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2009 DIGILAW 405 (GAU)

Tapan Kumar Saha v. State of Tripura

2009-06-10

C.R.SARMA

body2009
JUDGMENT C.R. Sharma, J. 1. This appeal is directed against the judgment and order dated 13.5.2002 passed by the learned Special Judge, North Tripura, Kailashahar in special case No. 03 of 1991 convicting the appellant Sri Tapan Kumar Saha under Section 5(2)(c) of Prevention of Corruption Act (for short, PC Act), 1947 (since repealed by 1988 Act) and thereby sentencing him to suffer rigorous imprisonment for 4 (four) years and to pay a fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for a further period of six months. Being aggrieved by the said judgment and order of conviction and sentence the appellant has come up with this appeal. 2. I have heard Mr. A.K. Banerjee, learned Counsel for the appellant and Mr. A. Ghosh, learned Additional PP for the State. 3. The prosecuting case, in brief, maybe stated as follows: During the period from 8.4.1982 to 11.3.1983 the department of Animal Husbandry, Government of Tripura received an amount of Rs. 56,000/- under Urban Poultry Scheme. During the said period Mr. Mrinal Kanti Paul was the DDO and Mr. Tapan Kumar Saha i.e. the appellant was the cashier in the office of the Deputy Director, Animal Husbandry, Government of Tripura. Out of the said fund, an amount of Rs. 20,300/- was spent towards implementation of the scheme, leaving a balance of Rs. 35,700/-. For the purpose of depositing the balance amount, who challans were prepared and an amount of Rs. 3,815/- was deposited by a challan, while another amount of Rs. 885/- was deposited by another challan. The said amounts were deposited with the United Bank of India (UBI), Kailashahar Branch. The prosecution case was that the appellant/accused person inserted the figure 13' before the figure 3815' making the amount as Rs. 33,815.00 and figure 1' before the figure 885' making the amount as Rs. 1,885.00 and thereby misappropriated an amount of Rs. 31,000/-. According to the prosecution, during the relevant period, the challans and the cash books were prepared by the appellant in his capacity as cashier. The fact regarding misappropriation of an amount of Rs. 31,000/- was revealed during a vigilance inquiry conducted by Sri Salil Ganguly. 1,885.00 and thereby misappropriated an amount of Rs. 31,000/-. According to the prosecution, during the relevant period, the challans and the cash books were prepared by the appellant in his capacity as cashier. The fact regarding misappropriation of an amount of Rs. 31,000/- was revealed during a vigilance inquiry conducted by Sri Salil Ganguly. The matter was brought to the notice of the Deputy Director, department of Animal Husbandry, Government of Tripura, who lodged the FIR with the OC, Kailashahar Police Station and the same was registered as a special case under the Prevention of Corruption Act. At the conclusion of the investigation, the I.O. submitted the charge-sheet against Sri Tapan Kumar Saha (appellant). Dr. B.B. Saha (since deceased) and Dr. Mrinal Kanti Paul under Section 5(1)(c)of the PC Act, 1947. The learned Special Judge framed charge under Section5(1)(c) of the PC Act, against Sri Mrinal Kanti Paul and Sri Tapan Kumar Saha, to which the accused persons pleaded not guilty. The prosecution examined as many as 9 witnesses. The accused was examined under Section 313, Cr PC. While denying the allegations, the accused-appellant declined to adduce evidence. Considering the materials on record, the learned Special Judge found the appellant guilty of the offence under Section 5(1)(c) of the PC Act and convicted him under Section 5(2) of the PC Act. Accordingly, the appellant was sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for a further period of six months. 4. The learned Counsel for the appellant, taking me through the evidence on record, strenuously advanced the argument that there was no evidence on record to show that the appellant had misappropriated the alleged amount and that the prosecution was bad for want of sanction as required under Section 6 of the PC Act, 1947 (Section 19 under PC Act, 1988). The learned Counsel further submitted that the charge being framed on 3.9.1999 i.e. after coming into effect of the new Act, (after the repeal of the 1947 Act) the trial would be governed by the 1988 Act. Be that as it may, both under the new Act as well as the old Act, sanction is required to be taken before taking cognizance. The question regarding sanction will be dealt within the later part of this judgment. Be that as it may, both under the new Act as well as the old Act, sanction is required to be taken before taking cognizance. The question regarding sanction will be dealt within the later part of this judgment. In order to appreciate the contention regarding non-availability of legal evidence I would like to briefly discuss the evidence of the witnesses as follows: The charge brought against the