REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.1042  OF 2005

Shabbir Ahmed Sherkhan ….Appellant

Versus

State of Maharashtra ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the order of a learned Single Judge of

the Bombay High Court in Criminal Revision Application No. 14 of 2005.

The appellant was convicted for offence punishable under Section 409 of

the  Indian  Penal  Code,  1860  (in  short  the  ‘IPC’)  and  was  sentenced  to

undergo six months’ rigorous imprisonment and to pay a fine of Rs.2,000/-

with default stipulation.

2. Background facts in a nutshell are as follows:

The appellant was on leave between 5.6.1998 to 14.6.1998 which was

duly sanctioned by the department.

On 14.7.1998 a First  Information Report  (in  short  the ‘FIR’)   was

registered  on  a  written  complaint  under  Section  409  IPC  against  the

appellant wherein it  was stated that a Dog Squad Team consisting of the

appellant as well as three other police officials of Thane Police Station were

required to bring the dogs for training to be started from 5.6.1998 and for

the  said  purpose,  the  D.S.P.,  Thane,  Rural  by  his  order  dated  3.6.98

sanctioned  T.A./D.A.  to  the  handlers  of  dogs  and  that  on  4.6.98  the

appellant  had taken a cash amount of Rs. 12,000/- towards the Traveling

Allowance  from  the  Police  Cashier  for  himself  and  on  behalf  of  the

remaining handlers of dogs and that he did not make the payment to the

concerned Police Officials and instead he went to his native place and did

not attend the training at Pune and through out the period till 14.7.98 he was

absent from his duties. The appellant was arrested on the same day and after

investigation  a charge sheet was filed and the charges were framed by the

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Learned  Chief  Judicial  Magistrate,  Thane  against  the  appellant  under

Section 409 IPC.

On  14.1.2004  the  Learned  Chief  Judicial  Magistrate,  Thane,

accepting on the case of the prosecution and depositions of the prosecution

witnesses,  held  the  Petitioner  guilty  for  the  offence  punishable  under

Section 409 IPC and sentenced him for 6 months  rigorous imprisonment

and a fine of Rs.2,000/ was also imposed, with default stipulation.

On  8.12.2004  the  appellant  filed  a  Criminal  Appeal  No.9/2004

against  the  judgment  and  order  of  the  trial  court  convicting  him.   The

learned  Appellate  Court  by  its  judgment  and  order  dated  8.12.2004

dismissed the appeal of the appellant by confirming the order of conviction

and sentence passed by the trial court.

On 8.2.2005 the appellant filed a Criminal Revision Application No.

14 of 2005 which by judgment and order dated. 8.2.2005 was dismissed.

3. Learned counsel for the appellant submitted that there is absolutely

no  mens  rea  involved.  When  the  appellant  came  back,  he  returned  the

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amount  which  he  had  taken.   Therefore,  there  is  no  scope  for  any

conviction.

4. Learned counsel for the respondent on the other hand submitted that

no  leave  was  sanctioned.   The  appellant  unauthorisedly  left  the  head

quarters and had taken the money which was to be spent  for a particular

purpose.

5. It appears that before the order of the High Court the only plea taken

was that a lenient approach should be adopted.  The High Court rejected the

plea holding that the courts have already taken lenient view of the matter.  It

appears that the appellant has already served out the sentence.  Admittedly

the appellant  had  received the money and was absent  without  any leave

being sanctioned.  There is no dispute that the appellant had received the

money for a particular purpose. The appellant had not disputed that he had

received the money for a particular purpose and that he had not made the

payment  and  had  remained  absent.  That  being  so  there  is  no  scope  for

interference in this appeal which is accordingly dismissed.

……..……………………….…J. (Dr. ARIJIT PASAYAT)

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……..………..…………………J. (LOKESHWAR SINGH PANTA)

……………………………..…..J (P. SATHASIVAM)

New Delhi, March 20, 2009

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