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2011 DIGILAW 225 (CAL)

Oriental Insurance Co. Ltd. v. State

2011-02-17

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THE challenge in this revisional application is to the judgment and order dated 02.03.2009 passed by Sri Anupam Sarkar, the learned Judicial Magistrate, Kalyani, Nadia thereby acquitting the opposite party No. 2 Bhola Nath Roy Chowdhury @ Bholanath Chowdhury from the charge under Section 408 of the Indian Penal Code in G. R. Case No. 64 of 1997. 2. DILIP Kumar Das, the then Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged one written complaint with the Officer-in-Charge of the Kalyani Police Station against the opposite party No. 2, Sri Bhola Nath Roychowdhury alleging therein that on 29.04.1997 after opening the cash box of the office, he found that a cash amount of Rs.10,260/- was missing from the box. The opposite party No. 2 was absent on that date without prior notice. The Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch lodged another complaint with Kalyani P. S. alleging therein that a further sum of Rs. 4,11,879/- was also misappropriated by Bhola Nath Roy Chowdhury which he detected from the Books of Accounts and records. On the basis of the said F. I. R, Kalyani P. S. Case No. 56/97 dated 15.05.97 was registered and the case was investigated into and finally ended in charge-sheet under Section 408 of the Indian Penal Code against the opposite party No. 2. 3. THE opposite party No. 2 pleaded not guilty to the charge and as a result, the trial commended. In course of trial, as many as six witnesses were examined on behalf of the prosecution. Only document admitted into evidence was the F. I. R dated 12.05.1997 which was marked as Exhibit-1. THE prosecution failed to produce any further document in course of trial. THE learned trial Court upon consideration of the evidence on record found the opposite Party No. 2 not guilty to the offence and acquitted him by the impugned judgment. THE de facto complainant i.e. Manger, Oriental Insurance Co. THE prosecution failed to produce any further document in course of trial. THE learned trial Court upon consideration of the evidence on record found the opposite Party No. 2 not guilty to the offence and acquitted him by the impugned judgment. THE de facto complainant i.e. Manger, Oriental Insurance Co. Ltd., Kalyani Branch filed this revisional application challenging the legality, validity and propriety of the order mainly on the ground that the learned Court failed to appreciate the evidence on record properly and that the learned Court failed to exercise its power under Section 311 of the Code of Criminal Procedure read with Section 165 of the Evidence Act in the matter of calling the witnesses and documents seized in course of investigation by the prosecution. THE point to be decided in this revisional application is whether the order impugned is sustainable in law. 4. THE jurisdiction of the High Court while exercising its revisional power is limited and restricted specially in case of acquittal. It is only in glaring cases of injustice, resulting from some violation of the fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct retrial of the acquitted accused. THE power should be exercised sparingly and with great care and caution. THE mere circumstance is that a findings of fact recorded by the trial Court, may, in the opinion of the High Court be wrong, is not justified for setting aside the acquittal and direct retrial. This view was taken in Bansi Lal v. Laxman Singh, 1986 SCC (Cr) 342 : 1986 C Cr LR. (SC) 132. THE Hon'ble Apex Court in K. Chinnaswamy Reddy v. State of A. P., (1963)1 Cr LJ 8 in paragraph 7 observed : "Para - 7 - 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 in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be : where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). We have therefore to see whether the order of High Court setting aside the order of acquittal in this case can be upheld on these principles." In the instant case, the learned Magistrate appreciated the evidence on record made available to it by the prosecution. The de facto complainant who happened to be the Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch was examined and cross-examined in that case besides other witnesses. The case record shows that the learned Trial Court had given extraordinary latitude to the prosecution to procure witnesses named in the charge-sheet. The de facto complainant who happened to be the Branch Manager of the Oriental Insurance Co. Ltd., Kalyani Branch was examined and cross-examined in that case besides other witnesses. The case record shows that the learned Trial Court had given extraordinary latitude to the prosecution to procure witnesses named in the charge-sheet. The prosecution failed to even bring the I. O. of the case and admitted any piece of document into evidence save and except the F. I. R. By the order dated 02.01.2009, the learned Magistrate rejected the prayer of the learned P. P. who was conducing the case on behalf of the State for adjournment and closed the evidence of the prosecution. 5. THERE cannot be room of doubt that this Court being revisional Court cannot probe deep into the factual aspects and re-appreciate the evidence noted by the trial Court, but when there is glaring and manifest illegality or irregularity on the part of the trial Court, this Court can obviously interfere into the matter in order to make the wrong right. 