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Submitted By: Adv. Nilesh C Ojha

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Vijay Kumar v. State of Rajasthan. (Rajasthan)(Jaipur Bench) Law Finder Doc Id # 387743
2013(2) RLW 1578 : 2012 CriLJ 2790 : 2012(4) ECrC 189 : 2013(7) R.C.R.(Criminal) 2048 : 2012(4)
W.L.C. 211 : 2012(2) Cri. L.R. (Raj.) 1110 : 2012(2) RajCriC 833
RAJASTHAN HIGH COURT
(Jaipur Bench)
Before:-Mrs. Nisha Gupta, J.
S. B. Criminal Revision Petition Nos. 623 to 628 of 1999. D/d. 16.4.2012.
Vijay Kumar - Petitioner
Versus
State of Rajasthan - Respondent
For the Petitioner :- V.R. Bajwa, Deepak Soni, Parveen Balwada, Advocate.
For the Respondent :- Ms. Alka Bhatnagar, Public Prosecutor.
A. Criminal Procedure Code, 1973, Sections 219, 464 and 465 - Consolidation of trials of an
accused charged for different offences - Accused was fully aware of the charges levelled
against him and was given every chance of defence - Nothing pointed out from the record to
suggest that he had been prejudiced by clubbing of cases in any manner - His right of defence
was not frustrated - Accused cannot claim to be affected prejudicially when the himself had
moved application before trial Court for consolidation of all cases against him - Contention
rejected.
[Paras 11 and 12]
B. Criminal Procedure Code, 1973, Section 218 - Indian Penal Code, 1860, Sections 409 and 477A -
Joinder of charges - Plea of accused that he being charged for offence under Section 409, Penal
Code as he was banker, he could not be convicted for the offence under Section 477A where
bankers had not been included - Accused was charged for offence under Section 409, because
he was public servant at the relevant time - Plea of accused held not tenable and rejected.
[Paras 14 and 16]
C. Indian Penal Code, 1860, Section 477A - Falsification of accounts - Conviction for the offence
of - Accused entered deposits in the pass book of depositors but did not enter the amounts in
the accounts books of the post office - This was falsification of accounts, whether by act or by
omission - Accused had withdrawn the amount by forged means and also falsified the account
books - He had not entered some of the amounts on the date of receipts - Conviction of accused
held proper - Petition dismissed.
[Para 18]
D. Evidence Act, 1872, Section 73 - Non-production of handwriting analysis report - Prosecution
fully proved that accused had falsified accounts - Being posted as Postal Assistant at relevant

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time he was the only person in-charge of the Branch and was in-charge of whole affairs to
maintain the accounts of that branch - Accused had made all the entries and also omitted to
make some of the entries - Prosecution proved the facts beyond reasonable doubts - Invoking
of power under Section 73 was not required to call for report of handwriting expert - Accused
was given option to be present before the SDM - He had not availed of same - Accused held not
out filed to complaint that handwriting report was not placed on record.
[Para 24]
E. Indian Penal Code, 1860, Section 409 - Breach of trust - Allegation against accused as to
misappropriation of money deposited in bank - Plea of accused that relationship between bank
and customer being of creditor and debtor there was no element of trust and that the whole
case of prosecution which rests on element of trust would demolish - Held that the persons
working in banks are not bankers - Accused was working as a public servant - Elements trust
was not missing - Thus plea of accused held not tenable and rejected.
[Paras 25 and 26]
F. Indian Penal Code, 1860, Section 381 - Misappropriation of money - Offence under Section
381 Indian Penal Code - Property was not in the possession of master - Money was entrusted to
the accused - He misappropriated the same - Accused held not liable to be convicted under
Section 381 of Penal Code - Contention of accused rejected.
[Para 27]
G. Indian Penal Code, 1860, Sections 409 and 477A - Breach of trust - Misappropriation of
money - Conviction for under Section 409 and 477A Indian Penal Code - Accused was public
servant at the relevant time and was entrusted with money of depositors - He falsified the
account books to defraud the depositors - The account books were in possession of the accused
- He acted fraudulently and misappropriated the money - Conviction of accused for the
offences under Section 409 and 477A, Penal Code, held proper and sustained - Revision petition
dismissed.
[Para 32]
Cases Referred :-
Daungarshi Madanlal Zunzunwala v. M/s. Deviprasad Omprakash Bajoria & Ann 11985 Cr.L.J. 19431.
Gopesh Chandra Pal & Anr v. Nirmal Kumar Das Gupta [AIR 1950 Calcutta 571.
Jayendra Vishnu Thakur v. State of Maharashtra [JT 2009(8) SC 5: (2009 AIR SCW 3898).
Manoharlal Lohe v. State of Madhya Pradesh [ 1981 Cri.LJ 1563.
R.P. Sablok v. Smt. Kaushalya Devi 11982 Cr.L.J. 1342].
Santosh Kumar & Others. v. The King [AIR 1952 Calcutta 193].
Sushil Kumar Gupta v. Joy Shankar Bhattacharjee [AIR 1971 Supreme Court 1543].
ORDER
Mrs. Nisha Gupta. J. - These revision petitions have been filed against the order dated 02.09.1999

