Sarpanch from the accused and he has fully corroborated the statement of Mahender Pal Kaushik, B.D.& P.O., PW-3.
(3.) NO doubt, it was stated by Randhir, PW-7, during his cross examination that he had received back sum of ` 26,200/- from the accused and had given his affidavit, Ex. D.1, to that effect, but question arises, when that amount was returned. It is very much clear from his statement and his affidavit, Ex. D.1, that he had to file a civil suit for the recovery of that amount and the amount was returned by the accused only after that suit was filed. That suit was filed after the registration of the present FIR. From the evidence produced by the prosecution, it stands proved that the accused did not deposit this amount on 14.1.2000, after receiving the same from Randhir and even did not account for that amount in the Account Books of the Panchayat. He converted that amount for his own use and criminally misappropriated the same. The subsequent act of the accused in returning that amount after 8-9 months, will not absolve him from the criminal liability already incurred by him. There is no ground for setting aside the well reasoned conviction recorded by the trial court and upheld by the appellate court.;