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2014 DIGILAW 796 (CAL)

Rabindra Nath Mondal v. State of West Bengal

2014-08-20

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 19th/20th September, 2006 passed by the learned Judge, Special Court-I, Nadia convicting the appellant for commission of offence punishable under Section 409 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for six months more. 2. The prosecution case, in short, is as follows: One Tapan Kumar Sarkar, P.W. 4, was the Sub-Postmaster of Gangnapur Sub-Post Office under Ranaghat Police Station at the time of occurrence. He lodged a written complaint with Ranaghat Police Station alleging misappropriation of Government money from Gangnapur Sub-Post Office by the appellant, who was posted as Treasurer of the said Sub Post Office at the relevant time. It was alleged therein that the appellant, being the treasurer of Gangnapur Sub-Post Office, absconded from 18.03.1994 and on 19.03.1994 counting the hard cash and other valuables in the cash chest of the post office, a sum of Rs. 1,02,064.55p was found to be misappropriated by the appellant. P.W. 4 sought for necessary legal action against the appellant. On receipt of such written complaint, Ranaghat P.S. Case No. 97/1994 dated 19.03.1994 under Section 409 of the Indian Penal Code was registered. Subsequently a corrigendum was submitted at the police station stating that the misappropriate sum was Rs. 99,935.55. In completion of investigation, charge sheet under Section 409 of the Indian Penal Code was against the appellant. The trial court framed charge under Section 409 Indian Penal Code against the appellant. It is the specific case of the appellant that he was suffering from heart ailment and had become ill on 17.03.1994. He handed over his key of the iron chest containing cash, stamps, etc. to P.W. 4 and left the office submitting leave application. He could not come to office on 18.03.1994 and 19.03.1994 due to ailments. Hence, there was no case of absconding on his part and he cannot be said to be guilty of the charge levelled against him. The prosecution in order to prove its case examined as many as seven witnesses and exhibited a number of documents. The appellant, however, did not examine any witness to probablise his defence. Hence, there was no case of absconding on his part and he cannot be said to be guilty of the charge levelled against him. The prosecution in order to prove its case examined as many as seven witnesses and exhibited a number of documents. The appellant, however, did not examine any witness to probablise his defence. In conclusion of trial, the learned Judge by the impugned judgment and order convicted the appellant for the commission of offence punishable under Section 409 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- in default to suffer further rigorous imprisonment for six months more. 3. Mr. Mallick, learned counsel appearing for the appellant submitted that the amount stated in the First Information Report was incorrect. Subsequently, corrigendum was submitted by P.W. 3 on 22.03.1994. He criticised such conduct of P.W. 3 and argued that the subsequent corrigendum was lodged on 22.03.1994 in order to cover the misdeeds of P.W. 4 who was primarily responsible for the misappropriation of money and had been suspended by the departmental authorities. In this connection he submitted that the prosecution case is an unnatural and concocted one and the evidence of P.W. 3 as to how he came to know of the incident cannot be believed. P.W. 3 stated that on 19.03.1994 he came to know from one Dilip Sarkar, Night Guard of Gangnapur Sub Post Office, that the appellant was not attending office since 18.03.1994. Mr. Mullick submitted that the said Dilip Sarkar has not been examined in the case whereas P.W. 4 started that one Haripada Biswas was the night guard at the sub-post office. Mr. Mallick further submitted that although the subsequent complaint of P.W. 3 spoke of the iron chest being broken open in the presence of independent witnesses, no such witnesses was examined. Prosecution relied on the version of P.W. 4 who cannot be said to be free of suspicion in the matter of misappropriation of the said money. It was most improper to base the conviction primarily on the evidence of P.W. 4. Mr. Prosecution relied on the version of P.W. 4 who cannot be said to be free of suspicion in the matter of misappropriation of the said money. It was most improper to base the conviction primarily on the evidence of P.W. 4. Mr. Mallick strenuously argued that no effort was made to know the whereabouts of the appellant on 18.03.1994 and 19.03.1994 although his residence was not at a far away place and the iron chest was not broken after giving him due notice or the superior authorities. He, accordingly, submitted that the prosecution case has not been proved beyond reasonable doubt and the appellant ought to be acquitted. 