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2014 DIGILAW 59 (CAL)

K. R. Chatterjee v. State of West Bengal

2014-01-27

TOUFIQUE UDDIN

body2014
Judgment : Toufique Uddin J. This appeal was directed against the judgment and order of conviction dated 15.02.2002 and 16.02.2002 passed by Sessions Judge, Howrah in Special Case No. 2 of 1996 and convicting the appellants thereby for commission of offence under Section 409/34/120B of the Indian Penal Code. The short background of this appeal is as follows:- A written complaint was lodged by one S.K. Jharihat, Superintendent of Uluberia S.D. Hospital with O.C. Uluberia P.S. alleging misappropriation of Government money amounting to Rs. 5,77,000/- and odd during the period of February 1986 to July 1991. The West Bengal Audit Party audited the accounts of the Uluberia S.D. Hospital for the period from 02.02.1993 to 19.03.1993 and inspected the accounts for the period from 06.01.1986 to 19.01.1993. During such audit, the audit party detected misappropriation of Government money amounting to Rs. 5,77,000/- and odd in the accounts of the said hospital. At the relevant point of time one Dr. K.R. Chatterjee was the Superintendent of the hospital and the other accused persons namely, Desranjan Sengupta- U.D.C., Brojendra Nath Sarkar- U.D.C. and Biswanath Roy- L.D.C. were attached to the Accounts Department and were responsible for drawing and disbursing the bill amount. The said amount was misappropriated by the accused persons. On the basis of the complaint, Uluberia P.S. Case No. 12 dated 17.02.1994 was started against three accused persons viz. Desranjan Sengupta, Brojendra Nath Sarkar and Biswanath Roy. After completion of the investigation, charge sheet has been submitted against those accused persons and Dr. K.R. Chatterjee under Section 409/120B/34 of Indian Penal Code. The Trial Court, on hearing of the both sides, framed charge against the accused persons. The contents of the charge, were read over and explained to the accused persons who pleaded not guilty and claimed to be tried. To contest this case, the prosecution examined as many as 10 witnesses, while none was examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given at the time of examination under Section 313 of the Code of Criminal Procedure was the denial of offence with a plea of innocence. On trial, the learned court below convicted the present appellants by the impugned judgment. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given at the time of examination under Section 313 of the Code of Criminal Procedure was the denial of offence with a plea of innocence. On trial, the learned court below convicted the present appellants by the impugned judgment. Now, the point for consideration is if the said judgment suffers from any material irregularity and calls for any interference or not. Section 409/120B/34 of Indian Penal Code read as follows:- 1) Section 409 of I.P.C.- Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 2) Section 120B of I.P.C.- Punishment of criminal conspiracy. – (I) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (II) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 3) Section 34 of I.P.C.- Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. To appreciate the case from a better angle some relevant pieces of evidence are required to be mentioned. The F.I.R is Ext. 7. It was lodged by the Superintendent of Uluberia Sub-Divisional Hospital on 12.02.1994. It was stated therein that the Accountant General, Audit Party detected the misappropriation of Government money amounting to Rs. To appreciate the case from a better angle some relevant pieces of evidence are required to be mentioned. The F.I.R is Ext. 7. It was lodged by the Superintendent of Uluberia Sub-Divisional Hospital on 12.02.1994. It was stated therein that the Accountant General, Audit Party detected the misappropriation of Government money amounting to Rs. 5,73,938.01 in the accounts of Sub-Divisional Hospital, Uluberia when Dr. Kumud Ranjan Chatterjee since retired on 31.08.1994 was the Superintendent of the S.D. Hospital. Desranjan Sengupta- U.D.C., Brojendra Nath Sarkar- U.D.C. and Biswanath Roy- L.D.C. were attached to the hospital. They were found involved in the foul play. P.W.1 was the Treasury Officer from 20th July, 1990 upto 12th October, 1995. On examination, he found that a total sum of Rs. 30,000/- shown excess in the Bill of Group-D staff for the month of September, 1991. It was detected by dealing assistant, one Kanailal Das, since deceased. On verification, he found some type of amount relating to same group of employees was shown in the Bill for the month of August bearing No. 176 dated 27.08.1991. He did not find that excess amount was deposited. He informed the O.C. of Uluberia P.S. through S.D.O., Uluberia. Police came to his office and seized Bill No. 193 and 176 marked as Ext. 1. Police seized also other relevant documents. He said that the duty of the dealing assistant is to check the Bill and he is to see the bill was prepared in accordance with Treasury Rules and Government Orders. From the dealing assistant the bill goes to the Treasury Accountant. Accountant checks the bill. The witness stated that he has a duty to see the total of the