Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 532 (CAL)

Sukumar Das v. Mrityunjoy Ghosh

2007-07-17

JAPAN MUKHERJEE

body2007
Judgment :- (1.) THE hearing arises out of an application under Section 401 read with section 482 of the Code of Criminal Procedure registered as C.R.R. No. 1038 of 2001 and another application under Section 401 read with Section 482 Cr.P.C. registered as C.R.R. No. 855 of 2001. (2.) BOTH the applications have been filed by Shri Sukumar Das. The chief Executive Officer, Kalna Block-ll, Co-operative Agricultural Marketing society Limited and both the applications have been heard together. Both the applications are directed against the order of acquittal passed by the learned Judicial Magistrate. (3.) CASE being C.R.R. No. 855 of 2001 arises out of the order of acquittal passed by the learned Judicial Magistrate in favour of the accused/respondent achintya Kumar Dey in G.R. Case No. 192 of 1982. (4.) THE allegation in that case is that accused was posted as salesman-cum-godown-in-charge at Sanerdanga Co-operative Society. lt was detected on 16. 4. 82 on verification of the stock Register as well as on physical verification of the stock in the godown of the said society that there was shortage of fertilizer worth of Rs. 2 lacs which was misappropriated by the accused and he had also made a confession. Charge under Section 406 I.P.C was framed against the accused and subsequently, the charge was altered to Section 408 I P.C. and the accused was acquitted under Section 248 cr. P.C. (5.) THE State did not prefer any appeal and the de facto complainant preferred this revision against the order of acquittal. (6.) THE prosecution case in G.R. No. 193 of 82 out of which C.R.R. No. 1038 of 2001 arose is that on 16. 4. 82 while accused Mrityunjoy ghosh was serving as an employee of Kalna, Block-ll, Agricultural Co-operative Marketing Society at Nepakuli it was detected on physical verification of the stock that there was a shortage of fertilizer of Rs. 41,268/-in comparison to the stock Register and the same was misappropriated by the accused and he had also made a confession. At first charge under Section 406 I.P.C. was framed and subsequently the said charge was altered to a charge under Section 408 I.P.C. and the accused was acquitted. 41,268/-in comparison to the stock Register and the same was misappropriated by the accused and he had also made a confession. At first charge under Section 406 I.P.C. was framed and subsequently the said charge was altered to a charge under Section 408 I.P.C. and the accused was acquitted. (7.) IN C.R.R. No. 855 of 2001 it has been contended by the learned lawyer for the petitioner that learned Magistrate misappreciated the law and acquitted accused for non-production of the permission of the Registrar of co-operative Societies for launching the prosecution and as this is not a case under the Co-operative Societies Act so the question of obtaining sanction for prosecution of the accused under Sections 406/408 I.P.C does notarise. The question of sanction arises in a case under the penal provision of the Co-operative Societies Act, Moreover, the case was instituted as per the resolution taken by the Managing Committee at its meeting and as such the prior permission of the Registrar of the Co-operative Societies need not be taken. It has further been contended by the learned Counsel for the petitioner that the order of acquittal was passed against the accused without appreciation of the evidence-on-record and confession and the same cannot stand. Learned Counsel for the petitioner has placed his reliance upon the ruling reported in 1998 (2) CLJ at page 355 and also 1998 Calcutta Criminal law Reporter at page 335. (8.) WITH reference to C.R.R. No. 1038 of 2001 it has been contended by the learned Lawyer for the petitioner that learned Magistrate misappreciated the evidence-on-record. The P. Ws proved the factum of entrustment as well as misappropriation and the charge against the accused was fully established by the evidence-of-record. Moreover, the accused made confessional statement and learned Magistrate did not consider the confession in its true perspective. The accused used to sell fertilizers and used to receive sale proceeds from the customers. It sufficiently establishes the case of entrustment. Learned Magistrate wrongly held that in view of the provisions of Clause (d) of Section 142 of the West Bengal Co-operative societies Act which is a special law the prosecution of the accused under the I.P.C. does not arise. There is no bar to prosecute the accused under Indian Penal Code instead of prosecuting him under the West Bengal Co operative Societies Act. There is no bar to prosecute the accused under Indian Penal Code instead of prosecuting him under the West Bengal Co operative Societies Act. The accused made confessional statement and the said statement it can be relied to prove the guilt of the accused. The observation of the learned Magistrate that the Evidence Act says that the confessional statement obtained other than before the Judicial Court is not acceptable in evidence is erroneous conception of law. Apart from judicial confession extra judicial confession can be relied for passing conviction. The prosecution has proved the case to the hilt and learned Magistrate was certainly wrong in acquitting the accused and the order of acquittal has occasioned in failure of justice and the same should be interfered. (9.) IT has been contended by the learned Counsel on behalf of the private respondent in case C.R.R. No. 855 of 2001 that the prosecution case has not been proved, the confessional statement is not legal and the same cannot be relied. High Courts power to set aside the order of acquittal could be sparingly exercised and High Court cannot re-appreciate the evidence. The