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2012 DIGILAW 1163 (PAT)

State of Bihar v. Birendra Kumar Singh

2012-08-23

MANDHATA SINGH

body2012
JUDGMENT Prosecution case initiated on written application of Dr. Raghunandan Prasad Singh, in brief, is that he took charge of office of Dr. Awadh Bihari Sharma, retired on 31.1.1994. Cash balance on that day was Rs. 33/- only. 2. Accused Birendra Kumar Singh was performing the work of accountant as well as was preparing bills of employees and withdrawing money from the Treasury to distribute among them(employees) since 1.8.1993. He was maintaining cash book register but did not produce the same. He was in possession of a bill signed by his (informant’s) predecessor Dr. Awadh Bihari Sharma. 3. It is further alleged that bill of Rs. 33,450.00 was encashed/withdrawn on 7.2.1994 by accused Birendra Kumar Singh from the Treasury. He proceeded on leave on 8.2.1994 after submitting an application for casual leave but without allowing any leave. 4. It is further stated that cash/money was of gratuity of Sri Ram Chandra Purbey, a retired employee. It is specifically said that said money was misappropriated by accused Birendra Kumar Singh. 5. The trial is ended in acquittal of accused opposite party by judgment/order dated 14.3.2000, validity of which has been challenged by filing this appeal by the State of Bihar. 6. In all seven witnesses are examined on behalf of prosecution. They are P.W.1 Raghunandan Pd. Singh, P.W.2 Awadh Bihari Sharma, P.W.3 Kaleshwar Paswan, P.W.4 Phuldhar Yadav, P.W.5Chand Prakash Yadav, P.W.6 Bharat Pd. Singhone of the I.Os of the case who has submitted charge sheet in this case also andP.W.7 Ram Chandra Purbey victim of the case. Accused Birendra Kumar Singh has himself examined as D.W.1. 7. P.Ws 1 and 2 are on the point that a bill signed by P.W.2 remained with accused opposite party. P.W.1 is specific on the point that same was encashed/withdrawn by him which was to be paid to Ram Chandra Purbey P.W.7 but was never paid. P.Ws 3, 4 and 5 are also there to state that money was withdrawn by accused opposite party and was not paid to Ram Chandra Purbey P.W.7. P.W.7 is on the point that on 21.2.1994 this accused opposite party approached him at his residence and reported that his gratuity amount was withdrawn by him. Rs. 10,000.00 was lost somewhere and some money was expended on treatment of family members, rest money he (D.W.1) was intending to handover but was not accepted by him (P.W.7). 8. P.W.7 is on the point that on 21.2.1994 this accused opposite party approached him at his residence and reported that his gratuity amount was withdrawn by him. Rs. 10,000.00 was lost somewhere and some money was expended on treatment of family members, rest money he (D.W.1) was intending to handover but was not accepted by him (P.W.7). 8. The allegation in this case is that gratuity amount of P.W.7 was withdrawn by accused opposite party and was not paid to him. Prosecution case is that the same was withdrawn by this accused opposite party and not paid rather disappeared from the office for several days rather months. 9. P.Ws 1 and 2 are specific on the point that bill for the concerned money remained with this accused opposite party. He withdrawn the amount and did not pay. They have been doubted by the trial court that the bill was neither given to the accused opposite party nor was countersigned by P.W.2, so it cannot be said that withdrawal of money was by the accused opposite party. It appears only imagination of the trial court otherwise withdrawal of money is admitted to accused opposite party. He has examined himself in Court and got exhibited Exhibit-A that money was withdrawn by him taken to P.W. 1 who asked him to handover the same to him (P.W.1), accordingly he handed over the same to him. In such circumstance, withdrawal of money by opposite party never can be doubted. This much of the finding of trial court is perverse. 10. P.W.7 is the victim. His statement has been discussed that he is not stating in corroboration of the prosecution case but strange enough that his statement in chief has not been taken into consideration by the trial court. In his chief, he (P.W.7) is stating that Birendra Prasad Singh accused opposite party came to his residence, requested to receive the money which was left with him as Rs. 10,000.00 was missing from it, some of the amount was spent on treatment of family members but he refused to accept the money. P.Ws 3, 4 and 5 are also in corroboration of other prosecution witnesses though may not be said eye witnesses of the case but they are relevant on the point that accused opposite party disappeared from the office since 8.2.1994. P.Ws 3, 4 and 5 are also in corroboration of other prosecution witnesses though may not be said eye witnesses of the case but they are relevant on the point that accused opposite party disappeared from the office since 8.2.1994. On this point also there is no need of evidence of other witnesses as in Exhibit-A absence of opposite party has been admitted and an explanation is given that why he did not came to his office. 11. Ignoring the above circumstance and material, acquittal recorded by the trial court in its judgment/order is not liable to sustain. 12. In the result, this appeal is allowed, judgment/order dated 14.3.2000 passed/recorded by Judicial Magistrate, 1st Class, Khagaria (trial court) in GR 246/94/TR 645/2000 is set aside. Case is remanded to the trial court to decide the same afresh in light of the observation made above and in accordance with law after hearing the parties.