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whereby the present petitioner has been convicted for the offences under Sections 409 and 477A
and has been sentenced for two years' rigorous imprisonment and fine of L 500/- in each criminal
cases and the appeals preferred were dismissed. Hence, these revision petitions.
2. The short facts of the case are that on 03.09.1984. an FIR Ex.P/l was lodged at PS Ramgarh by Shri
Jai Prakash Sharma, Development Officer. Postal Department. Sikar stating therein that Vijay
Kumar Sharma, who was posted as Postal Assistant was transferred to Ramgarh Shekhawati Post
Office and he handed over the charge to Shri Ganpat Ram Morya on 26.05.1984. Thereafter, he
absconded. The accused-petitioner remmined posted at Ramgarh Market Post Officer from 09.06.1983
to 25.05.1984 and during that period he misappropriated the Government money to the tune of L
26.605.38p., After a lapse of time, amount of L 1.668.28p, were deposited. A detailed report of
misappropriation of money was also classified in three heads. as narrated in the FIR, which are as
under:
(Table matter omitted .Ed.)
3. After investigation, the police filed 16 charge-sheets. taking three or less offences in each charge-
sheet committed within a period of one year for the offences under Sections 409 and 477A I.P.C. The
present petitioner was charged for the offences under Sections 409 and 477 Indian Penal Code in all
16 cases. The present petitioner denied the charges and claimed to be tried. During the trial, the
learned court below consolidated three criminal cases committed within a period of one year and
has proceeded trial by consolidating the cases in six cases. The prosecution examined as many as 10
witnesses. The accused-petitioner was examined under Section 313 Cr.P.C. After hearing the present
petitioner. the learned trial court convicted and sentenced the petitioners above and appeals have
been dismissed. Hence, these revision petitions.
4. Heard learned counsel for the parties and perused the record of the case.
5. The first contention of the present petitioner is that looking to the provisions of Section 219 Cr.P.C.
consolidation of three cases is unwarranted. Section 219 Cr.P.C. reads as under:
"219.- Three offences of same kind within year may be charged together:- (1) When a person is
accused of more than one of the same kind committed within the space of twelve months from
the first to the last of such offences, whether in respect of the same person or not, he may be
charged with, and trial at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of
punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or
local law: Provided that, for the purpose of this section, an offence punishable under Section
379 of the Indian Penal Code (45 of 1860), shall be deemed to he an offence of the same kind
as an offence punishable under Section 380 of the said Code, and that an offence punishable
under any section of the said Code, or of any special or local law, shall be deemed to be an
offence of the same kind as an attempt to commit such offence. when such an attempt is an
offence."
6. The Investigating Officer has already consolidated the three offences and again clubbing the
three cases into one, caused serious prejudice to the present petitioner and the whole trial has
vitiated.
7. The contention of the present petitioner is that every transaction, which has been narrated in
the FIR, is a distinct offence and the Investigating Officer has already consolidated three offences,

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which have been further consolidated by the trial court.

