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2004 DIGILAW 504 (GAU)

Pradip Kr. Roy v. Ghulam Rabbani

2004-09-01

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. By the impugned order, dated 4.09.1997, passed in Complaint Case No. 1258C/1995, the learned Chief Judicial Magistrate, Kamrup, Guwahati, has discharged the three accused-opposite party herein, namely, 1. Sri Pradip Kr. Roy, 2. Sri Bardhan Chandra Naga and 3. Sri Arijit Dutta of the offences allegedly committed by them Under Sections 408 / 420 / 34 IPC. 2. The case of the complainant, as unfolded at the trail, may in brief, be stated as follows:- M/s. PK Trading is a partnership firm, which has authorised the complainant, Sri PR Roy, to file a complaint on behalf of the firm on the strength of a power of attorney executed by the firm. The three accused persons, namely, 1. Sri Pradip Kr. Roy, 2. Sri Bardhan Chandra Nag and 3. Sri Arijit Dutta were employees of the said firm, the accused No. 2 being the Manager of the complainant firm. From M/s Mangilal Sarmah of Boingaigaon, one of the customers of the complainant firm, the accused No. 1, namely, Sri Pradip Kr. Roy, collected, on behalf of the complainant firm, a sum of Rs. 50,000/- in cash, on 10-07-1995, for supply of cement. Out of the amount so collected by the accused No. 1, the accused No. 1 handed over, on the instructions of the accused No. 2, a sum of Rs. 15,000/- to accused No. 3, received an acknowledgement in respect of receipt of the said amount and kept the same in the office file of the complainant firm. On the instructions of the accused No. 2, the accused No. 1 retained the balance amount of Rs. 35,000/- for office expenses. On coming to know that the accused persons, despite having received the said sum of Rs. 50,000/- from M/s Mangilal Sarmah, had not deposit the said sum with the complainant firm and had also not reflected entry thereof in the relevant books of account of the complainant firm, the complainant firm issued a notice addressed to the accused No. 1, who, in turn, sent, on 1-02-1996, a reply (Ext.2) admitting the fact that on 10-07-1995, he had collected Rs. 50,000/-from M/s Mangilal Sarmah on the instructions of the accused No. 2 and when he had brought the money to the office, the accused No. 2 had instructed the accused No. to hand over, out of the said sum of Rs. 50,000/-, a sum of Rs. 50,000/-from M/s Mangilal Sarmah on the instructions of the accused No. 2 and when he had brought the money to the office, the accused No. 2 had instructed the accused No. to hand over, out of the said sum of Rs. 50,000/-, a sum of Rs. 15,000/- to accused No. 3 and accordingly, the accused No. 1 had handed over Rs. 15,000/- to the accused No. 3 and obtained receipt in acknowledgement of the said amount by the accused No. 3 and kept the said receipt in the file of the complainant firm. In his reply aforementioned, the accused No. 1 also claimed that he had retained the remaining amount of Rs. 35,000/- as per the instructions of accused No. 2, but as the office was closed on 16-08-1995 and he had not received his salary, house rent, etc., since June, 1995, he adjusted the same against his dues. After receiving the reply, dated 01-06-1996, the complainant firm instituted the complaint aforementioned. 3. During trial, the complainant examined three witnesses including the complainant, Sri PK Roy, who held the power of attorney on behalf of the complainant firm. After recording the evidence before charge, the learned trial Court passed the impugned order discharging the accused-opposite party. 4. I have heard Mr. D. Talukdar, learned counsel for the complainant-petitioner, and Mr. S. Chakraborty, learned counsel for the accused-opposite party Nos. 1 and 3. 5. It may also be noted that though the name of the accused No. 2 was impleaded as opposite party No. 2 in the present revision by the petitioner, the same was struck out by order, dated 16-02-2000, passed by this Court as noticed could not be served upon the opposite party No. 2. 6. Situated thus, this Court is, now, required to determine if the discharge of the accused-opposite party Nos. 1 and 3, is the face of the evidence adduced by the complainant, is legally sustainable. 7. While dealing with the above aspect of the matter, it is pertinent to note that the fact that the contents of the complaint disclose commission of offences Under Sections 409 / 420 / 34 IPC is not really in dispute. The learned trial Court accordingly proceeded with the case by following the procedure prescribed for holding the trial of warrant case instituted otherwise than on complaint. The learned trial Court accordingly proceeded with the case by following the procedure prescribed for holding the trial of warrant case instituted otherwise than on complaint. Sub-section (1) of Section 245 makes it clear that if, after taking the evidence, which may be adduced by the complainant, the Magistrate considers, for the reasons to be recorded, that no case against the accused is made out which, if unrebutted, will warrant conviction, the Magistrate shall discharge him. 8. In the light of the provisions of Section 245(1) Cr.P.C, the learned trial Court was required to determine as to whether the evidence, if remained unrebutted, would have warranted conviction of the accused-opposite party Nos. 1 and 3. 