6. MR. Banerjee, learned Advocate appearing for the petitioner submits that while the seizure list specifically shows that a particular document relating to official responsibility of the O. P. No. 2 in the matter of handling cash was seized by the I. O., the learned Court ought to have exercised its power under Section 311 of the Code read with Section 165 of the Evidence Act of its own. (That has not been done). MR. Banerjee submits further that without exhausting the process, the learned Magistrate closed the evidence of the prosecution, which is also irregular and illegal. MR. Banerjee, learned Advocate for the petitioner refers to the decision in Dakshin Dinajpur Zilla Parishad v. State of West Bengal and Anr. (2007)2 C Cr LR (Cal) 660 in support of his contention that the learned trial Court ought to have exercised its power under Section 311 of the Code read with Section 165 of the Evidence Act in the instant case. Mr. Pushpal Satpathi, appearing for the respondent opposite party No. 2 submits that when the Trial Court has properly appreciated the evidence, oral and documentary, the question of passing an order of retrial does not arise. In support of his contention, he refers to the decision in Satyajit Banerjee and Ors. v. State of W. B. and Ors., (2005)1 C Cr LR (SC) 142. In support of his contention, he refers to the decision in Satyajit Banerjee and Ors. v. State of W. B. and Ors., (2005)1 C Cr LR (SC) 142. 7. REFERRING to a decision of Mancheswar Service Co-op. Society Ltd. v. Anant Narayan Mishra and Anr. reported in 2003 Cr LJ 4390, Mr. Tirthankar Ghosh, learned Advocate appearing for the State of W. B. submits that while exercising its revisional jurisdiction whether the High Court direct retrial or not depends on facts and circumstances of each case. Some guidelines, Mr. Ghosh submits, have been given by the Hon'ble Apex Court in K. Chinnaswamy Reddy's case (supra). He submits that until and unless some glaring defects in the procedure or there is manifest error on a point of law followed by flagrant miscarriage of justice, High Court can only direct the retrial irrespective of the fact that the trial Court has taken the decision wrongly or mis-appreciated the evidence. 8. IT is true that the copy of the seizure list which has been made Annexure-B to the revisional application shows clearly that a letter of Assistant Branch Manager, Kalyani Branch Office addressed to the Divisional Manager, Barasat informing that Bhola Nath Roy Chowdhury has been entrusted to handle cash from 01.02.1991. Mr. Banerjee, learned Advocate appearing for the petitioner relies heavily on this portion of the seizure list and submits that seizure list was placed before the trial Court, it was duty of the Court to ask the prosecution to produce that document. He submits that the trial Court by exercising its power under Section 165 of the Evidence Act also could ask the Divisional Manager, Barasat to produce that letter of the Assistant Branch Manager, Kalyani Branch in order to proper adjudication of the matter. 9. I have carefully gone, through the judgement passed by the learned trial Court. The learned trial Court has taken the view of that since no document or registration was produced on behalf of the prosecution to establish the case specially when the original documents were the properties of Oriental Insurance Co. Ltd., presumption can well be done that the de facto complainant did not cooperate with the I.O. of the present case. As there was no documentary evidence except the written F.I.R, he found that allegation may be vague and baseless. 10. Ltd., presumption can well be done that the de facto complainant did not cooperate with the I.O. of the present case. As there was no documentary evidence except the written F.I.R, he found that allegation may be vague and baseless. 10. THIS findings of the Court has no bearing with the revisional application because in exercising revisional jurisdiction, this Court is not all inclined to probe deep into the factual aspect and re-appreciate the evidence. But, the petitioner has taken a specific ground in this revisional application, which is question of law, i.e., the learned Magistrate closed the evidence of further prosecution abruptly without exhausting the process. 11. FIRSTLY, the Learned Magistrate closed the evidence of further prosecution abruptly without exhausting the process. 12. SECONDLY, while the Court itself came to a finding that the original documents were properties of the Oriental Insurance Co. Ltd., i.e. de facto complainant, it is duty of the Court to call for those documents from the custody by exercising its power under Section 311 of the Code read with Section 165 of the Evidence Act. I have gone through the case record minutely and found that the case was registered in the year 1997. On 17.05.1997, the opposite party was brought under arrest in connection with the case who was granted bail on 15.07.1997. The accused was discharged on 03.08.1999 because the report of investigation under Section 173, Cr.P.C was not filed within the period specified under Section 167(1)(a)(iii), Cr.P.C. The matter went up to appeal and in view of the order passed in Criminal Appeal No. 3/99, notice was served on the opposite party directing him to appear in Court on 31.03.2001. The charge under Section 408 of the I.P.C was framed against the accused on 24.09.2002. The evidence of first witness from the prosecution side was recorded on 24.03.05. On 23.03.06, two other witnesses were examined, cross-examined and discharged. The learned Magistrate issued summons upon charge-sheeted witness Nos. to 4 to 9. Amongst them, one witness, Amal Kumar Sarkar was not traced out. On 02.07.08, the learned Magistrate noted down that fact and directed issuance of summons upon charge-sheeted witness Nos. 5 to 9. 13. ON 04.08.08, one Ajoy Roy was examined and cross-examined and discharged. Fresh summons were issued on charge-sheeted witness Nos. 5, 7, 8 and 9. ON 17.09.08, two witnesses were examined as P. Ws. 5 and 6. On 02.07.08, the learned Magistrate noted down that fact and directed issuance of summons upon charge-sheeted witness Nos. 5 to 9. 13. ON 04.08.08, one Ajoy Roy was examined and cross-examined and discharged. Fresh summons were issued on charge-sheeted witness Nos. 5, 7, 8 and 9. ON 17.09.08, two witnesses were examined as P. Ws. 5 and 6. ON 17.09.08, the learned Magistrate noted down that the rest witnesses have not appeared in spite of service of summons. The learned Court adjourned the case for evidence of the rest witnesses on 02.01.2009. ON 02.01.2009, the learned Magistrate closed the prosecution case on the ground that the prosecution failed to produce evidence, and the prayer for adjournment of the learned P. P. was routine in nature. 