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2015 DIGILAW 1051 (GAU)

PUSPA GOGOI v. STATE OF ASSAM

2015-08-18

PARAN KUMAR PHUKAN

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JUDGMENT : PARAN KUMAR PHUKAN, J. 1. The judgment of conviction of the accused petitioner under Section 406 IPC by the learned Sub-Divisional Judicial Magistrate, North Lakhimpur, in G.R. Case No. 930/1996 and affirmed in appeal by the learned Additional District and Sessions Judge in Criminal Appeal No. 5(1)/2003 is the subject matter of challenge in this revision. 2. The factual backgrounds of the case in a nutshell are that the accused petitioner was entrusted with the job of construction of a community hall at Sonari Gaon, North Lakhimpur and for that purpose a cheque for Rs. 25,000/- was given to him from the MLA, LDA fund but it has been alleged that the petitioner misappropriated the entire amount and no construction was made by him. When the matter came to light, the ADC, North Lakhimpur filed FIR on the basis of which a case was registered and after completion of investigation Charge-Sheet was submitted. Trial commenced before the learned Sub-Divisional Judicial Magistrate, North Lakhimpur. 3. On conclusion of the trial the accused petitioner was found guilty under Section 406 IPC and he was sentenced to undergo Simple Imprisonment for 3 (three) months and to pay fine of Rs. 50/-, in default, to imprisonment for 5 (five) days. The judgment was affirmed in appeal by the learned Additional Sessions Judge. Hence, this revision. 4. I have heard the learned advocate appearing for the petitioner and the learned Additional Public Prosecutor, Assam. 5. On behalf of the respondent State, learned Additional Public Prosecutor, made strenuous efforts to support the judgment of conviction by both the Courts below. It was contended that there has been concurrent finding of fact arrived at by the Courts and the High Court in exercise of its revisional power cannot upset the concurrent finding of the Courts. It is a settled proposition of law that ordinarily it is not open to the High Court to interfere when there has been concurrent finding of facts of the Courts below unless it is shown that evidence on record was misread or not taken into consideration by the Courts. In the instant case, there is nothing to show that the evidence was misread by the Courts or any part of the evidence was not considered. 6. In the instant case, there is nothing to show that the evidence was misread by the Courts or any part of the evidence was not considered. 6. In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Others reported in (2004) 7 SCC 659 , the Hon'ble Apex Court observed as follows:- "22. The revisional Court is empowered to exercise all the powers conferred on the appellate Court by virtue of the provisions contained in Section 401 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of an Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court". It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of an appellate Court on the revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power" 7. Keeping in view the observations of the Apex Court in the above case, I have gone through the evidence of the material witnesses examined by the prosecution to ensure whether the findings arrived at by the Court suffers from any illegality. Out of the nine witnesses examined by the prosecution PW1 to PW4 and PW8 are all officials and employees of the office of the Deputy Commissioner, North Lakhimpur. They have consistently stated that an amount of Rs. 25,000/- by way of cheque was given to the accused for construction of the Rangamancha at Sonari Gaon and all the relevant documents have been produced and proved. 8. M. Ext.1 reveals that the cheque for the sum of Rs. 25,000/- was given to the accused petitioner by Tanka Borah PW2, LD Assistant of the concerned office. Supporting PW1, PW2 Tanka Borah also stated that cheque of Rs. 8. M. Ext.1 reveals that the cheque for the sum of Rs. 25,000/- was given to the accused petitioner by Tanka Borah PW2, LD Assistant of the concerned office. Supporting PW1, PW2 Tanka Borah also stated that cheque of Rs. 25,000/- was given to the accused from the fund of the MLA out of total sanctioned amount of Rs. 30,000/-. The Assistant Planning Officer PW3 asserted that the said amount was given to the accused for construction of the Rangamancha at Sonari Gaon. 9. Evidence of PW3 is that the accused petitioner again asked for the balance amount of Rs. 5,000/- and on verification, it was found that there was no sign of any construction of the proposed Rangamancha at Sonari Gaon and he immediately reported the matter to the Deputy Commissioner. The verification report Ext. 2 has been proved by him. The Junior Assistant of the Deputy Commissioner's Office also confirmed that amount of Rs. 25,000/- was given to the accused from the MLA fund and she produced and proved the concerned records. The ADC of the District PW8 Donalad Gilfellon filed FIR Ext. 1 on receiving information that the Rangamancha has not been constructed by the accused petitioner. The evidence of PW5 and PW6 the villagers of the concerned village also shows that money was given to the accused for construction of the Rangamancha which is fortified by PW7 and he also heard that some amount was given to the accused petitioner for construction of the Rangamancha. It appears from their evidence that some construction material was collected, but no construction was done. 10. All the witnesses examined by the prosecution are found to be reliable and trustworthy having no animus against the accused, they have given consistent and uniform version regarding the fact that Rs. 25,000/- was allotted and paid to the accused petitioner for construction of the Rangamancha at Sonari Gaon. When the accused petitioner asked for the balance amount of Rs. 5,000/-, then out of suspicion spot verification was made and it was found that no construction was done and the entire amount has been misappropriated by the accused petitioner. 11. Having gone through the evidence on record and the impugned judgments, I have found that both the Courts below discussed at length the entire evidence of the witnesses examined by the prosecution and from the evidence there is no doubt that Rs. 11. Having gone through the evidence on record and the impugned judgments, I have found that both the Courts below discussed at length the entire evidence of the witnesses examined by the prosecution and from the evidence there is no doubt that Rs. 25,000/- was paid to the accused for construction of the Rangamancha but he misappropriated the same. defence made a feable attempt to show that there was no entrustment in true sense and as such, Section 406 IPC is not attracted. 12. From the allegations made in the FIR itself, it is found that there was entrustment of the amount to the accused for construction of the Rangamancha but he did not construct anything and misappropriated the whole amount which brings the offence within the purview of Section 406 IPC. 13. Having gone through the judgments and the evidence on record, I have no hesitation to hold that the accused petitioner committed criminal breach of trust. I do not find any infirmity in the judgment passed by the learned Additional Sessions Judge which calls for revisional interference. Accordingly, the judgment and sentence is affirmed. The revision stands dismissed. The accused petitioner is directed to surrender before the Trial Court within 15 (fifteen) days from today to serve out the sentence. Send down the LCR with copy of the judgment for information and necessary action.