Bhagyan Das vs State of Uttarakhand

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 465 OF 2019 (Arising out of SLP(Crl.) No(s).125 of 2017)

BHAGYAN DAS Appellant(s)

VERSUS

THE STATE OF UTTARAKHAND & ANR. Respondent(s)

J U D G M E N T

R. SUBHASH REDDY, J.:

1. Leave granted.

2. This appeal is filed by the sole accused in Criminal

Case No.307 of 2006 on the file of Chief Judicial Magistrate,

Uttarkashi, aggrieved by the judgment dated 21st November 2016

passed in Criminal Revision No.168 of 2009 by the High Court

of Uttarakhand at Nainital.

3. The case in nutshell against the appellant-accused is as

follows.

4. Government granted the finance of Rs.9800/- in the year

1991-92 under the Poor Persons Residential Scheme, among

others, to Smt. Deveshwari Devi. Out of the said amount,

Rs.4600/- were in the form of debt and remaining amount of

Rs.5200/- was in the form of assistance (non-refundable) to

Signature Not Verifiedthe Government. During the relevant time, the appellant- Digitally signed by MAHABIR SINGH Date: 2019.03.14 17:31:47 IST Reason: accused – Bhagyan Das was working as Village Development

Officer (V.D.O). As per the Scheme, the whole amount had to

be withdrawn by joint signatures of beneficiary and V.D.O. 2

It is the case of the prosecution that appellant Bhagyan Das,

misusing his position of a Government servant, procured the

signature of Smt. Deveshwari Devi and misled her and paid

only Rs.4000/- and thus he utilised the rest of the amount

for his personal benefit and gain.

5. Pursuant to a complaint lodged by Smt. Deveshwari Devi

by registering First Information Report and on completion of

investigation, chargesheet was filed against the appellant-

accused in Criminal Case No.307 of 2006 on the file of the

Chief Judicial Magistrate for the offences punishable under

Sections 409 and 420B of the Indian Penal Code (IPC). The

trial court acquitted the accused for offence under Section

409 IPC but convicted him for offence under Section 420 IPC

and sentenced him to undergo two years’ rigorous imprisonment

and also imposed a fine of Rs.2000/-.

6. Aggrieved by the conviction recorded and sentence

imposed, the appellant has preferred Criminal Appeal No.18 of

2009 before the learned Sessions Judge. The learned Sessions

Judge did not interfere with the finding of conviction.

However, he modified the quantum of sentence by reducing it

from two years’ rigorous imprisonment to one year, and

sustained the imposition of fine.

7. Challenging both the judgments, i.e., judgment of the

trial court as modified by the appellate court, the appellant

has filed criminal revision petition in Criminal Revision

No.168 of 2009 before the High Court of Uttarakhand at

Nainital. In the aforesaid Criminal Revision, Compounding 3

Application (CRMA 1937 of 2016) was filed seeking compounding

of the offence, supported by the affidavit of the appellant-

accused – Bhagyan Das and Smt. Deveshwari Devi. Though both

parties have appeared before the High Court in person and

sought compounding of the offence, the High Court, by

recording a finding that, it is not a case which leaves its

effect only on the complainant – Smt. Deveshwari Devi, but to

the society at large, has declined to compound the offence by

order dated 21.11.2016. While rejecting the application for

compounding, the High Court also dismissed the Criminal

Revision itself.

8. We have heard Sri Shyam D. Nandan, learned counsel

appearing for the appellant, and Sri Jatinder Kumar Bhatia,

learned counsel appearing for respondent-State and also

perused the impugned judgment and the entire materials placed

on record.

9. Even in this appeal, it is argued by learned counsel for

the appellant that in view of the provision under Section 320

of the Code of Criminal Procedure, the offence under Section

420 IPC is compoundable with the permission of the court. It

is further argued by learned counsel, that while dismissing

the application for compounding, High Court has dismissed the

Criminal Revision also without considering the various

grounds raised in the Revision Petition. It is further

submitted that the alleged incident was of the year 1991-92,

but the complaint was lodged belatedly on 05th of November

2004. Further it is submitted that appellant is a senior 4

citizen and the High Court has committed error in dismissing

the Criminal Revision without considering the same on merits.

On the other hand, learned counsel appearing for the

State has submitted that, merely because an offence is

compoundable under Section 320 Cr.PC, if the offence for

which the appellant is convicted has its adverse social

impact on the society, it need not be compounded. It is

further submitted that as much as Criminal Revision is also

dismissed by the High Court, no case is made out in this

appeal to interfere with the conviction recorded and sentence

imposed on the appellant.

10. Having heard the learned counsel on both sides we have

perused the impugned judgment and also other material placed

on record. It was the case of the prosecution that in the

beneficial scheme introduced for poor persons under

residential scheme an amount of Rs.9800/- was sanctioned

during the year 1991-92 to the complainant. It is the

specific case of the complainant that though she was to be

paid entire Rs.9800/-, but appellant misled her and procured

her signature and made payment of only Rs.4000/- and he has

utilised rest of the amount for himself for his personal

benefit and gain. Merely because an offence is compoundable

under Section 320 Cr.PC, still discretion can be exercised by

the court having regard to nature of offence, as such it is

rightly held in the impugned judgment that as the offence for

which appellant was convicted and sentenced, it will have its

own effect on the society at large. In view of the reasons 5

recorded in the impugned order rejecting the application for

compounding, it cannot be said that the High Court has

committed any error in not accepting the application filed

for compounding the offence.

11. At the same time it is to be noticed that alleged

incident was of the year 1991-92 and complaint was lodged

belatedly on 05th of November 2004, nearly 12 years after

occurrence of incident. Having regard to facts and

circumstances of the case and considering the age of the

appellant, we are of the considered view that while

confirming the conviction recorded by the courts below, it is

a fit case to modify the sentence imposed on the appellant

for the period already undergone. Ordered accordingly.

Further, we affirm the amount of fine imposed on the

appellant.

12. For the aforesaid reasons, this appeal is partly

allowed, by modifying the sentence imposed on the appellant,

as referred above. The judgment of the trial court, as

confirmed by the appellate court and High Court, stands

modified to the extent indicated above.

........................J. [R. BANUMATHI]

........................J. [R. SUBHASH REDDY]

NEW DELHI, MARCH 11, 2019.