SHABBIR AHMED SHERKHANversusSTATE OF MAHARASHTRA

                          [2009] 4 S.C.R. 782

A                  SHABBIR AHMED SHERKHAN
                                   v
                     STATE OF MAHARASHTRA
                  Criminal Appeal No.1042 of 2005
                          MARCH 20, 2009
B
      (DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                  AND P. SATHASIVAM, JJ)
         Penal Code, 1860:

C         s. 409- Criminal breach of trust by public servant- Police
    official receiving money from department for TA and DA of his
    colleagues - Not giving the money to them and absenting
    himself from duty without any sanctioned leave - Conviction
    and sentence of six months imprisonment - Upheld by
o   appellate court, and High Court in revision - HELD: Admittedly
    accused had received the money for a particular purpose and
    did not hand over the same to persons concerned and, he
    remained absent unauthorisedly -Accused has already served
    the sentence - Order of courts below need no interference.

E       The appellant, a police official, was convicted and
    sentenced to six months imprisonment on the
    accusations that he received Rs.12,0001- from the
    department as TA and DA for his colleagues but did not
    pay the amount to them and unauthorisedly remained
F   absent from duty, stood proved. The appellate court and
    the High Court in revision having upheld order, the
    accused filed the appeal.
         Dismissing the appeal, the Court
G        HELD: The only plea taken on behalf of the accused            >   ...
    before the High Court was that a lenient approach should
    be adopted. The High Court rejected the plea holding that
    the courts below had already taken lenient view of the
    matter. The appellant has served out the sentence.
H
              SHABBIR AHMED SHERKHAN V.                      783
                STATE OF MAHARASHTRA

Admittedly, the appellant had received the money for a A
particular purpose, which he did not fulfil, and remained
absent without any leave being sanctioned. That being
so, there is no scope for interference in the orders of the
court below. [para 5] [ 785-A-C]
    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal                B
No.1042 of 2005
     From the Judgement and Order dated 08.02.2005 of the
Hon'ble High Court of Judicature at Bombay in Criminal
Revision Application No. 14 of -2005.                              c
      lmtiazAhmed, Nagma lmtiaz (for Equity Lex Associates),
for the Appellants.
    Aniruddha P. Mayee, R.K. Adsure, Atul, Vishal, for the
Respondents.
                                                                   D
     The Judgement of the Court was delivered by
     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 E
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.                                      F
     2. Background facts in a nutshell are as follows:
     The appellant was on leave between 5.6.1998to14.6.1998
which was duly sanctioned by the department.
       On 14.7.1998 a First Information Report (in short the 'FIR') G
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, H
    784       SUPREME COURT REPORTS                   [2009] 4 S.C.R.


A   the D.S.P., Thane, Rural by his order dated 3.6.98 sanctioned
    TA.ID.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
B   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
C   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
D   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
E   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
F   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 amount which he had taken. Therefore,
G   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
H   which was to be spent for a particular purpose.
           SHABBIR AHMED SHERKHAN V                         785
   STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J.)

      5. It appears that before the order of the High Court the    A
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        B
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               c
interference in this appeal which is accordingly dismissed.

R.P.                                        Appeal dismissed.