8. His further contention is that a valuable right has been infringed in view of the Principles of
Natural Justice which caused prejudice to the present petitioner and the prejudice is inherent.
There is no need to establish the prejudice and reliance has been placed on the judgement
delivered in the case of Jayendra Vishnu Thakur v. State of Maharashtra & Anr. [JT 2009(8) SC 5
: (2009 AIR SCW 3898), wherein evidence was recorded in absence of the accused and hence it was
held that infringement of such valuable right itself causes prejudice.
9. But, here, in the present case, there is no such infringement of any basic principle of Natural
Justice has shown. The present petitioner has been charged for the offences and narration of the
transactions have also been made in the charges. The present petitioner was fully aware of the
contents of the offences for which he was charged. It cannot be inferred that any of the principles
of Natural Justice have been violated. He had been given right of defence and the learned Public
Prosecutor has placed reliance on Sections 464 and 465 Cr.P.C. Sections 464 and 465 Cr.P.C. read as
under:-
"464. Effect of omission to frame, or absence of, or error in charge:- (1) No finding, sentence or
order by a court of competent jurisdiction shall be deemed invalid merely on the ground that
no charge was framed or on the ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in
fact been occasioned, it may
(a) in the case of an omission to frame a charge, order that a charge be framed and that the
trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had
upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge
could be preferred against the accused in respect of the facts proved, it shall quash the
conviction.
465. Finding or sentence when reversible by reason of error, omission or irregularity :-
(1) Subject to the provisions herein before contained, no finding, sentence or order passed by a
Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation
or revision on account of any error, omission or irregularity in the complaint, summons,
warrant, proclamation, order,judgement or other proceedings before or during trial or in any
inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for
the prosecution, unless in the opinion of that Court, a failure of justice has in fact been
occasioned thereby.
(2) In determining whether any error. omission or irregularity in any proceeding under this
Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure
of justice, the Court shall have regard to the fact whether the objection could and should have
been raised at an ear tier stage in the proceedings."
10. A bare perusal of the above provisions go to show that if there is any error, omission or

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irregularity in the framing of charge or during the trial, it will ipso facto would not affect the
finding of the competent court. To attack a finding, it is necessary that a failure of justice has in
fact been occasioned thereby should be shown.
11. The contention of the present petitioner is that prejudice is inherent, is unacceptable. The
present petitioner is fully aware of the charges levelled against him. He has been given every
chance of defence. Nothing is on record to suggest that he, in any way, has been prejudiced by
clubbing of the cases. His right of defence has not been frustrated and hence looking to the
provisions of Sections 464 and 465 Cr.P.C., the contention of the present petitioner that he has been
affected prejudicially, seems to be groundless and unacceptable.
12. To the utter surprise of this court, record of the case goes to show that on 30.03.1996, the
present petitioner himself has moved an application before the trial court for consolidation of all
the 16 cases and on the request of the present petitioner, the trial court has consolidated the cases
as indicated earlier. Now, this argument does not lie in his mouth and this view has been
strengthened by the law laid down in the judgement delivered in the case of Manoharlal Lohe v.
State of Madhya Pradesh [ 1981 Cri.LJ 1563 ] wherein it has been held as under:
"Where the accused himself wants a joint trial, the Court may allow the same not withstanding
the strict rules in other provisions. This is because the rules in this regard are designed for the
benefit of the accused and if they work to his detriment, he should get relief. The conditions
for application of this Proviso are :-
(a) The accused person must apply in writing for joint trial.
(b) The Magistrate must himself be satisfied that the accused will not he prejudiced by the
joint trial of all or some of the charges framed against him. He will then allow joint trial to
that extent."
13. The Hon'ble Apex Court, in the judgement delivered in the case of Sushil Kumar Gupta v. Joy
Shankar Bhattacharjee [AIR 1971 Supreme Court 1543], has held as under :
"In the last submission the counsel made a grievance against the joint trial of several accused
persons on several items of embezzlement. According to him there was a misjoinder of charges
which vitiated the trial. In our opinion, charges under Section 408 and Section 477A, Indian
Penal Code, could, in the circumstances of this case, be tried together and the joint trial of all
the accused was proper and lawful. Our attention was not drawn to any provision of law
against the legality of the joint trial. In any event no failure of justice in consequence of the
joinder of charges was pointed out with the result that the question of misjoinder of charges
must be held to be of little consequence at the stage of appeal."
14. The next contention of the present petitioner is that Scheme of Sections 408 and 409 Indian
Penal Code goes to show that distinct offences have been provided respectively for the clerks or
servants and for the bankers and the present petitioner has been charged for the offence under
Section 409 Indian Penal Code as he is a banker, but at the same time, he has been convicted for
the offence under Section 477A IPC, where bankers have not been included in the description of
offence under Section 477A Indian Penal Code and conviction under Sections 477A and 409 Indian
Penal Code cannot go hand to hand.
15. The contention of the learned Public Prosecutor is that this submission is misconceived and the
present petitioner has been charged for the offence under Section 409 Indian Penal Code as he was

