Research › Search › Judgment

Tripura High Court · body

2013 DIGILAW 23 (TRI)

Sunil Tripura v. State of Tripura

2013-08-01

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. By this revisional application, filed under Section 397 read with Section 401 of Cr.P.C., the convict-petitioner challenged the judgment and order, dated 23.12.2008 passed by learned Addl. Sessions Judge, South Tripura, Belonia, in Criminal Appeal No. 19(4)/2008 where-under learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence, dated 07.11.2008, passed by learned Judicial Magistrate 1st Class, Belonia, in Case No. GR 118 of 2000. Learned Judicial Magistrate 1st Class found the convict petitioner guilty of committing offence punishable under Section 409 of IPC and Section 7(1)(ii) of the E.C. Act and sentenced him to suffer R.I. for 3(three) years and to pay a fine of Rs. 5000/- in default of payment to suffer S.I. for 3(three) months under Section 409 of IPC and, again for commission of offence punishable under Section7(1)(ii) of the E.C. Act, he was sentenced to suffer R.I. for 3(three) years and to pay a fine of Rs. 5000/- in default to suffer S.I. for 3(three) months. However, Learned Judicial Magistrate 1st Class directed that the substantive sentences shall run concurrently. In appeal, learned Addl. Sessions Judge set aside the judgment and order of conviction and sentence under Section 7(1)(ii) of E.C. Act but upheld the judgment and order of conviction and sentence under Section 409 of IPC. 2. Heard learned Legal Aid Counsel, Mr. D.C. Roy and learned counsel, Mr. H. Debnath for the convict-petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 3. It is submitted by learned counsel, Mr. Debnath and Mr. Roy that 'Sukanta Large Sized Multipurpose Co-operative Society Ltd.' (for short, Sukanta LAMPS) of Sonaichari used to run a ration shop in addition to their other activities. According to the prosecution, the accused-petitioner Sunil Tripura was employed as a Night-guard cum Peon of the LAMPS and subsequently he was also asked to do the works of accounts of the office. According to the prosecution, he was also asked to draw ration goods and was also working as a weigh man of the ration shop. Since he was an employee of the LAMPS, which is admittedly a society registered under the Societies Registration Act, both the trial Court and the appellate Court held that he was not a Public Servant as defined in Section 21 of IPC, but both the Courts held that he was an agent of the LAMPS. Since he was an employee of the LAMPS, which is admittedly a society registered under the Societies Registration Act, both the trial Court and the appellate Court held that he was not a Public Servant as defined in Section 21 of IPC, but both the Courts held that he was an agent of the LAMPS. It is contended by learned counsel that there is nothing on record that the accused was entrusted with the works of the ration shop or had dominion over it. There is no paper that he was appointed as a dealer of the ration shop or that he used to do all works of the ration shop. In the absence of any such evidence about entrustment of the job of ration shop, the finding of the trial Court as well as the appellate Court that the accused was guilty of criminal misappropriation and/or criminal breach of trust was altogether unfounded and cannot sustain. 4. Learned Addl. P.P., Mr. Debnath with all his fairness has submitted that in the FIR, jointly lodged by P.W. 3, Maniklal Debnath, the Managing Director and P.W. 5, Sonai Tripura, the President of the LAMPS, alleged that there was shortage of goods in stock worth Rs. 26,000/- and there was shortage of cash of Rs. 49,500/-. He has fairly admitted that no audit report was submitted and no paper was also placed showing entrustment of the Fair Price Shop to the domain of the accused. He has also submitted that though Audit report etc. have not been submitted by the prosecution but the document Exhibit M series shows that the accused was entrusted to draw and distribute the ration commodities of the LAMPS Ltd. So, it may be presumed that the accused was entrusted to draw and distribute the ration goods and therefore, he may be held responsible for commission of offence punishable under Section 409 of IPC. 5. Both the trial Court and the appellate Court arrived at a clear finding that the accused petitioner was not a Public Servant. 