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amount withdrawn by him to the extent of Rs.43,000/.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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