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2001 DIGILAW 1034 (PAT)

Ram Chandra Rai v. State Of Bihar

2001-11-13

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This revision is directed against the judgment dated 26.2.2000 passed by Sessions Judge. Darbhanga, in Cr. Appeal No. 48/98 confirming the judgment dated 29.5.1998 passed, by Judicial Magistrate. 1st Class. Darbhanga, in G.R. Case No. 748/84. Tr. No. 18/98. The revisionist was convicted under Sec. 409, IPC and sentenced to undergo rigorous imprisonment for three years. He was also convicted under Sec. 420, IPC and sentenced to undergo rigorous imprisonment for two years. The sentences were directed to run concurrently. The appellate court upheld the entire order of conviction and sentence hence this revision. 2. The relevant facts of this case are that the revisionist was informant of the aforesaid case in the trial Court and the case was initiated on the report of the District Animal Husbandry Officer alleging therein that the revisionist was an Accountant in his office and he was messenger of bills to the Treasury. Six bills were presented to the Treasury on 21.3.1984 by the revisionist. Five bills were returned to the revisionist on 23.3.1984. The revisionist encashed five bills, but one of the bills bearing No. 258/C-83-84 was not returned to him by the Bill-Clerk of the Treasury. Then he made further enquiry and learnt that this bill was encashed from the Treasury on 22.3.1984 itself. Then the District- Animal Husbandry Officer made a written report to the Officer-in-Charge (Ext. 4/2) on the basis of which FIR was drawn up and after investigation, charge-sheet etc. was filed. However, after investigation the police chargesheeted the revisionist himself and on trial he was convicted by the trial Court. 3. It was submitted before me by the revisionists lawyer that the messenger book on the basis of which bills are presented before the Treasury was not brought on the record and hence it was not proved that all the six bills were returned to the revisionist and he by withdrawing the cash on the bill in question, misappropriated the amount. The witnesses examined failed to say that the revisionist had received back the bill, in question, from the treasury which he personally encashed and misappropriated the amount. 4. I find that the learned trial Court noted the, fact that advice register which was exhibited in the trail court, in which the signature of the Treasury Officer and the entry regarding all the six bills were contained (Ext. 4. I find that the learned trial Court noted the, fact that advice register which was exhibited in the trail court, in which the signature of the Treasury Officer and the entry regarding all the six bills were contained (Ext. A), indicated that the Treasury Officer signed on the advice list on 22.3.1984, but the memo regarding sending of the advice of the concerned bills mentioned the date 21.3.1984. The trial Court had taken note of the contradiction between the forwarding memo and the signature of the Treasury Officer, but he opined that since the memo was dated 21.3.1984, perhaps, the advice was sent to the Treasury on 21.3.1984 itself. Before I comment upon this opinion of the trial Court, I would like to refer to the procedure of presentation of bills, the passing of the same in the treasury and then the return of the same to the messenger of a particular office, which sends the bills to treasury. In this connection, PW 2 was examined and he was the Bill-clerk of the Darbhanga treasury during the relevant period. This witnesses deposed that when bills are presented before the treasury, the Bill clerk received the bills. The bills after being dealt with by the Bill Clerk passes through the Accountant and the Treasury Head Clerk etc. and then after processing through various officials and after preparation of advice slip and entry of the advice slip into the advice register, the advice register is put up before the Treasury Officer for signature. One copy of the advice slip is sent to the concerned Bank and the other copy is retained in the treasury. Finally, the bill is returned to the messenger who had presented the bills into the treasury and. thereafter, bills are encashed by the messenger. PW 2 had deposed that he had received six bills on 21.3.1984 and these bills have been entered in the advice register (Ext. A). This witness further deposed that after passing of the bill he had returned the same to the accusedrevisionist on 21.3.1984 itself. Whether this statement of PW 2 is to be relied upon was the moot question. There is no case regarding five of the bills out of the six bills presented to PW 2 who was the dealing assistant of the bills of the department of Animal Husbandry during the relevant period. Whether this statement of PW 2 is to be relied upon was the moot question. There is no case regarding five of the bills out of the six bills presented to PW 2 who was the dealing assistant of the bills of the department of Animal Husbandry during the relevant period. It is only the 6th bill, the number of which has been already referred above, the amount of which was allegedly misappropriated. It is clear from the evidence of PW 2 that after advice slip is prepared. it is entered in the advice register, the register is put up before the treasury officer for signature and only thereafter the bills are returned. Ext. A clearly shows that the Treasury Officer signed the advice register on 22.3.1984 against all the six bills presented on 21.3.1984 to PW 2 from the Animal Husbandry department. In such a circumstance, I fail to understand how the evidence of PW 2 can be relied upon in support of the fact that all the bills were returned to the revisionist on 21.3.1984 itself. The opinion of the trial Court that since the memo of sending the advice slip to the Bank (31) is dated 21.3.1984, it would indicate that the bills were returned to the revisionist on 21.3.1984 is neither here nor there. This opinion of the trial Court appears to be nothing short of a preposterous opinion. Bills cannot be encashed by anybody unless advice is sent to the Bank and advice cannot be sent to the Bank unless the Treasury Officer signs on the advice slip and the advice register. So, the assertion of PW 2 that he .had returned all the six bills to the accused-revisionist on 21.3.1984, itself appears to be a mysterious statement and it may give some inkling towards his own guilty conscience. 