Sherkhan Vs. State of Maharashtra  INSC 577 (20 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1042 OF 2005
Shabbir Ahmed Sherkhan ....Appellant Versus State of Maharashtra ....Respondent
Dr. ARIJIT PASAYAT,
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.
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
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 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
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.
counsel for the appellant submitted that there is absolutely no men rea
involved. When the appellant came back, he returned the amount which he had
taken. Therefore, there is no scope for any conviction.
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.
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
(Dr. ARIJIT PASAYAT)