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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.