bill and if any, arithmetical mistake. Three bills exhibited 1, 1A and 1B were passed without proper checking. He said that arithmetical accuracy could not be checked by him due to pressure of work. The fact was first detected in the pay bill of September, 1991 by Kanailal Das. P.W. 1 stated that Kanailal Das was L.D. Assistant, Gobinda Das Chatterjee was the Accountant of the Treasury at the relevant time. P.W.2 is the Treasury Officer at the relevant point of time. He proved three bills bearing No. 191 dated 20.08.1990, No. 147 dated 18.07.1990 and No. 458 dated 20.02.1990 which were passed by him. P.W. 1 stated that Kanailal Das was L.D. Assistant, Gobinda Das Chatterjee was the Accountant of the Treasury at the relevant time. P.W.2 is the Treasury Officer at the relevant point of time. He proved three bills bearing No. 191 dated 20.08.1990, No. 147 dated 18.07.1990 and No. 458 dated 20.02.1990 which were passed by him. After checking and signing of the bill by the Accountant, the bills are sent to the Treasury Officer. He stated that it is the duty of the Treasury Officer to verify the accounts passed by the D.D.O. P.W.3 is the Upper Division Clerk of Uluberia Sub-Division Hospital. He is the signatory of the seizure list in respect of some documents including cash books, seized from the office. Those three cash books were marked Ext. 5, 5A and 5B. He stated that the auditor made audit from 1986 to July 1991and it was detected during that period there was a defalcation of Rs. 5,70,000/-. P.W.4, while acting as O.C. of Uluberia P.S., received a written complaint from the superintendent of Uluberia Sub-Divisional Hospital. He started the present case and drew formal F.I.R. marked as Ext.6. P.W.5 is the Superintendent of the Uluberia S.D. Hospital. After his joining, he heard that there were some discrepancies in the accounts in regard to defalcation in the Treasury Office. He informed the P.S. about defalcation of money. He produced cash books during investigation and police seized those books, marked Ext. 5, 5A and 5B and the corresponding bills were marked Ext. 8 series. The pay acquaintance rolls of the Group-D Staff from December, 1988 to April 1991 and September, 1985 to November, 1988 were also seized by police and marked Ext. 9 and 9A. He is the drawing and disbursing authority of the said hospital. His cross-examination shows that accused B.N. Sarkar was in charge of cash section while Dr. K.R. Chatterjee was the Superintendent of the hospital. He further stated that in every month he entrusted different persons for disbursing the amount of different sections. P.W. 6 is a Group- D employee of Uluberia Hospital since 1968. He stated that Biswanath Roy used to prepare bills for Group-D staff. Accused Brojendra Nath Sarkar encashed the cheque. This witness was declared hostile. P.W. 7 is another employee of Uluberia S.D. Hospital since 1984. He submits that the Dr. K.R. Chatterjee was the Superintendent while B.L. Sarkar was cashier. He stated that Biswanath Roy used to prepare bills for Group-D staff. Accused Brojendra Nath Sarkar encashed the cheque. This witness was declared hostile. P.W. 7 is another employee of Uluberia S.D. Hospital since 1984. He submits that the Dr. K.R. Chatterjee was the Superintendent while B.L. Sarkar was cashier. Biswanath Roy was the L.D Clerk. He could not say what was his nature of the work. He was declared hostile. P.W.8 is another employee of Uluberia S.D. Hospital since 1965. He said that accused Brojen Sarkar used to deal with the cash while two other accused Desranjan Sengupta and Biswanath Roy used to prepare the bills. He further stated that he was not aware of any incident of misappropriation of money in the said hospital. P.W.9 is another employee. He heard the defalcation of money but he is not sure that the accused persons were closely related to each other apart from their official business. He was also declared hostile. P.W. 10 is the Sub-Inspector of Police. He examined available witnesses and seized some documents. After investigation he submitted charge-sheet. This witness stated that according to the statement of P.W. 6, accused Desranjan Sengupta used to write cash book and accused Brojendra Nath Sarkar used to keep liquid cash and both of them used to disburse the money. P.W. 6 further stated to the I.O. that both the accused persons were very intimate to the Superintendent. From his evidence, it appears that he did not examine the auditor under Section 161 of Cr.P.C. over some incriminating matters appearing before them. The charge shows that the alleged period for defalcation of fund was from 01.03.1990 to 29.08.1990 whereas amount of defalcation was leveled as Rs. 5,77,000/-. The evidence shows that for the month of September, 1991 the salary drawn in excess to the quantity of 30,000/-. But the defalcated money was leveled as 5,77,000/-. Learned Lawyer of the accused persons contended that such amount is far in excess of the amount relatable to the said period and such inconsistency in framing of charge has misled the appellant. Interestingly, no breakup has been given in evidence to show that the actual defalcated money was Rs. 5,77,000/-. How that amount has been arrived at has not been disclosed in evidence. So, the