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2008 DIGILAW 17 (JHR)

Amamath v. State of Jharkhand

2008-01-10

D.K.SINHA

body2008
JUDGMENT DK Sinha, J -The petitioner has preferred this Cr. Revision against the judgment passed by the 4th Additional Sessions Judge, Palamau at Daltonganj in Cr. Appeal No. 41 of 1999 on 30.9.99 whereby and whereunder the judgment of conviction recorded by Shri Sahjanand Sharma, Judicial Magistrate, 1st Class, Latehar against the petitioner for the offence under Section 409 I.P.C. awarding sentence of three years rigorous imprisonment and fine of Rs.5,0001- with default stipulation was affirmed. 2. The prosecution story in short was that on the written report presented by the informant Block Development Officer, Mahuadanr, with reference to the letter No. 564(C) dated 17.7.96 addressed to the Deputy Collector (Establishment) Palamau, a case for the offence under Section 409 I.P.C. was registered against the petitioner by lodging F.I.R. giving rise to Mahuadanr P.S. Case No.29/96 on 10.10.96 for the misappropriation of Government money to the tune of Rs.3,16,753=21paise, allocated for social security pension to the old age persons, but it were never distributed to them as alleged and at the relevant time the petitioner was Anchal Nazir. 3. In course of trial, after the statement of the petitioner was recorded under Section 313 Cr. P.C. on 17.12.98 almost on the same day, a petition was moved on behalf of the prosecution under Section 319 Cr. P.C. to issue summons by transposing the informant Shri Awadhesh Ram B.D.O.-cum-C.O. as accused on the materials collected in course of trial, of petitioner and considering its merit, summons was issued. 4. The judgment passed in the impugned appeal No. 41/99 indicates that the trial of the informant turned accused Awadhesh Ram B.D.O.-cum-C.O., arrayed at later stage was separated and the case of the petitioner being at the fag end of conclusion was decided in his conviction. It was observed by the appellate court that the witnesses produced and examined on behalf of the prosecution were cross-examined at length and that the petitioner was also given opportunity to adduce evidence in his defence. The trial was concluded by deciding the merit of the case within the time frame of eight months as observed in Cr. Misc. No. 4250 of 1998(R) by Ranchi Bench and therefore, there was no occasion to remand the case for re-trial. 5. Mr. The trial was concluded by deciding the merit of the case within the time frame of eight months as observed in Cr. Misc. No. 4250 of 1998(R) by Ranchi Bench and therefore, there was no occasion to remand the case for re-trial. 5. Mr. Prasad, learned Counsel submitted that the petitioner was prosecuted on the basis of an enquiry report of the S.D.O. vide letter No. 564(C) dated 17.7.96 addressed to the Deputy Commissioner (Establishment) and apparently no allegation was made in the written report against the petitioner or the informant B.D.O.-cum-C.O. who was later on arrayed as an accused. Such letter of S.D.O. does not whisper the complicity of the petitioner in any manner rather the complicity of the informant B.D.O., Mahuadanr who had withdrawn Rs.3lakhs allocated for pension to the old people under social security scheme. On the point of law Mr. Prasad assailed the judgment of trial court by submitting that the petitioner's conviction on the evidence of P.W.2 by adducing exculpatory statement who was later on arrayed as an accused under Section 319 Cr. PC., cannot sustain without tendering pardon to the accomplice witness under Section 306 Cr. PC. 6. Mr. Prasad further pointed out that the petitioner was found absent since 16.10.95 and for that an enquiry was conducted by Deputy Collector, Latehar who submitted his report on 11.7.96 but the case was instituted on 10.10.96 without explanation of such inordinate delay. though in the report it was specifically alleged that the amount earmarked for social security pension was withdrawn on 20.10.95 by the Circle Officer, Mahuadanr on 20.10.95 but the amount was not shown to be disbursed in the account book and adverse inference was taken by the authority. Moreover, the prosecution was launched against the petitioner after one year on 10.10.96 for the alleged occurrence of withdrawal on 20.10.95. 7. Mr. Prasad attracted the attention by submitting that none of the beneficiaries of old age pension scheme was produced before the trial court in support of the allegation that the petitioner Anchal Nazir had not paid the pension amount for a particular period. The informant P.W.2 testified by admitting as contained in paragraph 4 under cross-examination that responsibility of distribution of old age pension to the beneficiaries was solely on Anchaladhikari and that he was at the relevant time of withdrawal of Rs.3lakh was Incharge Anchaladhikari (Circle Officer). The informant P.W.2 testified by admitting as contained in paragraph 4 under cross-examination that responsibility of distribution of old age pension to the beneficiaries was solely on Anchaladhikari and that he was at the relevant time of withdrawal of Rs.3lakh was Incharge Anchaladhikari (Circle Officer). He admitted his negligence that he could not gather the information on 20.10.95 after the working hours as to whether old age pensions