4. Mr. Gupta, learned junior standing counsel appearing for the State supported the conviction and sentence of the appellant and submitted that the appellant, being treasurer of the Sub Post Office, was entrusted with the hard cash and stamps and other valuable securities of the post office and had the key to the iron chest where such cash, stamps and other valuable securities were kept. Accordingly, entrustment and/or dominion over the cash and other valuables of the appellant has been proved beyond reasonable doubt. There is also no dispute that there was misappropriation of hard cash from the iron chest as evident from the inventory prepared on 19.03.1994 at the said sub-post office. The defence of the appellant that he had taken leave on 17.03.1994 by filing leave application has not probablised at all. No evidence is forthcoming as to why he failed to attend the office on 18.03.1994 and 19.03.1994. No evidence has been adduced on his behalf to establish that he was indisposed and therefore unable to attend office. He submitted that the evidence of. P.W. 4 is corroborated by P.W. 3, who is a superior officer and other employees of the sub-post office. None of such witnesses can be said to have any malice against the appellant. He further submitted that the breaking of the iron chest under the supervision of P.W. 3, a superior police officer, was done as per verbal instruction of superiors and was in accordance with law. 5. P.W. 1 was the postman attached to Gangnapur Sub Post Office at the relevant time. He stated that appellant was the treasurer of the said post office at the time of incident. 5. P.W. 1 was the postman attached to Gangnapur Sub Post Office at the relevant time. He stated that appellant was the treasurer of the said post office at the time of incident. The appellant was absent from office since 18.03.1994 along with the key of the iron chest where cash, stamps etc. of the post office were kept and cash transactions in the said post office was virtually suspended due to his absence. He stated that P.W. 4, Sub Post Master, informed the incident to the higher authorities. P.W. 1 further stated that there were two keys of the iron chest and both keys were required for opening the same. One key was with P.W. 4 while the other key was with the appellant. P.W. 1 stated that P.W. 3, the Inspector, came to the post office on 19.03.1994 and he broke open the iron chest in presence of the witnesses and examined the contents and shortage of cash was detected in the said iron chest. In cross-examination he denied that he was aware that the appellant had fallen ill on 17.03.1994 and sent an application for leave to P.W. 4. P.W. 2 is the witness to the seizure of account book, cash book of the Gangnapur Sub Post Office. He has proved the said seized articles. P.W. 3 was the Sub Divisional Inspector of Post Offices, Ranaghat West Circle at the relevant point of time. He stated that the appellant was the Postal Assistant-cum-Treasurer and his duties were to do treasury work, mail registration, P.L.I. collection and T.R.C. collection. He stated that on 19.03.1994 after getting information that cash section of Gangnapur Sub Post Office could not be operated on 18.03.1994 and 19.03.1994 due to absence of Treasurer, he went to the said Sub Post Office. He found all members of the staff excepting the appellant were present in the Post Office. He was also informed that from 17.03.1994 the appellant remained absent from office and no intimation or leave application was given. P.W. 3 stated that the iron chest of the post office had double lock system and one key was lying with the appellant and other key was lying with P.W. 4 and in absence of the key lying with the appellant iron chest could not be opened. P.W. 3 stated that the iron chest of the post office had double lock system and one key was lying with the appellant and other key was lying with P.W. 4 and in absence of the key lying with the appellant iron chest could not be opened. P.W. 3 stated that he perused the closing balance of 17.03.1994 as per treasurer's cash book and register and found that the balance was Rs. 2,17,522.56p. He proved the cash book. Thereafter, he broke open the iron chest and found liquid cash of Rs. 11,512/- only. Apart from that there was bank draft of Rs. 1,00,000/-, revenue stamp 740 in number and postage stamps of Rs. 5332.45. He prepared an inventory list in presence of the witnesses and the said list has been marked as Ext. 5 in the instant case. P.W. 3 further stated that as per the entries made by the appellant in the daily treasury register, hard cash ought to have been Rs. 1,11,514.56, but on physical verification the hard cash was found to the tune of Rs. 11,512/- only. There was a shortfall of hard cash to the tune of Rs. 99,935.55. P.W. 3 further stated that on physical verification stamps of Rs. 64.45 was found in excess and on 18.03.1994 there was a transaction of Rs. 2,127/- made by P.W. 4 and P.W. 5. Inadvertently, when the written complaint was lodged to the police, aforesaid sum of Rs. 2,127/- was added to the misappropriated sum and it was reported that the amount misappropriated was to the tune of Rs. 1,02,064.55. Noticing such discrepancy, P.W. 3 on 22.03.1994 submitted corrigendum to the First Information Report, which was marked as Ext. 7 in this case. In Cross-examination, P.W. 3 stated he had contacted over telephone the Superintendent of Nadia South Division and was orally authorised to start an enquiry. He further stated that he told the Investigating Officer of the case that he got information from the night guard of the relevant post office that the cash section of the said post office could not be opened on 18.03.1994 and 19.03.1994 due to the absence of the appellant. He further stated that he told the Investigating Officer of the case that he got information from the night guard of the relevant post office that the cash section of the said post office could not be opened on 18.03.1994 and 19.03.1994 due to the absence of the appellant. He denied the suggestion that on 18.03.1994 he with the active connivance of P.W. 4 had opened the iron chest with the key so delivered to P.W. 4 by the appellant and had taken out huge quantum of money from the iron chest in order to implicate the appellant. He clarified that in the departmental enquiry the appellant had been found guilty and had been discharged from service. P.W. 