argument of the defence side that the accused persons have been prejudiced cannot be ignored. Interestingly, no breakup has been given in evidence to show that the actual defalcated money was Rs. 5,77,000/-. How that amount has been arrived at has not been disclosed in evidence. So, the argument of the defence side that the accused persons have been prejudiced cannot be ignored. The breakup ought to have been shown. Learned Lawyer of the appellants submitted that charge under Section 120B of the Indian Penal Code is a distinct offence by its character. But the Section 34 of the Indian Penal Code is law of evidence. So, logically none can be said to have committed an offence pursuant to conspiracy hatched up with another accused and then again in pursuance of common intention shared between two persons or more than two. Relevantly it may be mentioned that common intention is a motive possessed by two or more persons. That motive is to do a particular work by all the participants sharing same intention. But in case of conspiracy in terms of Section 120B of the Indian Penal Code something else is required. Conspiracy is an aspect which is designed by two or more persons to do an evil act. Conspiracy and common intention are not synonymous with each other. Therefore, framing of charge on this score both under Sections 120B and 34 of the Indian Penal Code do not appear to be proper. Much said and much done in this case but to my estimation the very plinth of this case is not proved. No comparison or explanation was sought to be proved by the prosecution that the previous month’s salary for the period just prior to the month where excess amount has been shown to the first time has been proved. Whether the mistake is through oversight or intentional is also a point which cannot be ignored. More so, the concerned bill is for Pay Bills wherein the chance of defalcation may be less than other office expenses bill or so. Considering the evidence of P.W. 1 at least it can be inferred that entire staff of the treasury dealing with the bills submitted for drawal of the salaries of Group “D” Staff during the period from 1986 to 1991 had failed in their duty to detect the mistake. The said bill was signed by Dr. S.P. Roy who was the successor-in-office to the appellant in the post of Superintendent of the Hospital. The said bill was signed by Dr. S.P. Roy who was the successor-in-office to the appellant in the post of Superintendent of the Hospital. How and where the present appellants conspired is not manifest in the evidence. Higher Officers rely upon certification of the bills prepared by sub-ordinate staff. P.W. 3 did not attribute any culpability to the appellants. The appellant, Dr. K.R. Chatterjee was the Superintendent. He had to do many other jobs. Obviously, he had to rely upon certification of the sub-ordinate staff. The Cross-Examination of P.W. 5, Dr. S.K. Jharihat, the Superintendent of Uluberia Sub-Divisional Hospital shows “in every month I entrust different persons for disbursing amount for different sections”. This statement has to be taken with great care. If it is believed, then fixation of liability on a particular staff like the present appellants became doubtful. From what point of time the incident of alleged excess drawn took place should have been cross verified with reference to earlier period of drawal of money. Negligence per se without criminality is not an offence in the factual backdrop. Relevantly it is mentioned that neither the cashier nor the Superintendent appeared to have verified the allotment received for drawal of the salary bills of group “D’ Staff. So if there is at all any lapse that cannot be a conspiracy having a touch of criminality. There is no clear cut evidence that the appellants conspired with each other to commit misappropriation of government money withdrawn from the treasury on account of the salary of Group “D” Staff of the hospital. In this regard a pertinent question arises. The concerned Group- D recipients have not been examined in this case. Had it been done it could have been possible to get a better ray of light. The Investigating Agency, I am of view ought to have done this. This is a serious lapse. Had they been examined in the court at least the answer from them could have been obtained in the form of explanation as regards how much money they actually got. Defence case was that they were not at all responsible for any excess drawl of the amount. Allegation is, there was drawl of some excess amount. The question is who are the relevant persons responsible for this excess amount in respect of the salary bill during the period in question. Defence case was that they were not at all responsible for any excess drawl of the amount. Allegation is, there was drawl of some excess amount. The question is who are the relevant persons responsible for this excess amount in respect of the salary bill during the period in question. Drawal of excess money per se cannot be treated as misappropriation. The recipients of excess money should have been brought to proof that they did not receive the excess money, rather part the same money was misappropriated by the appellants. It is not done by prosecution. The learned court below exhaustively dealt