were distributed or not. The witness further admitted that the petitioner Amarnath, Anchal Nazir was absent from the Anchal Office since 16.10.95 itself. Finally he deposed that he could not collect material against the petitioner in support of the allegation that he misappropriated the public money and that in absence of the petitioner one Prabhu Das Topno was made In-charge of Anchal Nazir of Mahuadanr Circle. Admittedly, according to the learned Counsel, the informant testified that no employee of Mahuadanr Anchal was produced in the trial court to stand as witness in support of alleged charge against the petitioner who could have been the important witness in this case for revealation of truth as to who was the real culprit. As a matter of fact no entry was made in the cash account book and ledger in respect of distribution of old age pension and the informant PW. 2 failed to discharge his responsibility and shifted the criminal liability of misappropriation of huge amount upon the petitioner to the tune of Rs.3lakhs which was withdrawn on 20.10.95 by other than the petitioner and that the petitioner was made the escape goat. 8. The signature of the petitioner on the cheque for withdrawal of the amount was not proved for• want of which the liability of such withdrawal cannot be fastened upon the petitioner. The cash book containing withdrawal or payment was not produced before the trial court so as to attract the charge under Section 409 I.P.C. On the other hand absence of the petitioner much prior to the alleged withdrawal of the huge amount may simply infer the charge of dereliction in duty and not the charge for the offence under Section 409 I.P.C. 9. On the point of law, Mr. On the point of law, Mr. Prasad emphatically submitted that there was no evidence on the record in respect of entrustment of any amount of old age pension scheme to the petitioner and no witness could be able to testify that entrustment of money was made to the petitioner. Mere loss of money, if at all, was not sufficient to constitute criminal breach of trust as held by the Apex Court in “Kailash Kumar Sanwatia vs. State of Bihar and Another, reported in 2003(3) Eastern Criminal Cases 159 (S.C.) [:2003(4) JLJR (SC)171] 10. Section 409 I.P.C., deals with criminal breach of trust by public servant or by banker, merchant or agent, it was held that in order to" bring any application of said provision, entrustment has to be proved with two other ingredients viz.;- (i) the accused, a public servant or banker or agent was entrusted with property of which he is duty bound to account for; and (ii) the accused committed criminal breach of trust. 11. The criminal breach of trust is defined in Section 405 I.P.C. whereas Section 409 is criminal breach of trust by certain category of persons. The ingredients of the offence are;- (i) Entrusting any person with property or with any dominion over property. (ii) The person entrusted dishonestly misappropriated or converted the said property to his own use or wilfully dishonestly disposing of that property. 12. In the present case the courts below failed to take into consideration that the prosecution could not prove the entrustment of any amount to the petitioner and that the amount if so entrusted was misappropriated by him so as to bring him within the mischief of Section 409 I.P.C. The courts below further failed to appreciate that the petitioner was absent from his duty much prior to the alleged date of withdrawal as admitted in the enquiry report of the S.D.O. which was the basis of lodging complaint by the B.D.O.-cum-C.O., and that the said B.D.O-cum-C.O. informant was later on arrayed as accomplice under Section 319 Code of Criminal Procedure. The allegation was specific against the informant about the withdrawal of 3lakhs, earmarked for payment of old age pension, under social security schemes but criminal liability was shifted upon the petitioner without any specific attribution whatsoever and the evidence adduced by the prosecution. 13. The allegation was specific against the informant about the withdrawal of 3lakhs, earmarked for payment of old age pension, under social security schemes but criminal liability was shifted upon the petitioner without any specific attribution whatsoever and the evidence adduced by the prosecution. 13. I further find and observe that the appellate court committed serious illegality in dismissing the appeal in summary manner without adverting to and discussing the evidence on record as the appellate court was required to do so under Section 386 Code of Criminal Procedure. 14. In the circumstances, having heard the learned Counsel for the petitioner and the A.P.P: on behalf of the State, I find and hold that the" judgment of conviction for the charge under Section 409 I.P.C. and order of sentence recorded against the petitioner by the Judicial Magistrate, 1st Class, Latehar in G.R. No.341 of 1998 and affirmed by the 4th Additional Sessions Judge, Palamau at Daltonganj in Criminal Appeal No. 41 of 1999 cannot sustain being not proved and accordingly set aside. Interlocutory Application No. 11363 of 2002 filed under Section 5 of Limitation Act is allowed by condoning the delay. 5. This Criminal Revision is allowed and the petitioner Amarnath is acquitted from the charge under Section 409 I.P.C.