5. Both the trial Court and the appellate Court arrived at a clear finding that the accused petitioner was not a Public Servant. Sukanta LAMPS as it appears, was a society registered under the Societies Registration Act and the accused-petitioner was engaged as a Night-guard cum Peon of the said LAMPS which transpires in the evidence of P.W. 3, Managing Director of the LAMPS, who clearly stated that - actually he was serving as a Night-guard cum Peon and subsequently he was entrusted as Salesman of Sukanta LAMPS after the decision of the Board of Directors. In the evidence of P.W. 3, who was the Managing Director of the LAMPS, there is not even a whisper that the accused petitioner was entrusted with the absolute domain of the ration shop and that he was entrusted with all the goods, properties and cash of the ration shop. There is no paper on record to show on which date the accused petitioner had taken over the charge of the ration shop. No oral evidence is also on record to that effect. There is also nothing on record as to how the alleged shortage of goods worth Rs. 26,000/- and shortage in cash worth Rs. 49,500/- was determined. No Audit report placed on record. Even the Managing Director, P.W. 3 stated nothing about the factum of determining the embezzlement He simply stated that Government has suffered a loss of Rs. 69,000/-. How that amount has been determined, not even a single word has been uttered by P.W. 3. The other witness, i.e. the Chairman of the LAMPS, P.W. 5 Sonai Tripura stated nothing at all. He was declared hostile by the prosecution and was cross examined by learned Assistant Public Prosecutor. 6. To prove the requirement of criminal misappropriation and/or criminal breach of trust, the prosecution is to show that there was an entrustment by the authority on the accused to deal with a particular subject and the accused had absolute domain over it and that the position of the subject matter on the date of entrustment i.e. the goods/articles or cash in hand were entrusted to the accused on the date of his taking over the charge. The next requirement of law to be proved is that all mens rea of the accused that he had misappropriated the property entrusted and converted it to his own use. The next requirement of law to be proved is that all mens rea of the accused that he had misappropriated the property entrusted and converted it to his own use. The further requirement of law the prosecution is to prove that the embezzlement alleged to have committed by the accused was on the date of lodging the FIR. There is no material at all placed on record that the accused had misappropriated the goods or cash as alleged in the FIR. The fact which is required to be proved by document must be proved by producing that document only. Oral evidence cannot be a substitute of the documentary evidence. The allegation that accused was entrusted or he had domain over the ration shop has to be proved with documentary evidence and not simply with an oral statement. No such document is placed on record. Exbt. M series only shows that he was authorized to draw the ration goods and to distribute it. Nothing is there that the ration shop was under his absolute domain and control. The allegation of shortage in goods and cash has been made in the air. No Audit or cash verification and/or physical verification of the ration shop were made. At least no documentary evidence has been produced before the Court to prove that the accused was entrusted with the affairs of the ration shop run by the LAMPS and that he had committed criminal misappropriation or criminal breach of trust in respect of the cash and goods of the ration shop. Except the evidence of P. Ws 1 and 3, there is no other evidence to show that the accused was dealing with the job of ration shop. Simply for the fact that the accused was dealing with the works of ration shop itself, cannot be a ground to hold that he was entrusted with the affairs of ration shop or that he had absolute domain over the affairs of the ration shop under the LAMPS. Except the oral statement that the accused was dealing with the ration shop and used to draw the goods of the ration shop, there is nothing else to arrive at a conclusion that the accused had the entrustment or domain over the ration shop and that the accused had criminally misappropriated goods or cash of the ration shop and thereby he committed criminal breach of trust. 7. 7. In the circumstances, the judgment and order of conviction and sentence, passed by learned Judicial Magistrate 1st Class, Belonia and affirmed by learned Addl. Sessions Judge, Belonia, is liable to be interfered and set aside. 8. Accordingly, the convict-petitioner, Sunil Tripura is acquitted of the charge on the benefit of doubt and is set at liberty. 9. The Criminal Revision Petition accordingly, stands disposed of. Send back the L.C. record along with a copy of this judgment.