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Submitted By: Adv. Nilesh C Ojha
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the public servant as he was the Postal Assistant in Ramgarh Market Post Office at the relevant
time.
16. The present petitioner has been charged for the offence under Section 409 Indian Penal Code as
he was public servant at the relevant time being a Postal Assistant and the contention of the
present petitioner that he was a banker is misplaced. The present petitioner has not been charged
as a banker and law relied by the present petitioner delivered in the judgement of Gopesh
Chandra Pal & Anr. v. Nirmal Kumar Das Gupta [AIR 1950 Calcutta 57], wherein it has been
held that the persons working in a bank are nor bankers. Looking at the above, this contention of
the present petitioner is not acceptable.
17. The other contention of the present petitioner is that no separate charge of forgery has been
alleged against him and in absence of charge of forgery, conviction under Section 477A Indian
Penal Code cannot be sustained. Section 477A Indian Penal Code reads as under:-
"477A. Falsification of accounts. Who ever, being a clerk, officer or servant, or employed or
acting in the capacity of clerk, officer or servant, will fully, and with intent to defraud,
destroys, alters, mutilates or falsifies any book, electronic record, paper, writing. valuable
security or account which belongs to or is in the possession of his employer, or has been
received by him for or on behalf of his employer, or will fully, and with intent to defraud,
makes or abets the making of any false entry in, or omits or alters or abets the omission or
alteration of any material particular from or in, any such book, electronic record, paper,
writing, valuable security or account, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
Explanation - It shall be sufficient in any charge under this section to allege a general intent to
defraud without naming any particular person intended to be defrauded or specifying any
particular sum of money intended to be the subject of the fraud or any particular day on
which the offence was committed.-
18. A bare perusal of the above provision goes to show that if a servant (including public servant) in
that capacity, with intent to defraud or falsify any accounts makes any false entry, he will be guilty
for the above charge. The facts, which are found to be proved against the present petitioner by
both the courts below, are that the present petitioner entered the deposits in the pass-book of
relevant depositors but had not entered the amount in the accounts books of the post office. It
clearly shows that the present petitioner has not done the entries, which he ought to have made.
This is falsification of accounts, whether by act or by omission. It was further proved before the
courts below that the present petitioner withdrawn the amount by forged means. He has also
falsified the account books and further he has not entered some amounts on the date of receipt.
Thus, he had falsified the accounts by acts and omissions both ways and the present petitioner has
rightly been held guilty for the offence under Section 477A IPC.
19. The next contention of the present petitioner is that offence against the present petitioner is of
fabricating the documents but no hand-writing analysis report has been placed on record.
20. The contention of the learned Public Prosecutor is that the accused-petitioner himself has
refused to give handwriting and hence he cannot object that expert analysis report has not been
placed on record.
21. Learned counsel for the petitioner, and the learned Public Prosecutor both have drawn my
attention towards the application Ex.P/5, which was sent to the present petitioner to get himself