4 is the other vital witness to the case. He was a sub Postmaster of Gangnapur Sub Post Office at the relevant time. He stated that the appellant was the treasurer of the said Sub Post Office. He further stated that the appellant used to keep the cash and stamps in an iron chest, which was kept under double locking system. One of keys was kept with the appellant while the other with P.W. 4. P.W. 4 stated that the appellant worked upto 17.03.1994 and, thereafter, he locked the iron chest and left the office premises without taking permission of the P.W. 4. When P.W. 4 enquired about the appellant, he was not found in the office. Appellant did not turn up on 18.03.1994 and 19.03.1994 and the iron chest could not be opened in his absence. P.W. 4 informed the Superintendent of the Post Offices, South Division at Kalyani by sending an official letter through ordinary post. P.W. 4 further stated that he searched for the appellant but he failed to find out his whereabouts. On 19.03.1994 at 11 A.M. P.W. 3 came to the Post Office and broke open the iron chest in compelling circumstances. P.W. 4 stated that he unlocked the iron chest by using his own key and the other part of the lock was broken by P.W. 3 in their presence and an inventory list was prepared. P.W. 4 signed the inventory list. P.W. 4 found deficiency in the cash as per accounts maintained by the appellant upto 17.03.1994. Thereafter, he lodged First Information Report, which was marked Ext. 8. P.W. 4 signed the inventory list. P.W. 4 found deficiency in the cash as per accounts maintained by the appellant upto 17.03.1994. Thereafter, he lodged First Information Report, which was marked Ext. 8. He admitted that he was suspended by the higher authorities, but after completion of departmental enquiry he has been reinstated in service. In cross-examination he denied that the appellant had submitted leave application on 17.03.1994 with him with instruction that if the appellant could not turn up on 18.03.1994 the leave application be sent to the Superintendent for sanctioning leave. He denied suggestion that in collusion with P.W. 3 he had illegally broke open the iron chest and misappropriated money. P.W. 5 was the Savings Bank Postal Assistant at Gangnapur Sub Post Office. He corroborated the evidence of P.W. 3 and 4. He signed the inventory and proved his signature on the inventory list prepared by P.W. 3. In cross-examination he has denied that the appellant left the office on 17.03.1994 due to illness or had submitted a leave application, as suggested. P.W. 6 received the First Information Report, which was registered at the police station. P.W. 7 is one of the investigating officers of the case. The other investigating officer, namely, Monoranjan Das, who filed the charge sheet, could not be examined as he had died during trial. P.Ws. 3 and 4 are the most vital witnesses of the prosecution case. Prosecution has proved beyond doubt that the appellant was the treasurer of the sub-post office and had the custody over the hard cash and other valuable security of the said sub-post office. He had one of the keys of the double locking system iron chest where cash, stamps and other valuable securities of the post office were kept. Other key of the iron chest was kept in the possession of P.W. 4. In the ordinary course of business, the appellant had custody of the hard cash, stamps and other valuable securities transacted in the sub-post office and at the end of the day he checked the cash and stamps and made entry of closing balance in the cash register and locked the double lock of the iron chest with his key and thereafter P.W. 4 used to put his lock thereon. On 17.03.1994 the appellant had opened the iron chest and dealt with the cash and stamps. On 17.03.1994 the appellant had opened the iron chest and dealt with the cash and stamps. After the day's business, he prepared the cash register recording the closing balance as Rs. 2,17,522.56. Thereafter, he locked the iron chest with his key and left the office with his own key without intimating P.W. 4. He absented himself on 18.03.1994 and 19.03.1994 resulting in virtual closure of transaction in cash section of the said Sub Post Office. Under such circumstances, P.W. 3 was intimated and, under the oral instruction of the superior authorities, he broke open the iron chest and on physical verification found hard cash to the tune of Rs. 11,512/- only, Bank drafts, revenue stamps and postage stamps were also found of varying values. On calculation the shortage was found to the tune of Rs. 99,935.55 in hard cash. On 18.03.1994, a transaction of Rs. 2,127/- was made in the said Sub Post Office. Inadvertently the said cash was added to the shortfall and a sum of Rs. 1,02,064.55 was reported as short fall in the First Information Report, which was lodged on 19.03.1994. Such error was immediately rectified by a subsequent corrigendum on 22nd March, 1994. 6. These facts are proved through the evidence of P.W.s 1, 3, 4 and 5. The aforesaid facts clearly establish that the appellant had been entrusted with the hard cash and other valuables of the said sub-post office and had dominion and control over such assets of the said sub- post office. In fact, he has admitted in his examination under Section 313 of the Code of Criminal Procedure as to such entrustment and also of handling of cash and the iron chest till 7th March, 1994. It is his specific defence that on 17th March, 1994 he had given a leave application as he taken ill and thereafter failed to attend the office on subsequent dates that is 18th March, 1994 and 19th March, 1994 due to such illness. It has been suggested that taking advantage of his absence P.W.s 3 and 4 had opened the iron chest and removed the hard cash therefrom in order to falsely implicate him in this case. Such suggestions have been stoutly denied by all the prosecution witnesses. In this backdrop, let me examine how far the appellant has been able to probabilise such defence. Mr. Such suggestions have been stoutly denied by all the prosecution witnesses. In this backdrop, let me examine how far the appellant has been able to probabilise such defence. Mr. Mullick, learned advocate appearing for the appellant has strenuously argued that the appellant had been taking ill after the Union meeting which was held at the said post office. Holding of such union meeting is admitted by the prosecution witnesses particularly P.W. 5. 