Revisional Court cannot arrive at a different conclusion on re-appreciating the evidence. (10.) IN the case being C.R.R. No. 1038 of 2001 it has been contended by the learned Lawyers for the accused that the private party has no locus standi to file appeal or revision against acquittal in a case instituted upon a police report. Formal permission of the public prosecutor would not entitle him to such right. (11.) IT has further been contended that in absence of evidence of entrustment to the accused the question of convicting him under Section 408 for criminal breach of trust does not arise and the prosecution has failed to prove the case of entrustment of the property. (12.) IT has been further contended by the learned Lawyer for the opposite party that the extra judicial confession, if any is a weak piece of evidence and it is hardly of any consequence. Moreover, in this case, there is nothing to show that a confession alleged to have been made was voluntary. (12.) IT has been further contended by the learned Lawyer for the opposite party that the extra judicial confession, if any is a weak piece of evidence and it is hardly of any consequence. Moreover, in this case, there is nothing to show that a confession alleged to have been made was voluntary. (13.) ON behalf of the accused in both cases reliance has been placed upon the decision reported in AIR 1987 Supreme Court at page 856, 2004 (13) Supreme Court Cases at page 374, AIR 1986 Supreme Court at page 1721, AIR 1998 Supreme Court at page 990, 2002 Cr. LJ at page 3788, air 1974 Supreme Court at page 388, AIR 1988 Supreme Court at page 1705, air 2007 Supreme Court at page 56 and 2006 (2) CLJ (Cal) at page 158. (14.) LT appears that in both the cases the main allegations are that on physical verification with reference to stock register it was detected that there was shortage of stock of fertilizer and the accused misappropriated the said stock which was found short. In order to prove the case of shortage it was incumbent upon the prosecution to prove what was in stock and what was shortage. To prove that the production and proof of the stock register were a must, but in this case, for the reasons best known to the prosecution the stock register has not been proved. Consequently, in order to prove the case of misappropriation it was incumbent on the part of the prosecution to prove to the hilt that the property i. e. fertilizer was entrusted with the accused but there is no document to prove that entrustment was made to the accused in respect of the fertilizer. The prosecution has relied upon the confession alleged to have been made by the accused. Both the accused had denied such confession. (15.) IN case No. G.R. 192 of 82 from which C.R.R. No. 855 of 2001 arose the alleged confessional statement was made to the Secretary, Kalna block-II Agricultural Cooperative Credit Society who figures as P.W.4, it was suggested to him that such confessional statement was obtained from the accused by putting him in fear and coercion. It was further put to him that no defalcation or appropriation of any money of society in question was made. It was further put to him that no defalcation or appropriation of any money of society in question was made. The said witness says that the accused on being asked for submitting a representation of admitting to have mis-appropriating the difference of stock register and goods in store prayed for easy instalments for paying of the sum. So, it is clear from his admission that the accused did not submit the alleged representation on his own accord but it was submitted on being asked. The said admission surely makes such confession as alleged far from voluntary. (16.) IN case No. G.R. 193 of 82 from which C.R.R. No. 1038 of 2001 arose the alleged confession is addressed to the Secretary, Kalna Block-ll, agricultural Cooperative Marketing Society Limited, but the said Secretary has not been examined in that case. (17.) IN both the cases FIR has not been proved. In both the cases the officer who lodged the FIR has not been examined. There is no dependable evidence that the confession alleged to have been made by the accused in both the cases was voluntary and true. The confession is alleged to have been made before the officer in authority. (18.) IN the ruling reported in AIR 1988 Supreme Court at page 1705 the apex Court accepted the concession of the learned Counsel for the State that extra judicial confession is very weak piece of evidence and is hardly of any consequence. Moreover, the alleged extra judicial confession is retracted confession. There is no corroboration of such extra judicial confession by any materials-on-record proving the guilt of the accused. (19.) I have already observed that the stock register the production and poof of which are a must for proving the story of shortage has not been produced and proved in this case. So, the alleged confession is not corroborated by the best evidence. (20.) IN both the cases in judgment learned Trial Court discussed the evidence. (21.) IT has been laid down in the ruling reported in AIR 1975 Supreme court at page 1854 in the revisional jurisdiction, when invoked by a private complainant against an order of acquittal can be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The revisional jurisdiction cannot be invoked merely because the lower Court has not appreciated the evidence properly. (22.) IN the case reported in AIR 1986 Supreme Court at page 1721 it has also been held that only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power, it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial Court may in the opinion of the High court be wrong, will not justify the setting aside of the order of acquittal and directing a retrial of the accused. (23.) IN the case reported in 2004 (13) Supreme Court