appellant was, that during the period from 8,4.1982 to 11.3.1983 the appellant had dishonestly misappropriated an amount of Rs. 31,000/- only, which was entrusted to him by the department of Animal Husbandry, Government of Tripura. Deposing as PW1, Mr. Pradip Kumar Barua, who was a cashier of the UBI on 8.4.1982, stated that on the said date he received an amount of Rs. 3,815/- vide challan No. 155 and that the said amount was tendered by Sri Tapan Kumar Saha (appellant). He also stated that there were three challans i.e. challan bearing No. 155 dated 8.4.1982 with overwriting challan No. 313 dated 11.3.1983 by which an amount of Rs. 885 was deposited by the department and was tendered by Sri Tapan Kumar Saha and challan dated 11.3.1983 for an amount of Rs. 1,885. He further stated that in all the said challans, the signatures of the bank employee was there and that he himself had signed the challans, for Rs. 3,815 and Rs. 33,815/- while Sri Ashish Choudhury had signed the challan for Rs. 885/- and Rs. 1,885/-. In view of the evidence of said PW 1, it appears that though there were challans for Rs. 33,815 and Rs. 1885/- bearing signatures of the bank employees, the amount mentioned therein were not deposited in the bank. This witness did not. State anything indicating the manner in which the amount of Rs. 31,000/- was misappropriated. In fact, he did not State that the accused had misappropriated the said amount. PW 2 Matilal Lashkar, the Project Officer of ICDP-II, Dharmanagar stated that there was an entry in the cash book regarding the amount of Rs. 56,000/- and that the appellant used to draw and deposit the money in bank. In his cross-examination, he stated that sometimes Group-D employees also used to deposit the money in the bank. The evidence of PW 2 does not inspire confidence to believe that the appellant had misappropriated the said amount. 56,000/- and that the appellant used to draw and deposit the money in bank. In his cross-examination, he stated that sometimes Group-D employees also used to deposit the money in the bank. The evidence of PW 2 does not inspire confidence to believe that the appellant had misappropriated the said amount. In his cross-examination, this witness stated that it was Dr. Saha who had spent the money regarding the implementation of the scheme and deposited the unspent money in the bank through treasury challan. PW 3 Sri Paresh Chandra Datta Chowdhury, an employee of the bank, stated that the bank had received an amount of Rs. 885/- and Rs. 3,815/- by two challans. This witness did not State anything against the appellant. PW 4 Sri Ashish Chowdhury, an employee of the bank stated that Rs. 3,815/- and Rs. 885/- were received in the bank and that though there were two challans showing Rs. 33,815/- and Rs. 1,885/-, no such amount was received by the bank. This witness did not State anything indicated that the appellant had committed the mischief. PW 5, who was a clerk working in the UBI, Kailashahar Branch, stated nothing against the appellant. In his cross-examination, this witness stated that in the challan for Rs. 1,885/- his signature was there. PW 6, who was the Accountant of the UBI, Kailashahar Branch, stated nothing regarding the challan for Rs. 33,815/- and Rs. 1,885/-. He did not speak anything against the appellant. PW 7 also did not State anything against the appellant. PW 8, who was the Vigilance Inspector stated that he made the vigilance enquiry and submitted report to the Director. He did not State anything against the appellant Tapan Kumar Saha. PW 9 Deba Prasad Roy was the Investigating Officer who submitted the charge-sheet. In his in-chief examination, the I.O. stated that he obtained sanction from the Government in connection with Kailashahar PS Case Nos. 19(6) of 1985, Section 20(6) of 1985, Section 21(6) of 1985 and Section 22(6) of 1985 and submitted the charge-sheet against the accused Sri Tapan Kumar Saha, Dr. B.B. Saha and Dr. Mrinal Kanti Paul. He marked the sanction as Ext. P/15. In his cross-examination he admitted that he did not send the treasury challans to the handwriting expert for ascertaining the handwriting in the challans. B.B. Saha and Dr. Mrinal Kanti Paul. He marked the sanction as Ext. P/15. In his cross-examination he admitted that he did not send the treasury challans to the handwriting expert for ascertaining the handwriting in the challans. He stated that it was confirmed by the officials of DDAH, Treasury and the bank that the handwritings were made by Sri Tapan Kumar Saha. This witness further stated that it was ascertained by the previous IO that the figures and words in the challans were inserted by Sri Tapan Kumar Saha. He failed to State about the whereabouts of the previous IO, namely, Sri Bhupati Chakraborty. So from the evidence of IO it appears that the investigation was done by Sri Bhupati Chakraborty and it was Mr. Chakraborty who had ascertained that the challans were fabricated by Sri Tapan Kumar Saha. In view of the above, examination of Sri Bhupati Chakraborty was essential. But the prosecution failed to examine the said witness and thereby deprived the accused from disproving the prosecution case by cross-examining the IO. From the evidence as discussed above it appears that none of the witnesses could conclusively State that the amount of Rs. 33,815/- and Rs. 1885/- in the challans were written by the appellant and that he had misappropriated the amount mentioned therein. 