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2001 DIGILAW 14 (JHR)

Krishna Singh v. State Of Bihar

2001-01-10

D.N.PRASAD

body2001
JUDGMENT D.N. Prasad, J. 1. By the Court.--This criminal revision application is directed against the judgment, dated 14.8.1997 passed by the 5th Additional Sessions Judge, Dhan- bad, in Criminal Appeal No. 164 of 1994 affirming the judgment of conviction and sentence, dated 16.9.1994 passed by the judicial Magistrate, 1st Class, Dhanbad, by which the learned trial Court convicted the petitioner under Section 409 of the Indian Penal Code and sentenced him to undergo simple imprisonment for a period of three years. 2. The short case of the prosecution as alleged is that one Ramashray Singh (the complainant) filed a complaint before the Chief Judicial Magistrate, Dhanbad, which was registered as Complaint Case No. 351 of 1988 and it was sent to the police officer for investigation. The police investigated the case and submitted final report showing mistake of fact but the complainant had filed a protest petition which was inquired into under Section 202 of the Code of Criminal Procedure and thereafter, cognizance was taken for the offence under Sections 409 and 420 of the Indian Penal Code. 3. The witnesses were examined in the trial Court. Having heard both the sides and perusing the evidence on record, the learned trial Court convicted and sentenced the accused /petitioner in the manner as indicated above. The petitioner preferred an appeal before the Sessions Judge, Dhanbad, and the learned Additional Sessions Judge after hearing both the sides dismissed the appeal preferred against the impugned judgment of the trial Court by order, dated 14.8.1997 which is impugned, hence, this revision application. 4. The learned counsel appearing on behalf of the petitioner at the very out- set submitted before me that though the trial Court convicted and sentenced the petitioner under Section 409 of the Indian Penal Code only but there is no evidence or cogent material to constitute the offence under Section 409 of the Indian Penal Code. The Court below did not find the case true under Section 420 of the Indian Penal Code. It is further argued that the whole amount taken in advance of Rs. 2,800/- was already deducted from the salary of the petitioner in the month of August 1987, whereas this case was initiated on the basis of the complaint after one year of the said adjustment, i.e., 11.8.1988. It is further argued that the whole amount taken in advance of Rs. 2,800/- was already deducted from the salary of the petitioner in the month of August 1987, whereas this case was initiated on the basis of the complaint after one year of the said adjustment, i.e., 11.8.1988. It is further argued that actually, the complainant Ramashray Singh was dismissed from service on the report of the petitioner and this false case was filed out of vengeance in order to harass the petitioner though the petitioner was duly promoted in the office as there was no departmental inquiry held against him nor he was found guilty in discharging his duty at any point of time and the police has rightly submitted final report after due investigation. 5. It is further argued that the petitioner never received the said amount being Rs. 1,348.50 paise said to be the hotel charges of Great Eastern Hotel, Calcutta, and admittedly the petitioner had travelled the destination in his official duty. In this connection, learned counsel relied on a decision of the apex Court in the case of Narendra Pratap Narain and another v. State of U.P., AIR 1991 SC 1394 and submitted that no charge under Section 409 of the Indian Penal Code can be sustained if the amount alleged to have been misappropriated has already been deposited before the investigation. 6. On the other hand, the learned Additional Public Prosecutor contended before me that there appears no illegality in the impugned judgment, but in course of argument, he admitted that actually, the advance money of Rs. 2,800/- was recovered from the pay of the petitioner and the petitioner never received the disputed amount of Rs. 1,348.50 paise. 7. Obviously, the trial Court did not find the case true for the offence under Section 420 of the Indian Penal Code and the petitioner was acquitted for the said offence. It is further evident that the case was earlier investigated by the police but final report was submitted showing mistake of fact and the instant case was initiated on the basis of the protest petition filed by the complainant. No doubt, TA Bill was submitted by the petitioner showing the hotel charges amounting to Rs. 1,348.50 paise but admittedly, the advance taken by the petitioner amounting to Rs. 2,800/- was already recovered and deducted from the salary of the month of August 1987. No doubt, TA Bill was submitted by the petitioner showing the hotel charges amounting to Rs. 1,348.50 paise but admittedly, the advance taken by the petitioner amounting to Rs. 2,800/- was already recovered and deducted from the salary of the month of August 1987. This fact has also been admitted by PW 1, who was the Accounts Officer in the PDIL at the relevant time (vide para 35). 8. PW 4 is the complainant himself, who admitted that he was dismissed from service in 1978 and the petitioner/ accused is making pairvi against him in the case pending in the High Court and the Tribunal. He further admitted in paragraph 7 that Audit was also made in respect of the income and expenditure but he has not reported about the audit as well as he has not handled any document which has been produced in this case. He further stated that no action was taken against the petitioner by the department. According to him, the petitioner was promoted in the year 1988 to the post of the Deputy General Manager. He further stated that he had never reported to the Audit Officer against the petitioner. PW 6 claimed in his evidence that hotel charges amounting to Rs. 1,348.50 paise were paid by the department (Calcutta Branch). 9. The petitioner was examined under Section 313 of the Code of Criminal Procedure and he denied the allegations levelled against him. 10. From going through the letter, dated 28.4.1993 (Ext 5), it appears that a sum of Rs. 1,348.50 paise was paid by the Projects and Development India Limited (PDIL), but it is also clear from the TA Bill (Ext. 2) that the evidence taken by the petitioner amounting to Rs. 2,800/- was already deducted from the salary of the petitioner as back as in the month of August 1987. There is no cogent evidence coming forward to show that the petitioner had actually received hotel charges amounting to Rs. 1,348.50 paise. It is also clear that the said amount of advance was already deducted in the month of August, 1987 from the salary of the petitioner whereas the instant case was initiated after one year of the said deduction on the basis of protest-cum-complaint-petition, though the police after investigation did not find the case true and the final report was submitted showing mistake of fact. 11. 11. The appellate Court dismissed the appeal mainly on the ground that the petitioner did not submit his TA Bill within the prescribed period as stated by PW 1 that it should have been submitted within 15 days, but at the same time, the appellate Court also held that there is no paper brought on the record to suggest the manner in which the accused/petitioner was required to submit TA Bill. It is true that the Advance amounting to Rs. 2,800/- was taken in the year 1985 by the petitioner and this amount was deducted from his salary in the month of August 1987. It further appears that TA Bill was also submitted by the petitioner in 1987 being Ext. 2. 12. I have already discussed above that there is nothing on the record to show that the accused/petitioner had ever received the amount of Rs. 1,348.50 paise from his department, i.e., PDIL, Sindri. It may be noted here that there is an endorsement in the TA Bill (Ext. 2) on the back that the advance drawn to Rs. 2,800/- for such tour has already been deducted in full from the salary of the petitioner in the month of August 1987. Thus, in this way, the whole prosecution case becomes suspicious and doubtful for which the accused- petitioner is entitled for the benefit of doubts. 13. Having regard to the above facts and circumstances coupled with the evidence on record, I find that the prosecution has failed to establish the charge against the accused/petitioner beyond all reasonable doubts as required under the law and as such, he is entitled for the benefit of doubts. 14. In the result, I find merit in the criminal revision application which is accordingly aliowed. The judgment of the appellate Court as well as of the trial Court is, hereby, set aside and he is acquitted of the charge. The petitioner is on bail. He is discharged from the liability of his bail-bonds. 15. Revision application allowed.