Cases at page 374 it has been held that it is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate Court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the Appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower. (24.) UNDER Section 139 (3) of the West Bengal Co-operative Societies act no prosecution shall be instituted under the Act without previous sanction of the Registrar. But the prosecution has been instituted against both the accused not under the provisions of West Bengal Co-operative Societies act, 1983 but under the provisions of Indian Penal Code. So, the question of previous sanction of the Registrar for prosecution does not arise. But the prosecution has been instituted against both the accused not under the provisions of West Bengal Co-operative Societies act, 1983 but under the provisions of Indian Penal Code. So, the question of previous sanction of the Registrar for prosecution does not arise. (25.) IN this case, reference may be made to the decision reported in 1998 (2) CLJ at page 355 where it has been held that the petitioners being officers of the Co-operative Society alleged to have made mis-appropriation and other offences in respect of fund and papers of the Co-operative Society do never come within the protection of Section 197 Cr.P.C. It was further held in that case that G.R. case not having been filed under any provision of the act, the Co-operative Societies Act, the question of prior sanction of the registrar is obviously not required which relates only cases filed under the act and not under I.P.C. (26.) REFERENCE may also be made in the case reported in 1998 Calcutta criminal Law Reporter (Cal) at page 335 where it was held that as the case was filed not under the provision of the Act but under the provision of the Indian Penal Code, the benefit provided under Section 139 (3) of the Act (West Bengal Co-operative Societies Act) cannot be attracted. As the petitioners were not accused under any provision of the Act they are not entitled to the protection under Section 139 (3) of the Act which speaks of prosecution instituted under that Act only, and not any other law of the land. So the question of protection under Section 139 (3) of West Bengal Co-operative societies Act, 1983 and prior sanction of the Registrar for prosecution of the accused under Indian Penal Code does not arise. (27.) LEARNED Magistrate was certainly wrong in holding in G.R. No. 192 of 82 that procedure has not been followed. Registrar Co-operative Society has not come before the Court nor there is scrap of paper to show that registrar Co-operative Society has given prior permission to the institution of the present case but that observation of the learned Magistrate which is erroneous does not establish, that there was miscarriage of justice. Learned magistrate has also appreciated the evidence-on-record and considering the materials-on-record he concluded that the prosecution was not able to prove the case against the accused beyond shadow of reasonable doubt. Learned magistrate has also appreciated the evidence-on-record and considering the materials-on-record he concluded that the prosecution was not able to prove the case against the accused beyond shadow of reasonable doubt. (28.) IT is true that in the case reported in AIR 1998 Supreme Court at page 990 relied by the learned Counsel for the accused that the Apex Court observed that if the Code of Criminal Procedure did not empower a private party to file a revision petition against an order of acquittal passed in a case instituted on a police report. A formal permission of the public prosecutor would not entitle him to do so. A public prosecutor cannot vest a private party with a right which it has not got under the Code. In that case reference has been made to a case reported in AIR 1962 at page 1788 where it has been held that it is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties though the State may not have thought fit to appeal, but this jurisdiction should be exercised by the High Court in exceptional cases, when there is glaring defect in the procedure or there is a manifest error in a point of law and consequently there has been a flagrant miscarriage of justice. (29.) IN this case, there is no glaring defect in procedure or there is no manifest error in a point of law resulting in flagrant miscarriage of justice, there is no violation of fundamental principle of law. So the question of exercising power of revision or the power under Section 482 Cr.P.C. does not arise. (30.) THE alleged mis-appropriation was detected on 16.4.82 we are in the year 2007 so from the date of occurrence period of 25 years has already lapsed and it will be sheer abuse of process and contrary to the principles of speedy justice as guaranteed in Article 21 of the Constitution of India to remand the cases to the learned Trial Court for fresh trial on further evidence. In this regard reference may be made to the ruling reported in AIR 2007 supreme Court at page 56 where it has been held that the purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the Courts and on the prosecution an obligation to proceed with reasonable dispatch. In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Government and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality. In the case before the Apex Court not a single witness was examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant, accused. Apex Court observed that permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. (31.) UNDER the circumstances, there is nothing to interfere with the judgment of acquittal passed by the learned Magistrate in both the cases. Consequently, both the applications must fail. Both the C.R.R. No. 855 of 2001 and C.R.R. No. 1038 of 2001 stand dismissed accordingly. This judgment will govern both the cases.