5. In his statement given under Section 313, Cr PC the accused stated that sometimes he used to send the Group-D employee to deposit money and that he did not deposit the amount of this case in the bank. The PW 2 in his cross-examination stated that he was unable to remember if he had stated before the IO that it was Dr. Saha who had spend and deposited the money in the bank. In view of the above, non-examination of Mr. Bhupati Chakraborty who was the IO caused prejudice to the accused as he was denied the opportunity to cross-examination the said IO. 6. In his examination under Section 313, Cr PC the following 8 questions were put to the accused: 1. It transpires from the evidence of PWs numbering 1, 2 and 7 that in the year(s) 1981 AD-1983 AD you were posted at the DDAH Office, Kailashahar and used of work as cashier. What have you got to say regarding this? 2. In his examination under Section 313, Cr PC the following 8 questions were put to the accused: 1. It transpires from the evidence of PWs numbering 1, 2 and 7 that in the year(s) 1981 AD-1983 AD you were posted at the DDAH Office, Kailashahar and used of work as cashier. What have you got to say regarding this? 2. It transpires from the evidence of the said witnesses numbering 2 and 7 that while being the cashier of the DDAH, Kailashahar office, you used to maintain cash book No. 7 (Ext. P/5). It was in your handwriting and it was you who made all the entries in the cash book in connection with all the receipt and payment of money made and it was you who made entry of Rs. 56,000/- of the urban poultry scheme. What have you got to say regarding this? 3. It transpires from the evidence of PWs numbering 1, 2 and 7 that it was you who used to deposit as well as withdraw the department's money to and from the bank. What have you got to say regarding this? 4. It transpires from the evidence of PWs numbering 1, 3, 4, 5, 6 and 7 and from challan No. 313 dated 11.3.1983 for Rs. 885/- that you had submitted the said challans to the bank for receipt of the same and the said money had been deposited in the bank. What have you got to say regarding this? 5. On perusal of the original copies of the said two challans, PWs numbering 1, 3, 4, 5 and 6 had stated that Rs. 33,815/- and Rs. 1885/- had been written on it but as per the bank scroll, the said money had not been deposited in the bank. What have you got to say regarding this? 6. It transpires from the evidence of PWs numbering 8 and 9 that following an investigation on the basis of FIR lodged by Deputy Director G.B. Choudhury and on taking permission from the Government, they had submitted charge-sheet against you on the charge of grabbing Government money worth Rs. 31,000/- and for showing false accountant. What have you got to say regarding this? 7. Will you cite defence witness? 8. Have you got to say anything else? The question Nos. 1 and 2 were answered in the affirmative. 31,000/- and for showing false accountant. What have you got to say regarding this? 7. Will you cite defence witness? 8. Have you got to say anything else? The question Nos. 1 and 2 were answered in the affirmative. With regard to question No. 3 the accused stated that sometimes he used to deposit money and sometimes Group-D employee was sent to deposit money. This statement regarding deposit of money through Group-D employee has been supported by the PW 1. In respect of question No. 4, the appellant stated that he did not submit/deposit those in the bank. In respect of question No. 5 the accused expressed ignorance while in respect of question No. 6 he stated that the charge-sheet was false. In reply to the question Nos. 7 and 8 he stated that he would cite defence witness and that he had nothing to say. In the said examination, which was mandatory nowhere it was stated that the appellant had misappropriated the money. 