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2010 DIGILAW 884 (GAU)

Rashi Charan Deb Barma v. State of Tripura

2010-11-24

A.C.UPADHYAY

body2010
JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. S. Deb, learned senior counsel assisted by Mr. D. Bhattacharjee, learned Counsel appearing for the Petitioner and Mr. A. Ghosh, learned Addl. Public Prosecutor representing the State of Tripura. 2. This revision is directed against the judgment and order passed by the learned Sessions Judge, West Tripura, Agartala, in Criminal Appeal No. 09(1) of 2001 affirming, the order of conviction under Section 409 I.P.C. passed by the learned Judicial Magistrate, 1st Class, Agartala in G.R. Case No. 782 of 1997 by reducing the sentence from 3 years R.I. to 1 year R.I. and with a fine of Rs.2,000/- in default to undergo R.I. for 2 months. 3. The facts, leading to filing of this Revision Petition, may be narrated, in brief, as follows: Sri P.K. Chakraborty, a Block Development Officer of Jirania R.D. Block lodged an Ejahar with Officer-in-charge of Jirania Police Station, stating therein that the Petitioner, the Panchayat Secretary of East Belbari Gaon Sabha, was entrusted with the construction work of 10 numbers of Indira Awas Yojana (I.A.Y.) houses at different places at East Belbari Gaon, vide Work Order No. 13165-235, dated 16.10.1996, 14765-864, dated 15.11.1996. The Petitioner was given advance amount of Rs.24,374/- as cash wages and 2220 k.g. of rice, for utilizing the same as wages and wood worth of Rs.66,400/-, G.C.I. sheet worth Rs.1,00,000/-. The aforesaid items were supplied to the Petitioner from time to time during the period from 19.11.1996 to 17.04.1997. Subsequently, the Petitioner also submitted adjustment against the amount of Rs.24,374/- 4. The complainant having visited the construction site on 22.02.1997 found the construction of the aforesaid houses were not completed and observed that two doors, three windows and Tuli of the roof had not been fitted and fixed by the Petitioner. The complainant was also informed by the Junior Engineer of Jirania R.D. Block that the construction was not completed. Accordingly, one Officer, namely Sri Mali Debbarma Extension Officer (Tribal Welfare) was asked to make an enquiry and to submit report. Accordingly, Mr. Mali Debbarma submitted his enquiry report stating therein that the construction of nine houses of the beneficiaries was not completed and the value of incomplete work was worth of Rs.25,724/- as per the technically approved and estimate. Accordingly, it was alleged that the Appellant Petitioner misappropriated Rs.25,724/- in terms of the materials and wages entrusted to him for utilization. Mali Debbarma submitted his enquiry report stating therein that the construction of nine houses of the beneficiaries was not completed and the value of incomplete work was worth of Rs.25,724/- as per the technically approved and estimate. Accordingly, it was alleged that the Appellant Petitioner misappropriated Rs.25,724/- in terms of the materials and wages entrusted to him for utilization. On the basis of an F.I.R., a case was registered and investigation was launched and on completion of the investigation, the investigating officer submitted charge sheet against the Petitioner alleging commission of offence under Section409 I.P.C. 5. During trial, the learned trial Court framed specific charge alleging misappropriation of Rs.25,724/- for non-completion of the work entrusted to him. The prosecution examined 6 witnesses besides adducing documentary evidence. The defence took the plea of denial. On conclusion of the trial, the learned trial Court convicted and sentenced the accused to undergo R.I. for 3 years. In the appeal preferred by the Petitioner, the learned Sessions Judge affirmed the conviction of the learned trial Court, however, considering the age and antecedent of the Petitioner, reduced the sentence to R.I. for 1 year and also directed to impose a fine of Rs.2,000/- in default to undergo R.I. for 2 months. 6. During the course of argument, learned Counsel for the Petitioner contended that there was no clear evidence on record to establish misappropriation of the property, which was entrusted to the Petitioner for the purpose of construction of the Indira Awas Yogana houses. 7. On appraisal of the evidence on record, it clearly transpires that the estimated cost of ten houses was Rs.2,15,000/- and for completion of the construction of the houses, every materials were supplied to the Petitioner including incidental expenses, woods, C.I. sheets and also rice by way of wages, for the purpose of utilizing it among workers engaged, during the construction of the Indira Awas Yogana houses. 8. 8. Learned Counsel for the Petitioner by drawing attention of the Court to the ingredients of offence under Section 409 I.P.C. submitted that without proof of misappropriation of the entrusted article, there cannot be an offence under Section 409 I.P.C. As a matter of fact, in order to attract the provisions of Section 409 I.P.C. following ingredients are required to be established by the prosecution: (i) that the accused was entrusted with the property in any manner or that such property was in his capacity of a public servant and (ii) that the accused committed breach of trust in respect of that property. 9. In order to bring home the aforesaid ingredients, the prosecution was required to establish two essential facts - (1) that the factum of entrustment and (ii) the factum of misappropriation of the entrusted articles. Where in a case though entrustment of certain articles has been proved, but there is no evidence either direct or circumstantial to show that the accused had misappropriated any of the articles in the go-downs or when the articles were in his possession. Therefore, the accused could not be presumed to have misappropriated any of the articles, merely on the ground that he failed to give any explanation for the shortage and his conviction would be unsustainable. 10. In the instant case, the accused was found to have left the houses incomplete, as per report of the Extension Officer. The value of incomplete work was Rs.25,723.17. But interestingly, there is no evidence on record to establish that any of the materials supplied to the accused-Petitioner was ever misappropriated by him. Therefore, in the absence of evidence on record to establish that the entrusted items were misappropriated, the accused cannot be held to be guilty of the offence under Section 409 I.P.C. alleged against him. 11. Mr. A. Ghosh, learned Additional P.P. in his usual fairness has submitted that enquiry was not conducted by the officials to ascertain as to whether the goods entrusted to the Petitioner was misappropriated by him. 12. From the above analysis of facts, it clearly transpires that the learned Court below misdirected themselves by jumping to a conclusion that offence under Section 409 has been made out against the Petitioner. 12. From the above analysis of facts, it clearly transpires that the learned Court below misdirected themselves by jumping to a conclusion that offence under Section 409 has been made out against the Petitioner. Therefore, without lingering the discussion any further, I am of the considered view that the appellate order, dated 30.03.2002 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Appeal No. 9(1) of 2001 deserves to be interfered with. 13. This revision is accordingly, allowed. 14. Accordingly, the appellate order dated 30.03.2002 passed in Criminal Appeal No. 9(1) of 2001 as well as the trial Court judgment dated 30.01.2001 in G.R. Case No. 782 of 1997 is hereby set aside. The accused is acquitted from the charges under Section 409 I.P.C. and he is set at liberty forthwith. Bail bond furnished on behalf of the Appellant-Petitioner stands discharged. 15. Send back the L.C.R. together with the copy of this Judgment. Petition dismissed.