Wednesday, 20 January 2016

Whether sanction for prosecution is required for offence of misappropriation by public servant U/S 409 of IPC?

The   applicant   had   urged   that   his   prosecution
would stand vitiated on the ground that no valid prior
sanction was obtained before filing of the charge­sheet.
Learned Magistrate had considered the facts of the case
and   had   held   that   since   the   applicant   was   being
prosecuted   under   section   409   of   I.P.C.,   there   was   no
question of obtaining valid sanction and moreover conduct
of the accused was sufficient to frame charge against him
under   section   409   of   the   Indian   Penal   Code. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 139 OF 2003
Sakharam s/o. Abhimanyu Gavane .
Versus
The State of Maharashtra 
CORAM :  SMT.SADHANA S. JADHAV,J.
DATED : 23.04.2015
Citation; 2015 ALLMR(CRI)4259

1. The   applicant   herein   is   convicted   by   learned
Chief   Judicial   Magistrate,   Parbhani   in   R.C.C.   No.36   of
1993 for the offence punishable under section 409 of the
Indian   Penal   Code   and   is   sentenced   to   suffer   rigorous

imprisonment   for   two   years   and   fine   of   Rs.1000/­,   in
default,   further   rigorous   imprisonment   for   six   months.
The applicant herein being aggrieved by the said judgment
and order filed Criminal Appeal No.6 of 2002 before the
Sessions Court at Parbhani.  Learned Sessions Court vide
judgment   and   order   dated   02.01.2003   had   maintained   the
order of conviction.  However, had modified the sentence
and   directed   the   applicant   to   undergo   substantive
sentence   for   six   months   and   fine   of   Rs.1,000/­,   in
default, simple imprisonment for one month.  Hence, this
Revision Application.
2. Such of the facts necessary for the decision of
this application are as follows :­
3. The   applicant   herein   was   working   as   a   Range
Forest Officer at Basmat in the year 1991. The applicant
was entrusted with the cheque worth of Rs.35,000/­ dated
05.08.1991, cheque worth of Rs.53,646/­ dated 09.08.1991

and   chdque   worth   of   Rs.8,000/­   dated   10.08.1991.     The
office   had   not   received   statement   of   account   till   31st
August, 1991 and therefore they had to depute an officer
to Basmat.   It was reported that the applicant was not
present in the office.  It had transpired in the course
of   enquiry   that   the   applicant   herein   had   encashed   the
cheques worth Rs.35,000/­ and Rs.8,000/­.   However, the
bank   had   restrained   the   applicant   from   encashing   the
cheque of Rs.53,646/­.
4. Notice was issued to the accused.   Pursuant to
the said notice, the accused was directed to deposit the
amount   withdrawn   by   him   to   the   extent   of   Rs.43,000/­.
However, the accused/applicant was absconding, hence the
Dy.   Conservator   of   Forest,   Parbhani   was   constrained   to
authorize   an   officer   to   lodge   a   report   against   the
present applicant under section 154 of Cr.P.C.   On the
basis of the report lodged by the Officer of the Forest
Department, Crime No.187 of 1991 was registered against

the applicant for offence punishable under section 409 of
Indian Penal Code.  It appears from the record that prior
to   filing   of   the   charge­sheet,   the   applicant   had
deposited the amount withdrawn by him.   However, charge
was framed.   The prosecution examined six witnesses to
bring home guilt of the accused.  
5. The   applicant   had   urged   that   his   prosecution
would stand vitiated on the ground that no valid prior
sanction was obtained before filing of the charge­sheet.
Learned Magistrate had considered the facts of the case
and   had   held   that   since   the   applicant   was   being
prosecuted   under   section   409   of   I.P.C.,   there   was   no
question of obtaining valid sanction and moreover conduct
of the accused was sufficient to frame charge against him
under   section   409   of   the   Indian   Penal   Code.     Learned
Chief   Judicial   Magistrate   had   considered   that   the
prosecution   had   adduced   cogent,   convincing   evidence   to
bring   home   guilt   of   the   accused   and   that   the   accused

deserves to be convicted.   Learned Magistrate had also
considered the fact that the applicant had deposited the
amount withdrawn by him which is sufficient evidence to
indicate   that   he   had   withdrawn   the   said   amount   for
himself and had committed criminal breach of trust in the
capacity   of   public   servant.     Learned   Magistrate   had
further considered the issue of entrustment having been
proved   against   the   accused.     Learned   Magistrate   had
considered that on 12.12.1975 the accused had deposited
entire amount along with interest and had requested that
no charge­sheet shall be filed against him since he has
returned   the   amount.     The   accused/applicant   had   placed
reliance   on   the   circular   dated   30th  November,   1978,
wherein   the   General   Administration   Department   of   the
State of Maharashtra had taken a policy decision that no
prosecution shall be initiated against the employees, if
amount   is   repaid   within   one   month   from   the   notice   of
misappropriation.  In the present case, the applicant was
found to be absconding after the office had noticed that

he had dishonestly misappropriated the cheques entrsuted
to him.  After filing of the report under section 154 of
Cr.P.C.,   the   applicant   had   deposited   the   said   amount.
Depositing the amount misappropriated would not exonerate
the applicant of offence punishable under section 409 of
the Indian Penal Code.  Learned Magistrate had convicted
the accused of the offences with which he was charged.
The findings recorded by learned Magistrate were affirmed
by   the   Appellate   Court   in   the   fitness   of   the
circumstances.
6. It appears from the Roznama that the applicant
was   also   accused   in   some   other   crime   and   was   being
produced   in   the   present   proceedings   through   jail
authorities.     This   would   simply   indicate   that   the
applicant who happened to be a public servant had some
criminal antecedents.  In Application under section 397 &
401 of Cr.P.C., it is not necessary to re­appreciate the
evidence   adduced   by   the   prosecution.   The   applicant/

accused   was   entitled   for   set   off   for   the   period   from
22.12.1992   to   08.01.1993,   28.04.1993   to   04.06.1993   and
29.11.1999 to 07.04.2000, during which he was in jail.
Hence, it appears that the applicant has undergone the
substantive   sentence   of   about   five   months   during   the
pendency   of   the   trial   and   appeal.     The   applicant   was
convicted by the Appellate Court vide judgment and order
dated 02.01.2003.  On 15.09.2003 this Court had observed
“It is submitted that the accused has already undergone
the   imprisonment   of   six   months   as   directed   by   the
Appellate Court” and Rule was issued.
7. This Court on perusal of the findings, recorded
by the Trial Court and affirmed by the Appellate Court,
is of the view that no interference is warranted in the
findings   recorded   by   both   the   Courts.     Hence,   the
conviction of the applicant for offence punishable under
section   409   of   the   Indian   Penal   Code   is   hereby
maintained.     The   sentence   of   fine   is   also   maintained.

Since   the   applicant   has   undergone   the   substantive
sentence, it is not necessary to pass any specific order.
The bail bonds of the applicant shall stand cancelled.
The Criminal Revision Application stands dismissed.
[SMT. SADHANA S. JADHAV,J.]

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