7. It is settled law that in a criminal trial the prosecution is required to prove the case beyond all reasonable doubt. No benefit cannot be derived by the prosecution from the silence of the accused until the allegations are established by adducing cogent evidence. A careful scrutiny of the evidence on record leads to find that the prosecution failed to adduce substantive evidence to prove that the accused was entrusted with the alleged amount of Rs. 31,000.00 and that he had misappropriated the same. Hence, I am inclined to hold that the prosecution failed to prove the case beyond all reasonable doubt. That apart, in his examination under Section 313, Cr PC no incriminating evidence was brought to the notice of the accused indicating as to how the alleged misappropriation was proved. The evidence that the accused had written the sets of challans relating to different amounts and the evidence that he had deposited Rs. 3,815/- and Rs. 885/- by onset of challans as mentioned in the bank scroll and the statement that the amount of Rs. 33,815/- and Rs. 1,885/- as mentioned in the other sets of challans were not entered in the bank scroll, cannot be conclusive evidence to hold that the accused had misappropriated the amount. The fact remains that the bank scroll was maintained by the bank and the entry regarding deposit was made by the bank's employees. 33,815/- and Rs. 1,885/- as mentioned in the other sets of challans were not entered in the bank scroll, cannot be conclusive evidence to hold that the accused had misappropriated the amount. The fact remains that the bank scroll was maintained by the bank and the entry regarding deposit was made by the bank's employees. In the absence of any evidence regarding entrustment of the amount and non-deposit of the same, as per requirement, by the accused, no amount of suspicion howsoever high can take with the place of proof. Hence, it cannot be safely held that the appellant had misappropriated the money. Therefore, for want of sufficient legal evidence the impugned judgment and order of conviction and sentence is liable to be set aside. 8. The learned Counsel appearing for the appellant further submitted that though the investigating officer, in his evidence, stated that he had obtained the sanction, the same was not proved by the prosecution by examining the authority, who granted the sanction and thus, deprived the appellant from cross-examining the authority concerned and thereby getting the benefit of legal protection prescribed by Section 19 of the PC Act, 1988. The learned Counsel advanced the argument that had the person, who granted the sanction, been examined as witness, the accused would have got the opportunity to prove his innocence by cross- examining the sanctioning authority and therefore, non-examination of such witness caused failure of justice. In support of his contention the learned Counsel for the appellant has placed reliance on the decision held in 2000 (3) Crimes AP 555 Md. Jaffrulla Khan v. Inspector of Police, ACB Range, Hyderabad and in CBI/SPE, Hyderabad v. P. Muthuraman, 1996 Cri LJ 3638. Refuting the said argument advanced by the learned Counsel for the appellant, Mr. A Ghosh, learned Additional PP submitted that the learned trial Judge, passed the impugned judgment relying on the available evidence and that in view of Section 19(3) of the PC Act, the failure of the prosecution to examine the sanctioning authority and to prove the sanction order was not fatal. 9. Section 19 of the PC Act reads as follows: 19. 9. Section 19 of the PC Act reads as follows: 19. Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1) unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 10. A careful reading of the Section 19 leads to find that the Court should not take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 (Section 13 corresponds to Section 5(1)(c)of the old Act). However, in Section 19(3) it was made clear that no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1) unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. In Section 19(4) it was also provided that in determining the point regarding failure of justice the Court should have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. 11. Absence of sanction or any irregularity in grating the same will be a deciding factor in those cases where due to such absence or irregularity of the sanction order failure of justice is occasioned. It is also required to be examined if such objections could have been raised at an earlier stage. In the case of Jaffrulla Khan (supra) it was held that failure of justice had occasioned for not proving the sanction order according to law. As observed in the case aforesaid the purpose of introducing the Section 19is to protect the interest of innocent public servant from unnecessary harassment. This section requires the authority to consider as to whether, in a given facts and circumstances, there is sufficient material warranting initiation of criminal action against the public servant concerned. As observed in the case aforesaid the purpose of introducing the Section 19is to protect the interest of innocent public servant from unnecessary harassment. This section requires the authority to consider as to whether, in a given facts and circumstances, there is sufficient material warranting initiation of criminal action against the public servant concerned. Therefore, the authority concerned is required to apply its mind into the matter before granting the sanction so that innocent public servants are not unnecessarily harassed by initiating proceeding, without sufficient incriminating materials against them and the person against whom such sanction is granted acquires a right to cross-examine such authority to prove that the grant of sanction itself was not lawful or that the same was issued without any basis. Failure to prove the sanction as per law and to examine the sanctioning authority amounts to depriving the public servant from exercising his legal right and thus failure of justice is caused. 