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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

the Government.  During the relevant time, the appellant-

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be withdrawn by joint signatures of beneficiary and V.D.O.

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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

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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

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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

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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.