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Sunil v/s The State of Maharashtra


    Criminal Revision Application (Revn) No. 129 of 2015

    Decided On, 07 March 2019

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE M.G. GIRATKAR

    For the Applicant: R.M. Daga, Advocate. For the Respondent: H.D. Dubey, Additional Public Prosecutor.



Judgment Text

Oral Judgment:

1. The present revision is against the judgment dated 07.10.2015 passed by the learned Additional Sessions Judge, Nagpur in Criminal Appeal No.61 of 2014, by which he has confirmed the judgment of conviction of applicant (hereinafter referred as accused) awarded by learned Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 3249 of 2008 on 14.03.2014.

2. The accused was working as a Clerk in the District Administration in the Inspection Branch. He was one of the members of the Inspection party to inspect the Court of Judicial Magistrate, First Class, Saoner. During inspection, this accused had not pointed out the relevant entries/blank pages of the register. During inspection in the year 2005, it was noticed that the Clerk Shri Damahe has committed misappropriation of amount of Rs. 2,45,989/- and amount of Rs.46,629/- was temporarily misappropriated and accused Damahe not taken the entry of receipt of cash in the cash book and, therefore, Presiding Judge of that Court could not find out the misappropriation. During inspection, all the registers were checked by the inspection party. At that time it was found that accused Damahe has committed misappropriation of said amount. Present accused and other accused who were the members of inspection party not shown the concerned register and, therefore, all they were prosecuted for the offence punishable under Sections 381, 409m 420, 466, 477, 201, 204, 217, 218 of the Indian Penal Code. The present accused and accused Jaiprakash were charged for the offence punishable under Sections 201 and 217 of the Indian Penal Code.

3. Heard Shri R.M. Daga, learned Counsel appearing on behalf of the applicant/accused and Shri H.D. Dubey, learned Additional Public Prosecutor appearing on behalf of the respondent/State.

4. Shri Daga, learned Counsel for the accused has pointed out the judgment in Criminal Appeal No. 70 of 2014 preferred by accused Jaiprakash and submitted that though there are same allegations against both the accused, the same Sessions Judge has taken a different view in Criminal Appeal No. 70 of 2014. The said appeal came to be allowed by recording his findings in para 17 holding that it was a mistake and there was no deliberate intention on the part of accused Jaiprakash. Accused Jaiprakash came to be acquitted for the offence punishable under Sections 201, 217 and 218 of the Indian Penal Code. On the same set of facts, learned Judge has dismissed the appeal of present accused. Therefore, learned Counsel for the applicant/accused has prayed that the revision be allowed and conviction be set aside.

5. Shri Dubey, learned APP has supported the impugned judgment and submitted that being a member of inspection party, it was his duty to point all the correspondence to the head of inspection party. But, he deliberately not done so with an intention to screen the evidence against the main accused. Therefore, present revision is liable to be dismissed.

6. Perused the impugned judgment and the judgment in Criminal Appeal No. 70 of 2014. Appeal filed by accused Jaiprakash is allowed. Learned Additional Sessions Judge recorded his findings in para 17 as under :

“17. … But, mere not bringing the said entries to the notice of the Judicial Officer or the inspection party does not amount to causing of disappearance of evidence of offence when the said entries are in the said register and the register was available in the court. The prosecution for the offence punishable under Section 201 of IPC, is required to prove that the appellant knew or had reason to believe the commission of such offence and with that knowledge or belief the appellant caused any evidence of the commission of that offence to disappear. There is no iota of evidence in this regard. Mere fact that the accused did not point to the Presiding Officer and the inspection party would not amount to causing disappearance of the evidence. ...”

7. From the perusal of evidence, the role of this accused is same as like as Jaiprakash. Accused is not the beneficiary. There is no allegation about any misappropriation etc. against the present accused. The only allegation against him that he did not point out some documents/register to the head of inspection party. The same allegations were levelled against accused Jaiprakash. He was also one of the members of inspection party. But, he is acquitted by the learned Additional Sessions Judge. The same allegations are against the present accused. Being a member of inspection party, he has to verify the record. Whether particular registers were verified by the accused or not is not clear. Moreover, it cannot be said that he helped the main accused to screen the evidence by not pointing out to the head of inspection party about the blank pages. On the same set of evidence adduced by the prosecution, co-accused Jaiprakash is acquitted by the learned Additional Sessions Judge. The same charges and same evidence are also against the presen

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t accused. 8. In that view of the matter, revision is allowed. The impugned judgment, dated 14.03.2014 passed by learned Chief Judicial Magistrate, Nagpur in Regular Criminal Case No. 3249 of 2008 and confirmed by learned Additional Sessions Judge7, Nagpur vide judgment dated 07.10.2015 in Criminal Appeal No. 61 of 2014 are hereby quashed and set aside. Accused is acquitted of the offence punishable under Sections 201 and 217 of the Indian Penal Code. Bail bonds stand cancelled. Fine, if any, paid by the accused, be refunded. R and P be sent back.
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