Research › Search › Judgment

Tripura High Court · body

2014 DIGILAW 86 (TRI)

Sankar Lal Choudhury v. State of Tripura

2014-02-14

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta; C.J.:- This criminal revision petition by the accused-petitioner is directed against the judgment dated 27-05-2005 delivered by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 11(1) of 2005 whereby he dismissed the appeal of the present petitioner and upheld the judgment dated 14-02-2005 passed by the learned Judicial Magistrate Ist Class, Sabroom, South Tripura in G.R. 20 of 2002 convicting the accused-petitioner of having committed an offence punishable under section 409 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for 3(three) years for the said offence. 2. The undisputed facts are that the petitioner was working as Panchayat Secretary of Hejachari and Suknachari Gaon Panchayat. It is not disputed that he along with PW-2 who was the Chairman of the Panchayat withdrew a sum of Rs. 81,825/- from the bank account of the Panchayat. This amount was not utilized nor put back in the account of the Panchayat and on 22-11-2000 an FIR was lodged. Thereafter, on 13-12-2000 the petitioner deposited the amount and his explanation was that on the next day after the withdrawal of the amount he met with an accident and was referred for treatment to Kolkata and remained on medical leave till 29-11-2000 and thereafter, he deposited the amount at the earliest. 3. Both the Courts below have believed the version of the petitioner that he had met with an accident and that he was on leave till 29-11-2000. They, however, have held that since he had withdrawn the money and had neither utilized the money for works of the Panchayat nor deposited the amount in the account of the Panchayat, he is guilty of misappropriation of funds of the Panchayat. 4. Normally this Court is very reluctant to interfere in findings of fact, but here the finding of fact recorded is one which goes against the very grain of criminal jurisprudence. One of the cardinal principles of criminal jurisprudence is that unless the law otherwise provides, mens rea must be established. Mens rea may be established by circumstances and may also be inferred, but if the accused comes up with a plausible explanation which would indicate absence of any mens rea to commit a criminal act, then such a person cannot be convicted for a criminal offence. Mens rea may be established by circumstances and may also be inferred, but if the accused comes up with a plausible explanation which would indicate absence of any mens rea to commit a criminal act, then such a person cannot be convicted for a criminal offence. He may be negligent in the discharge of his duties or the act may amount to misconduct as far as duties are concerned, but the same will not amount to criminal misconduct. 5. PW-2, the Chairman of the Panchayat, and the accused who appeared as DW-1 clearly stated that the amount was withdrawn by them on 29-09-2000. This amount was withdrawn for the construction of Hejachari market stalls. The accused stepped into the witness box and stated that the next day he proceeded towards Agartala to purchase bricks and other construction material required for constructions of the stalls along with the money and on the way he met with an accident. From the discharge certificate which has been placed on record, it is apparent that the petitioner was initially treated at the G.B. Hospital, Agartala up to 02-10-2000 and then referred to the SSKM Hospital in Kolkata where he remained admitted up to 24-11-2000 and was diagnosed as having fracture of both bones of the right forearm and also having chest injury. He thereafter came back to Agartala and rejoined duties only on 30-11-2000. In the mean time, the FIR had been lodged and on 13-12-2000 he deposited the money in the bank account. 6. The short question is whether the accused can be said to be guilty of having committed the offence of criminal breach of trust. Before convicting any person of criminal breach of trust, it must be shown that such person has "dishonestly" misappropriated or converted to his own use that property which was entrusted to him. There is no doubt that a temporary misappropriation can also be a criminal offence, but each case has to be decided on its own facts and circumstances. The defence of the accused that after withdrawing the money he was coming to the market to purchase construction materials the next day has really not been challenged in cross-examination. The fact that he met with an accident is also not disputed. The fact that he remained hospitalized in Kolkata till 24-11-2000 is also not disputed. The defence of the accused that after withdrawing the money he was coming to the market to purchase construction materials the next day has really not been challenged in cross-examination. The fact that he met with an accident is also not disputed. The fact that he remained hospitalized in Kolkata till 24-11-2000 is also not disputed. The fact that he remained on medical leave up to 29-11-2000 is also not disputed. 7. We are dealing here with the case of a person who, no doubt, had the money with him, but in the peculiar facts and circumstances, I find it very difficult to hold that he had any dishonest intention of keeping the money. He met with an accident, was hospitalized and was then taken to Kolkata. He may have been negligent in not handing over the money back but it cannot be said that he was guilty of dishonestly utilizing money for his own purposes. 8. In this view of the matter, the revision petition is allowed and the judgment of conviction and sentence passed against the accused is set aside. The accused is acquitted. Bail bonds are discharged. 9. Send down the lower court records forthwith.