NARINDRA KUMAR JAINversusTHE STATE OF MADHYA PRADESH

                     NARINDRA KUMAR JAIN                                         A
                               v.
                 THE STATE OF MADHYA PRADESH

                               MAY 10, 1996

             [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                              B

       Indian Penal Code, 1860:

         S.40!}-Accused posted as Manager of rice mi!ls-1500 quintals of
  paddy found short in the stock-Accused prosecuted under ss.409 and             C
  42(}-Acquittal by trial Court-High Court recording conviction u/s. 409 and
  imposing sentence to undergo imprisonment till the rising of the Court-Held
  the evidence clearly established that accused has failed to account for 1500
· quintals of paddy entrusted to him-Conviction u/s.409 is well jus-
  tified-Though sentence imposed by High Court was inadequate, but at this
  distance of time it will not be necessary to give notice for enhancement of    D
 sentence.

        CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
· 678 of 1996.

      From the Judgment and Order dated 14/15-10-86 of the Madhya                E
 Pradesh High Court in Crl. A. No. 1394/93.

       S.S. Khanduja, B.K. Satija and Y.P. Dhingra, for the Appellants.

       K.N. Shukla, Amitabh Verma and Uma Nath for the Respondents.
                                                                                 F
       The following Order of the Court was delivered :

       Leave granted.

      This appeal by special leave arises from the judgment of the Division
Bench of the Madhya Pradesh High Court made in criminal Appeal No.               G
1394 on October 15, 1986. The Magistrate has acquitted the appellant of
the charges under Sections 420 and 409 IPC and other offences but on
appeal the High Court convicted the appellant for an offence under Section
409 !PC and sentenced him to undergo imprisonment till the rising of the
Court, and a fine of Rs. 500. In default of the payment of the fine, he was      H
                                    839
    840                   SUPREME COURT REPORTS I1996J SUPP. 2 S.C.R.

A   directed to undergo six months' rigorous imprisonment. Since the learned
    counsel for the appellant had raised a question whether the deficiency is
    within 5% of the total quantity and since the Court had not gone into that
    question, we directed the State to produce the entire record. Pursuant
    thereto, the evidence has been made part of the record and we have
    carefully scanned the evidence.
B
          The charge against the appellant is that he was posted as Manager
    of Kisan Rice Mills, Sarngarth between .January 29, 1968 to October 30,
    1973. During the said period, while he was in custody and management of
    the huge stocks of paddy entrusted to him, it was found that 1,500 quintals
C   paddy was unaccounted for. Consequently, the charge came to be framed
    against him in the Court of the Chief Judicial Magistrate for the aforesaid
    offences. As stated earlier, the Magistrate acquitted him of the charges but
    the High Court convicted him for the offences under Section 409 !PC.
    After elaborate consideration of the evidence, the High Court has recorded
    a.s·under:
D
            !Tin our opinion the evidence discussed above clearly establishes
            that 1,500 qtls. of paddy was found short in the stock which was
            verified in the presence of the accused. It is true that only 5% of
            bags were weighed out of the total quantity present. That, however,
E           has been the matter employed and the accused never raised any .
            objection to it. In any case, the accused has admitted the shortage
            vide Ex.p-13 and his explanation have been that it was due to the
            fact of the paddy drying. The documents proved and the oral
            evidence dbcloses that he had made false entries and showed a
            false transfer of this quantity of paddy to Baramkela society. In
F
            our opinion, the evidence establishes beyond doubt that the ac-
            cused had misappropriated 1500 quintals of paddy entrusted to
            him."

           This finding of the High Court gets amply support from the evidence
G   of the witnesses. We are totally in agreement with the said finding. The
    witnesses are disinterested official witnesses. They have no axe to grind
    ag'ainst the appellant. Pw-1 has explained that he had physically got the
    stock verified every year and noted the deficiency. He also stated that it
    was done in the presence of the appellant-accused. PW-2 also has spoken
H   with reference to the record of the maintenance and he was in custody of
                                   N.K.JA!Nv. STATE                            841

        the record thereof. Under these circumstances, the evidence clearly estab-    A
        lishes that the appellant has failed lo account for 1,500 quintals of paddy
        entrusted lo him. Therefore, the conviction of the appellant under Section
        409 is well justified. Though we find that the sentence imposed by the High
        Court was inadequate but at this distance of time, it will not be necessary
        to give any notice for the enhancement of the sentence.
                                                                                      B
               The appeal is accordingly dismissed.

        R.P.                                                    Appeal dismissed.

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