14. IT is needless to mention that when a summon has been issued bearing signature of Court, a duty casts on the Court to see the fate of the process so issued. In case, the Court finds that the witness fails to appear on the date fixed despite receiving the summons, the Court should either issue fresh summons or issue bailable warrant of arrest. In case, the witness fails to appear in Court despite service of non-bailable warrant, the Court is empowered to issue non-bailable warrant to ensure attendance of the witness. This power has been given to the Magistrate because of the fact that no one has right to ignore the Court of law and its direction. This apart, when attendance of vital witnesses is required for proper adjudication of the matter/the Court obviously try its best to cause their attendance. In the instant case, the learned trial Court has taken no such effort. IT simply closed the prosecution case without making any further effort to cause attendance of the witness Nos. 5 to 9 including the I. O. of this case. This inaction on the part of the Court obviously has caused prejudice to the prosecution. It is to be kept in mind that the case against the opposite party was for misappropriation to public exchequer, according to the prosecution cases, which was entrusted with him. 15. THERE was a strong prima facie case against him for committing an offence of breach of trust under Section 408 of the Indian Penal Code. If so, evidence of the I. O. was vital one. 15. THERE was a strong prima facie case against him for committing an offence of breach of trust under Section 408 of the Indian Penal Code. If so, evidence of the I. O. was vital one. It is true that for this reason or that reason, the trial was commenced at a belated stage. That alone cannot be the ground for closing of the evidence of the prosecution case. Rather, it is the duty of the trial Court to see that summons issued by the Court is obeyed and the person summoned appears. In case of latches on the part of the persons summoned, the Court should take adequate steps for procuring his attendance. Therefore, there is manifest illegality and irregularity in the manner in which the evidence of the prosecution side was closed. 16. IN my opinion, the learned trial Court ought to have taken appropriate step for securing attendance of the witnesses, who disobeyed his direction willfully by not attending the Court despite receiving summons before closing of evidence of the prosecution. Therefore, I find that this Court should interfere into the matter by exercising its revisional jurisdiction in order to correct the defect/ irregularity in the procedure in conducting the trial. 17. AS far as the contention of Mr. Banerjee, learned Advocate appearing for the petitioner that the learned Court ought to have exercised its power under Section 311 of Cr. P. C read with Section 165 of the Evidence Act because of the item No. (viii) of the seizure list is concerned, I would like to state that the said seizure list has itself not been admitted into evidence and, as such, the learned trial Court had no scope to consider the item No. (viii) of that seizure list. 18. THE power under Section 311, Cr. P. C read with Section 165, of Cr. P.C is wide and extraordinary which can be exercised in proper cases at any point of time by a trial Court. In case, the trial Court finds that a document is required to produce for the proper adjudication of the case it can always exercise its power under Section 311 of Cr. P.C read with Section 165 of the Evidence Act. The power is discretionary, extraordinary and to be exercised as and when required for the purpose of proper adjudication of the case. P.C read with Section 165 of the Evidence Act. The power is discretionary, extraordinary and to be exercised as and when required for the purpose of proper adjudication of the case. But, there should be a basis of such exercise of power. Here in this case, the only source is the seizure list which indicates that a document relating to entrustment of cash of the office was given to the opposite party. That seizure list has not yet been admitted into evidence and the I. O. has not come forward to prove the seizure list as yet. 19. THEREFORE, until and unless the I.O. appears and depose regarding the articles seized by him, the Court cannot possibly exercise power under Section 311 of the Code read with Section 165 of the Evidence Act in the instant case. 20. HOWEVER, from the foregoing discussion, it is clear that there is manifest illegality and irregularity in the matter of closing evidence of the prosecution which, no doubt, amounting to flagrant miscarriage of justice. Therefore, I think it proper to interfere into the matter and allow the revisional application with the following direction. That the learned Magistrate should issue fresh summons upon the remaining witness Nos. 5 to 9 including the I. O. 21. IN case they fail to appear, the learned Magistrate should issue bailable warrant against them. IN case of failure of the witnesses to appear in the Court on the date fixed, even after receiving the bailable warrant, the learned Court should procure their attendance by issuing non-bailable warrant of arrest. 22. ONCE they are appeared, the Court should record their evidence giving the accused/petitioner an opportunity to cross-examine them. In view of the facts above, I set aside the judgment. On completion of the examination of the witnesses, the learned trial Court should examine the opposite party herein under Section 313, Cr. P. C and give him opportunity to adduce evidence on his behalf. 23. UPON consideration of the evidence so recorded and already recorded, the Court should pass a fresh judgment. 24. THE revisional application is disposed of accordingly. Criminal Section is directed to supply urgent photostat copy of this order, if applied for, to the parties with usual undertaking.