with the matter, but in my estimation, he does not appear to have touched the root of the case. The documents exhibited A, A/3, A/4 speak something else. Initially when P.W. 5 was being examined, such document was not proved by him in evidence-in-chief. In course of cross-examination, such document was sought to be proved. The document exonerating co-accused Biswanath Roy was also issued by Dr. M. Manpuria (Ext. A/1) but she has not been implicated in the instant case on that score. Exhibits A, A/3 and A/4 do not at all throw any light with regard to the complicity of the present appellants in respect of the so-called defalcation. Another aspect is very much important. The learned trial judge in course of examination of the appellants under Section 313 of the Code of Criminal Procedure did not put the circumstances emanating from the aforesaid documents i.e., Exhibits A, A/3 and A/4 to the appellants for their explanation. So, the said documents cannot be relied against them. It is seen that the learned Judge by not confronting the appellant, with the circumstances emanating from Exhibits A, A/3 and A/4 during their examination under Section 313 of the Code of Criminal Procedure for their explanation has denied the valuable right to rebut such circumstances either by explanation in the course of such examination or by leading defence evidence. The failure on the part of the learned Judge touches the rule of fairness and it is opposed to the criminal jurisprudence. In Sharad Birdhichand Sarda vs. State of Maharastra reported in 1984 SCC (Cri) 487, the same principal was propounded that what is not taken at the time of 313 examination should not be used against any accused persons. The failure on the part of the learned Judge touches the rule of fairness and it is opposed to the criminal jurisprudence. In Sharad Birdhichand Sarda vs. State of Maharastra reported in 1984 SCC (Cri) 487, the same principal was propounded that what is not taken at the time of 313 examination should not be used against any accused persons. Similarly in the case of Barun Mukherjee vs. State of West Bengal reported in 2013(2) C.Cr.L.R. (Cal) 349, the court held that question not put to the accused at the time of examination under Section 313 of the Code of Criminal Procedure should not be applied against him while considering his case for final decision. The learned Judge of the court below embarked more on the circumstances than on the point of law while assessing evidence. He observed “from the evidence of these witnesses as well as from Exhibit 12, it is apparent that accused D.R. Sengupta, B.N. Sarkar and B. Roy all the three accused were posted at the Account Section and they used to do different jobs such a preparation of bills, disbursement of salaries to the Group “C” and “D” Staff including other nursing staff. D.R. Sengupta was entrusted for preparation of pay bills of the Group “C” staff at the relevant time but the evidence of P.W. 9, it appears that B.N. Sarkar and D.R. Sengupta used to handle the cash. The accused Biswanath Roy was also attached to the Account Section and he used to act in the Accounts department along with other two accused persons in the matter of preparation of the bills as well as disbursing the salary etc. The learned court below held “that apart from audit query report Exhibit 10, it is apparent that this practice of withdrawing excess amount from the treasury by way of submitting of inflated bills containing excess amount is carrying on long before the date of relevant date of charge of this case”. If it is so, who is the creator of such inflated bills has not been established. It may be that the present appellants mistakenly or without proper checking prepared the bills in question and if there is at all any lapse, that is, not getting a touch of criminality or conspiracy. If it is so, who is the creator of such inflated bills has not been established. It may be that the present appellants mistakenly or without proper checking prepared the bills in question and if there is at all any lapse, that is, not getting a touch of criminality or conspiracy. The discrepancy detected being the subject matter of this case relates to the pay bill of Group- D staff of Uluberia Sub-Divisional Hospital. Another question may crop up why the appellants will chose the bills of Group “D” Staff in connivance with one another to draw and disburse excess amount? Record shows such persons were also entrusted to prepare the bills of other categories. The last but not the least aspect is that the verification of cash book. The Learned Court held “The cash book does not indicate that it was deposited with Treasury”. This indicates a contrast picture. Had the appellants concealed the excess drawn amount at the time of writing cash book and shown the actual amount, then it could have been inferred that they have misappropriated the excess drawn amount. Therefore, the conjoint reading of materials on record, at least conclusively do not prove the guilt of the present appellants. So, I do not think that the judgment of the learned court below is sustainable. Accordingly, the impugned judgment and the sentence are set aside. The appellants be released and discharged from their bail bond immediately.