7. I have examined the evidence of the prosecution witnesses attached to the said post office. All such witnesses namely P.W. 1, P.W. 4 and P.W. 5 have categorically stated that they are not aware that the appellant had fallen ill on 17th March, 1994 and that he had submitted any leave application seeking leave to P.W. 4 in that regard. No leave application has been produced in course of trial. No defence witness have been examined to probabilise that he was ill at the relevant point of time and was therefore, unable to attend office. Hence, it is difficult to accept that the defence advanced by the appellant that owing to his illness he had left the office on 17th March, 1994 and was unable to attend office on subsequent dates. It is nobody's case that there is enmity between the appellant on the one hand and the prosecution witnesses on the other hand. In this backdrop it is highly unlikely that P.W.s 3 and 4 will conspire amongst themselves and other postal staff to remove cash from the iron chest in order to implicate the appellant. One cannot also ignore in mind the fact that P.W. 4 was suspended by his employer pending departmental action over the self-same incident and in conclusion thereof was reinstated in service. Accordingly, I am unable to accept the version of the appellant that the misappropriation of the hard cash from the iron chest was a product of conspiracy of P.W.s 3 and 4 in order to falsely implicate him. The evidence of P.W.s 3 and 4 has been corroborated by P.W.s 1 and 5 in the matter of breaking open the iron chest and preparation of inventory. Evidence of the said witnesses are reliable, convincing and consistent. There is hardly any cross-examination of the said witnesses discrediting their version. The evidence of P.W.s 3 and 4 has been corroborated by P.W.s 1 and 5 in the matter of breaking open the iron chest and preparation of inventory. Evidence of the said witnesses are reliable, convincing and consistent. There is hardly any cross-examination of the said witnesses discrediting their version. Accordingly, I find no reason as to why the consistent version of the said prosecution witnesses be disbelieved on the mere ground that public witnesses who signed the inventory list had not been examined in the instant case. The discrepancy as to the person who informed the incident to P.W. 3, a senior officer of the Postal department, does not militate against the genuineness of the prosecution case as the same is an insignificant and incidental fact in the unfolding of the prosecution case. P.W. 3 is a superior officer in the postal department and it is most likely he would receive information about the commotion created due to virtual stoppage of transactions in the cash section owing to the sudden abscondence of the treasurer, that is the appellant from the post office on and from 18th March, 1994. The appellant has not led any defence evidence to probabilise the version that he was ill and was unable to attend office on 18th March, 1994 and 19th March, 1994 respectively. Leave application has also not been produced before this Court. The whereabouts of the appellant could not be traced out and the iron chest was accordingly opened due to the fact that cash transaction in the said sub-post office had virtually come to a standstill. Accordingly with the oral directions of the superior authorities, P.W. 3 opened the iron chest. I am unable to accept the argument of Mr. Mullick that the proper procedure was not followed by P.W. 3 in breaking open the iron-chest. No cross-examination probabilising breach of any statutory procedure in the matter has been brought out. Accordingly, I am of the view that breaking open of the iron chest and shortage of hard cash therein has been proved beyond reasonable doubt. It appears from the suggestions given to P.W.s 3 and 4, the defence had also admitted to the misappropriation of hard cash from the iron chest. An absurd suggestion was given that such misappropriation was at the behest of the P.W.s 3 and 4 to falsely implicate the appellant. It appears from the suggestions given to P.W.s 3 and 4, the defence had also admitted to the misappropriation of hard cash from the iron chest. An absurd suggestion was given that such misappropriation was at the behest of the P.W.s 3 and 4 to falsely implicate the appellant. Appellant singularly failed to probabilise such improbable theory. In view of the aforesaid discussions, I uphold the order of conviction and sentence passed by the trial Court against the appellant. The appeal being devoid of any merit fails and is hereby dismissed. 8. The appellant is directed to surrender to his bail bond within a month from date and serve out the sentence in accordance with law. Lower court records along with the copy of the judgment be sent down to the lower Court at once. Photostat certified copy of the order, if applied for, be given to the parties on priority basis.