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present before the SDM on a specific date and time to give samples of handwriting but the present
petitioner denied and did not appear on that day and he has claimed that he will give his hand-
writing before the Court.
22. The contention of the present petitioner is that in spite of his refusal, the prosecution should
have filed an application under Section 73 of the Evidence Act before the trial court to get his hand-
writing and signatures taken and the same should have been analysed by the expert. An important
evidence is missing to support the prosecution case and benefit should he extended to the present
petitioner.
23. Counsel for the petitioner has also placed reliance on Section 73 of the Evidence Act, which gives
a power to the court to direct any person present in the court to write any word or figure for the
purpose to enable the court to compare the word or figure so written with any words or figure
alleged to have been written by such person.
24. There is no doubt about it that under Section 73 of the Evidence Act, a special power has been
given to the concerned court for comparison of the signature, writing with other admitted or proved
document but by virtue of Section 73 of the Evidence Act, the prosecution has not been absolved
from the liability of proving its case regarding forgery of the signatures. The prosecution has amply
proved the fact that the present petitioner falsified the account books. He was posted as Postal
Assistant at the relevant time at Ramgarh Market Post Office. He was only the person in-charge of
that Branch and witnesses have also stated that he was in-charge of the whole affairs to maintain
accounts in that branch, which clearly shows that the present petitioner has made all the entries
and also omitted to make the entries and when prosecution has proved those facts beyond
reasonable doubt, there was no need for the trial court to invoke its power under Section 73 of the
Evidence Act. The present petitioner himself has refused to give hand writing. Ex.P/5 has clearly
shown that the accused has been given an option to be present before the SDM, which he did not
avail. Hence, he could not complaint of the fact that the handwriting analysis report has not been
placed on record.
25. The further contention of the present petitioner is that the allegation against him is that money
deposited in the bank has been misappropriated and relationship between the bank and the
customer is of creditor and debtor and there is no element of trust and when there is no element of
trust between the banker and the creditor, the whole base of the prosecution, which rests, on the
element of trust, demolishes and he has placed reliance on the judgements delivered in the cases of
R.P. Sablok v. Smt. Kaushalya Devi [1982 Cr.L.J. 1342], Santosh Kumar & Others. v. The King
[AIR 1952 Calcutta 193] and Gopesh Chandra Pal & Anr v. Nirmal Kumar Das Gupta [AIR 1950
Calcutta 571.
26. The law, which has been cited by the present petitioner in Gopesh Chandra's case (supra)
clearly states that the person working in the banks are not bankers. Hence, the very basis of the
submission advanced by the present petitioner goes away. The facts of the case also go to show that
the present petitioner was working as public servant.
27. The further contention of the present petitioner is that looking to the facts of the case, the
present petitioner should be convicted for the offence under Section 381 IPC, which deals with the
theft by a servant of property in possession of master. But, here, in the present case, the property
was not in the possession of the master. The money was entrusted to the present petitioner and he
misappropriated the same. Hence, this contention of the present petitioner that he should have
been convicted under Section 381 Indian Penal Code has no legs.

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28. The other contention of the present petitioner is that according to the FIR, the present petitioner
was remained in posted in Ramgarh Market Post Office till 25.05.1984. whereas he has been
charged for the transactions up to June. 1984. The court has given a finding without properly
considering the evidence on record and it cannot be termed as a finding of fact and he has placed
reliance on the judgement delivered in the case of Daungarshi Madanlal Zunzunwala v. M/s.
Deviprasad Omprakash Bajoria & Anr [1985 Cr.L.J. 1943].
29. The contention of the learned Public Prosecutor is that in revision proceedings. finding of fact
cannot be entertained. The contention of the present petitioner is that looking to the above legal
position, this finding cannot be termed as finding of fact. But the impugned judgement goes to show
that it is true that in the FIR, posting period of the petitioner has been shown as 09.06.1983 to
25.05.1984 but PW-7, Ganpat Morya, to whom the charge was given by the present petitioner on
transfer to Ramgarh Shekhawati Post Office, has specifically stated that he took charge from the
present petitioner on 26.06.1984, which fact has not been refuted by any evidence and the present
petitioner has rightly been charged and convicted.
30. The next contention of the present petitioner is that he has been charged for the transactions
when he was not posted at the relevant post office arid by intermingling those charges, he has been
prejudicially affected.
31. But, as stated above, the present petitioner was working in the relevant branch till 26.06.1984.
Hence, there is no misjoinder of charges or illegal intermingling of charges, which caused any
prejudice to the present petitioner.
32. The present petitioner was a public servant at the relevant time. He was entrusted with the
money of the depositors. He has falsified the account books to defraud the depositors and that
account books were in possession of the present petitioner. He acted fraudulently and
misappropriated the money. Thus, the petitioner has rightly been convicted for the offences under
Sections 409 and 477A I.P.C.
33. The last contention of the present petitioner is that he has already deposited the amount, which
has been alleged to be misappropriated by him. The matter is of 1983-84 and having regard to the
nature of the offence and circumstances, the present petitioner should be dealt with under Section
4 of the Probation of Offenders Act.
34. The learned Public Prosecutor has left the matter with the discretion of the court.
35. Bearing in mind that corruption has increased in last decade, it is hardly reasonable to turn
blind eye to it. Therefore, while considering the quantum of sentence to be imposed for the offences
like this, one of the prime consideration should be deterrence. One of the most important way of
keeping the offenders under mental vigil is to maintain deterrence. Any latitude shown to them in
this field would tempt and to make action frivolous. Hence, the courts should not treat the nature
of the offence involving forgery in public documents and misappropriation of public money as
attracting the benevolent provisions of Section 4 of the Probation of Offenders Act.
36. Looking at the above, there is no force in these petitions and the same are hereby dismissed.
The petitioner is on bail. He is directed to surrender before the trial court to serve out rest of the
sentence.
Petitions dismissed.

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