5. Certain Bank Officials were also examined, but none of the Bank Officials could say that the man standing in dock was the person who withdrew the amount of the bill, in question, on 22.3.1984. The Bank Officials simply said that they compared the signature of the messenger on the bill and passed the bill gave token to the messenger and after obtaining the signature made the payment. The Bank Officials simply said that they compared the signature of the messenger on the bill and passed the bill gave token to the messenger and after obtaining the signature made the payment. I have already said above that none of the Officials of the Bank could make a positive and direct statement that the man standing in dock (the accused-revisionist) was the person who had withdrawn the amount of bill. So, the oral evidence regarding the withdrawal of the amount of the bill in question by the accused was deficient. In such a circumstance, the signature of the admitted messenger of the bills of Animal Husbandry Officer had- to be compared with the alleged purported signature on the bill in the name of the accused-revisionist. This could be done only by an expert and admittedly no expert was examined. The I.O. appears to have bungled with the investigation and no attempt was made by the police to find out the real culprit and to fix responsibility upon the person who withdrew the amount of the bill, in question, on 22.3.1984 itself. The bill which was exhibited in court contained the admitted signature of the accused revisionist which was well attested by his drawing officer who was the District Animal Husbandry Officer. The bill was exhibited as Ext. 1. The alleged purported signature of Ram Chandra Rai dated 22.3.1984 was exhibited as Ext. 3. I find that the purported double signature of Ram Chandra Rai does not tally with his attested signature on the left side of the bill in all respect to the very naked eyes. It was therefore incumbent on the part of the investigating agency to obtain the experts opinion. The investigating agency has, therefore, conducted the investigation in a slipshod manner and he has not attempted to fix liability of withdrawing the amount of the concerned bill on the real person. Under the circumstances of the case, the Bill Clerk of the Treasury and Bank Officials, who passed the bill into the Bank by comparing the admitted signature with the disputed signatures, should have been examined by the police and their specimen signatures should have been obtained in order to verify the genuineness of the disputed signatures and thereafter the investigating agency ought to have brought to book the real culprit. No attempt was made in this direction and therefore, it is apparent that the police officer who conducted investigation shirked his responsibility and did not try to find out the actual culprit and perhaps, a scapegoat was prosecuted just by way of filling up the lacuna in the investigation. In this connection, evidence of the Head Clerk-cum Accountant, who was examined as PW 4, is relevant to refer. This PW has stated at paragraph 6 of his evidence that on the concerned bill for an amount of Rs. 41,362.85 there was no signature of himself at any place. He had earlier, at paragraph 5 said that when a bill is presented in the treasury to the bill clerk the latter passes it and sends it to him (this witness). The bill, then is checked by this witness, the Accountant, and then after signing the same, he sends it to Treasury Officer, after passing of the bill by the Treasury Officer it is again sent to the dealing assistant. Subsequently, the dealing assistant prepares advice list and. sends it to the Accountant along with advice list. Then this Accountant sends the bill again after checking etc. to the Treasury Officer. The aforesaid process shows that the particular bill has to pass through the Accountant twice and it must bear his signature but when this witness said at paragraph 6 that the bill in question, did not bear his signature, it indicates that there was something fishy on the part of the Bill Clerk in not sending the bill, in question, to the Accountant. This circumstance will also indicate that the bill in question, was not properly passed nor it was returned to the accused-revisionist. So, the chance of this bill being encashed from the treasury by someone else other than the accused-revisionist was very much there. In this circumstance also verification of the purported signature of Ram Chandra Rai on the bill in token of the receipt of the bill was necessary and this was not done by the investigating agency, The messenger book which was also the only document to show that the bill in question, was returned to the accused-revisionist was not brought on the receipt at the case. The judgment of the trial Court shows that requisitions were sent from the court, but it was returned with the endorsement that the concerned register was sent to the court of CJM. but this register was not traceable in the court of CJM. PW 2 said that when bills are returned, no paper or register is kept in the treasury to show that bills have been returned. This statement of PW 2 also does not appear to be convincing. In all circumstances, therefore, the evidences on record did not prove that the controversial bill in question, was returned to the accused-revisionist, so much so that he had the opportunity to withdraw the amount from the Bank on the basis of this bill. Except PW 2 whose evidence has become suspect, there was no either oral or documentary, evidence, to show that the bill, in question, was returned to the accused revisionist. The evidence of PW 2 was unreliable in view of the fact that his claim was that the bill was returned to the revisionist on 21.3.1984 itself, whereas the procedure for returning the bill is that it would be returned only after signature of the T.O. in the advice register. Admittedly, the advice register was signed by the T.O. on 22-3-1984. So, the evidence of PW 2 was not to be relied upon. 6. As a result of the aforesaid discussion upon the evidence on record, it is apparent that the order of conviction recorded by the two lower Courts was not based on evidence on record and, therefore, the orders of conviction are suffering from illegality and irregularity both. So, the judgment passed by the two lower courts was not legally warranted by evidence on record. So, there is no alternative before this Court but to interfere with the findings of the two lower Courts. 7. In the result, this revision is allowed and the order of conviction and sentence recorded by the two lower Courts are set aside. The revisionist shall stand acquitted and discharged from his bail bonds.