Full Judgment Text
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PETITIONER:
SHRI R.V. LYNGDOH
Vs.
RESPONDENT:
STATE (DELHI) SPL. ESTABLISHMENT
DATE OF JUDGMENT: 04/02/1999
BENCH:
G.T. NANAVATI, & N. SANTOSH HEGDE
JUDGMENT:
NANAVATI.J
This appeal arises out of the judgment and order
passed by the High Court of Gauhati in Criminal Appear No.
32 of 1982. The High Court confirmed the conviction of the
appellant under Section 409 IPC and Section 5(2) read with
Section 5 (1) (C) of the Prevention of Corruption Act, 1947
and dismissed the appeal.
During the period between 6.10.67 and 9.3.70 the
appellant was functioning as a Managing Director of the
Assam Agro Industries Development Corporation Ltd.. It was
alleged that between 26.10.67 and 8.4.68 he misappropriated
Rs. 52,465.37 belonging to the Government as that much cash
was found }ess when he had handed over charge to the
succeeding Managing Director. A complaint in that behalf
was filed on 2.8.71. The appellant had not denied that he
was entrusted with the said amount but his defence was that
it was a newly set up corporation and the staff working
under him was inadequate, new and inexperienced. The
deficit in the cash balance was because of that reason. He
accepted moral responsibility for the deficiency in cash and
paid up that amount on 27.8.71.
The Trial Court did not accept the defence that this
was a case of negligence "in performance of duty and held
that there was unlawful retention of Government money by the
appellant. Taking this view the Trial Court held him liable
under Section 409 IPC and Section 5 (2) read with Section 5
(1) (C) of the Prevention of Corruption Act.
After reappreciating the evidence the High Court also
held that the appellant had retained Rs. 52,465.37 as
alleged. The High Court further held :
"All these circumstances show that appellant
improperly set apart the amount for his own use to the
exclusion of the Cojrporation or dealt with the money of the
Corporation without right as if it was his own money; and
that the appellant dishonestly misappropriated the amount of
Rs. 52,465.37, may be, for a time. "
Shri U.R. Lalit, learned senior counsel appearing for
the appellant stated that as the default committed by the
appellant would technically amount to criminal
misappropriation and also misconduct as contemplated by
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Section 5 (1) (C) of the Prevention of Corruption Act, he
does not want to challenge the conviction of the appellant
for those offences. But he submitted that there was no
evidence to show that the said amount was actually taken
away by the appellant and was utilised by him for his own
purpose. He also submitted that from the material on record
it appears that the office of the Assam Agro Industries
Corporation Ltd was newly set up and the staff employed was
new and inexperenced. He also submitted that over and above
his duties as Managing Director of the Assam Agro
Development Corporation the appellent was also required to
perform other duties. He also submitted that the evidence
does not disclose that it was the duty of the appellant to
keep cash with him though he was required to sign the cash
register and varify correctness of the entries made therein.
On the contrary the evidence discloses that cash used to
remain with clerks and other officers also. He submitted
that in view of these special circumstances lenient view as
regards sentence deserves to be taken.
We have also heard learned counsel for the State. We
find considerable substance in what Mr. Lalit has
submitted. In the above referred facts and circumstances
and the old age of the appellant and his health we are of
the opinion that it would be just and proper if less than
the minimum sentecne is imposed upon the appellant. We are
also of the view that the ends of justice would be met if
the sentence of one year imposed upon the appellant 1s
reduced to the period already undergone. With this
modification in the order of sentence this appeal 1s partly
allowed.