Gurdev Singh, J. - (1.) THERE was one co -operative society by the name of Raipur Handloom Workshop Cooperative Industrial Society Limited (hereinafter referred to as 'the Society'). The Petitioner/accused, Sohan Singh, was the president of that Society. On 21.3.1993, a resolution was passed by the Society, vide which the accused was given the authority for getting the cash credit limit of Rs. 30,000/ -, in Patiala Central Co -operative Bank Limited, Patiala (hereinafter referred to as the 'Bank'), renewed for the period from 1.4.1993 to 31.3.1994. He was authorised to put his signatures on the documents of the bank. Cheque dated 7.7.1993 for the sum of Rs. 28,000/ - Ex.P.W. 8/A was presented to the bank by the accused and that amount was withdrawn by him from the account of the society. On 19.7.1993, he presented cheque of Rs. 1,000/ - Ex.P.W. 8/C and on the basis thereof withdrew a sum of Rs. 1000/ - from the bank. The amount so withdrawn by him was meant for the members of the Society and was to be disbursed to them. The accused failed to do so and criminally mis -appropriated that amount. On 6.10.1993, a resolution was passed by the Society for taking proceedings against the accused. Accordingly, letter was written to the Inspector of the Industrial Co -operative Societies, Patiala, for the registration of a criminal case against the accused. That Inspector wrote a letter to the Assistant Registrar for the registration of the FIR against the accused. Thereafter, the Assistant Registrar gave written application to the S.S.P Patiala, and on the basis thereof FIR Ex.P1 was registered against the accused under Section 408 IPC. When the complaint made by the Society was enquired into by Manjit Singh Inspector Co -operative Societies, the accused admitted before him that he had withdrawn Rs. 29,000/ - on behalf of the Society and utilised that amount for his personal use. He made that statement in writing also (P.W. 7/A). The matter was investigated by Ajaib Singh ASI, who collected the relevant record and recorded the statements of the witnesses. After the completion of the investigation, the challan was put in before the Judicial Magistrate, Ist Class, who found sufficient grounds for presuming that the accused committed offence punishable under Sections 408 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, the prosecution examined Karam Singh P.W. 1, Harchand Singh P.W. 2, Basant Singh P.W. 3, Sarwan Singh P.W. 4, Deva Singh P.W. 5, Shamsher Singh P.W. 6, Manjit Singh P.W. 7, Mihan Singh P.W. 8, Ram Sarup P.W. 9 and ASI Ajaib Singh P.W. 10. After the evidence was closed by the prosecution, the accused was examined and his statement was recorded under Section 313 Code of Criminal Procedure. 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 circumstances, except that he was the President of the Society. He stated that all the money matters were being looked into by the cashier of the Society, who was keeping the accounts with him. He had no connection with the money dealings and false case has been made against him on account of the party faction in the Society. He was called upon to enter on his defence, but he did not produce any evidence. After going through the evidence so proved on the record, hearing learned P.P for the State and learned defence counsel for the accused, the Judicial Magistrate, Ist Class, convicted the accused and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/ - and in default thereof to further undergo rigorous imprisonment for a period of 15 days, vide judgment dated 19.5.1999. Against that conviction and sentence, the accused preferred an appeal, which was dismissed by the Additional Sessions Judge, Patiala, vide judgment dated 17.12.2002. Now he has come up with the present revision against that conviction and sentence.
(2.) I have heard learned Counsel for both the sides. It has been submitted by learned Counsel for the accused that it is neither the case of the prosecution nor any evidence was produced for proving that the accused was servant or clerk of the Society and therefore, he could not have been convicted for the offence under Section 408 IPC. No such document was proved on the record to show that the accused alone, as President of the Society, was entitled to withdraw the amount from the bank. The prosecution itself produced evidence to the effect that all the transactions were being conducted under the signatures of the accused and the cashier of the Society. In that eventuality the cashier of the Society was equally liable, but he was never arrayed as an accused. No document expert was examined by the prosecution for proving that money from the bank was withdrawn under the signatures of the accused. That itself makes whole of the prosecution case doubtful and the conviction of the accused could not have been recorded. He also tried to assert that the accused could not have withdrawn the amount from the bank as, according to the prosecution itself, all the records and the account books were being kept by the cashier. In the last, he has submitted that the accused is old person of 70 years, who has faced the agony of protracted trial for last more than 17 years and the sentence imposed upon him be reduced.
(3.) LEARNED State counsel has controverted all these contentions of learned Counsel for the accused by submitting that there is sufficient evidence on the record that the accused was President of the Society and in that capacity had withdrawn a sum of Rs. 29,000/ - from the bank without joining the cashier with him and failed to disburse that amount to the members of the Society and as such criminally mis -appropriated that amount. The maintaining of records and the withdrawal of the amount from the Bank are two different things and that amount could have been withdrawn by the accused in the absence of the records. Looking into the gravity of the offence, there is no question of reducing the sentence of imprisonment so imposed upon the accused.;