12. In the case of CBI/SPE (supra) the sanction order to prosecute the respondent under Section 19of the PC Act was marked as Exbt. 13 at the instance of the investigating officer without examining the person, who issued the sanction. No notification was also brought to the notice of the Court regarding appointment of the person authorizing him to issue the sanction order. In deciding the said case, the case of S & R of Legal Affairs v. Moazzem Hossain, AIR 1947 Cal 318, was relied upon in the said case, wherein it was held that in a case, where the legislature provided for a sanction as condition precedent to a criminal prosecution, such sanction must be strictly proved. The said judgment of the Calcutta High Court was relied upon by a Division Bench of the Madhya Bharat High Court in State v. Fulchand AIR 1956 Madhya Bharat 50 , wherein it was held that mere production of document was not sufficient, but it is necessary to prove the sanction by examining the sanctioning authority. The case of Mohd. Iqbal v. State of A.P., AIR 1979 SC 677 , was also relied upon in the said case. In the Mohd. Iqbal's case it was held "it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. In the Mohd. Iqbal's case it was held "it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways i.e. either by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence aliunde to show that facts placed before the sanctioning authority and the satisfaction arrived at by it." In CBI/SPE (supra) it was held "since the prosecution has not legally proved the sanction order Ext. P/13, the question of challenging the same during the trial cannot be said to have arisen and it cannot be said that the respondent-accused had any occasion to challenge the same. Had the sanctioning authority or the clerk been examined and had they proved the signature on the sanction order stating that the signatory was the competent authority to sanction prosecution and that fact was not challenged in cross-examination, the things would have been different. The investigating officer who has neither claimed nor would claim to have been acquainted with the signature of N.R. Khanna, was not competent to prove the sanction order Ext. P/13 and, therefore, the question of challenging his statement in the cross-examination does not arise. Under these circumstances, in my opinion, a failure of justice has in fact been occasioned by not proving the sanction order according to law." 13. In the present case in hand also, the prosecution failed to prove the sanction order and to examine the sanctioning authority or any other person acquainted with the seal and signature of such authority. As the sanction order was not lawfully proved at the initial stage, naturally the accused did not get any opportunity to cross-examine the witness and to challenge the legality, correctness etc. of the sanction. Therefore, this lapse deprived the accused from exercising his right to raise objection or to challenge the sanction and this failure of the prosecution deprived the accused from getting fair trial. As neither the sanction order was approved not the sanctioning authority was examined there was no question of raising any objection at that stage. of the sanction. Therefore, this lapse deprived the accused from exercising his right to raise objection or to challenge the sanction and this failure of the prosecution deprived the accused from getting fair trial. As neither the sanction order was approved not the sanctioning authority was examined there was no question of raising any objection at that stage. By failing to legally prove the sanction order the prosecution deprived the accused from establishing that the sanction was granted without any incriminating materials against the accused. Therefore, in my considered view this lapse on the part of the prosecution occasioned failure of justice. 14. In the facts and circumstances of the case as discussed above, no cogent and substantive evidence could be adduced to establish, beyond all reasonable doubt that the appellant had misappropriated the alleged amount of Rs. 31,000/-. Further, as discussed earlier, failure of the prosecution to prove the sanction and to examine the sanctioning authority occasioned failure of justice. Therefore, I find sufficient merit in this appeal requiring interference with the impugned judgment and order. 15. Accordingly, the impugned judgment and order aforesaid is set aside and the accused is set at liberty forthwith. Bail bond shall stand discharged. Return the lower Court records.