9. The question, therefore, is this : Whether on the basis of the evidence on record, charge against both or any of the two accused-opposite party Nos. 1 and 3 could have been framed in the present case? 10. While dealing with the above question, it is imperative to note that the complainant could not adduce any evidence, direct or indirect, showing that the accused-opposite party No. 3 has misappropriated the amount of Rs. 15,000/-, which is claimed to have been given to the accused No. 3 by the accused No. 1 on the instructions of the accused No. 2. In fact, the only piece of incriminating evidence, which was brought on record against the accused-opposite party No. 3 was that the reply (Ext.2), dated 01-06-1996, aforementioned indicated that the accused No. 1 had handed over, on the instructions of accused No. 3 an amount of Rs. 15,000/-, which the accused No. 1 had collected from M/s Mangilal Sarmah, to the accused No. 3 and obtained acknowledgement of the receipt of payment thereof and kept the receipt in the office file of the complainant firm. The evidence, so adduced, even if remained unrebutted, merely showed that the accused No. 3 had received a sum of Rs. 15,000/- from accused No. 1, on the instruction of the accused No. 2, who was the Manager of the complainant firm. The acknowledgement of the amount, so received by the accused No. 3, belied, in the circumstances indicated hereinbefore, the accusation that the said amount was received by the accused No. 3 dishonestly and/or that the accused No. 3 had misappropriated the said amount of money. The acknowledgement of the amount, so received by the accused No. 3, belied, in the circumstances indicated hereinbefore, the accusation that the said amount was received by the accused No. 3 dishonestly and/or that the accused No. 3 had misappropriated the said amount of money. No case for framing of charge for commission of any offence against the accused No. 3 was, thus, made out. This position could not, in fact, be disputed on behalf of the complainant-petitioner before this court. 11. So far as the accused No. 2 is concerned, since he has not been served with notice and his name has been struck off of the record, the question of interfering with the impugned order so far as the same relates to the discharge of the accused No. 2, as already mentioned hereinabove, does not arise. Turning to the case of the accused-opposite party No. 1, it is of paramount importance to note that the contents of Ext.2 aforementioned had not been challenged at the trial. The contents of the Ext.2 clearly indicate that out of the sum of Rs. 50,000/-, which the accused No. 1 had collected, in his capacity as an employee of the complainant firm, from M/s Mangilal Sarmah for supply of cement, he retained with him, on the instructions of the accused No. 2, an amount of Rs. 35,000/- This amount was entrusted to the accused No. 1 by the accused No. 2, who was, admittedly, the Manager of the complainant firm. The amount, so entrusted to accused No. 1, was, admittedly, not returned to the complainant firm and was retained and utilised by the accused No. 1. The accused No. 1 claims to have used the money against his unpaid dues. Whether the accused No. 1 could have adjusted the said amount of Rs. 35,000/- against his alleged unpaid dues is a question, which can be answered only at the trial Court; but if the evidence on record is left unrebutted, the evidence on record can not be said to be such that it would not warrant conviction of the accused No. 3 for misappropriation of the said amount of Rs. 35,000/- in his capacity as an employee of the complainant firm. Hence, the evidence on record was sufficient to warrant framing of charge against the accused No. 1 Under Section 409 IPC. 35,000/- in his capacity as an employee of the complainant firm. Hence, the evidence on record was sufficient to warrant framing of charge against the accused No. 1 Under Section 409 IPC. To this extent, the impugned order is incorrect, illegal and improper. Such an order will, if allowed to stand good on record, cause serious miscarriage of justice. 12. In the result and for the foregoing reasons, the impugned order is set aside to the extent that the same related to the discharge of the accused-opposite party No. 1 and the learned trial court is hereby directed to proceed with the case and dispose of the same in accordance with law. 13. Before parting with this case, I must hasten to add that the observation made hereinabove with regard to the evidence on record as against the accused-opposite party No. 1 shall not influence the learned trial Court at the time of the determining the guilt or otherwise the accused-opposite party No. 1. 14. Send back the LCR with a copy of this order.