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2015 DIGILAW 808 (CAL)

Nanda Tudu v. State of West Bengal

2015-09-23

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. In this appeal the appellant challenges the judgment and order dated 28th July, 1989 passed by the Ld. 1st Special Court, Suri, Birbhum convicting the appellant under Section 409 of the Indian Penal Code (for short IPC) and sentencing him to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 2000/- in default to suffer imprisonment for a further period of 6 months. 2. Ms. Meenal Sinha, Ld. Counsel appointed by this Court as Amicus Curiae commences her arguments by taking this Court to the complaint lodged before the Superintendent of Police, District Enforcement Branch (for short DEB), Birbhum dated 4th September, 1981 by the complainant being the District Panchayat Officer, Birbhum. Ms. Sinha points out from the complaint that it emerges that the appellant, who at the material point of time between 1977 and 1982 was the Pradhan of Albandhu Sarpalenhana Gram Panchayat did not maintain the cash book for a long time as a result of which the actual amount of cash lying in his hand could not be assessed. However, according to the complainant, from supporting papers it is found that a sum of Rs. 15,792.92 paisa and an unspent balance of Rs. 6000/- out of Rs. 43,200/- taken as advance for construction of a school, thereby being a total of Rs. 29000/- approximately were lying in hand of the appellant and unaccounted for. 3. Since the appellant could not show the said sum of money to the complainant at the time of inspection, the complainant reasonably believed that there was a temporary diversion of public money and criminal breach of trust. 4. The complaint was registered as a First Information Report and after the necessary investigation and filing of charge sheet trial was commenced against the appellant for a charge under Section 409 IPC. 5. Ms. Sinha points out that the amount mentioned in the charge which is Rs. 47,353.69 paisa is different from the amount mentioned in the FIR which is Rs. 21,000/-. 6. Pointing out to other discrepancies in the evidence Ms. 5. Ms. Sinha points out that the amount mentioned in the charge which is Rs. 47,353.69 paisa is different from the amount mentioned in the FIR which is Rs. 21,000/-. 6. Pointing out to other discrepancies in the evidence Ms. Sinha argues that under the Provisions of the West Bengal Panchayat Act, 1973 (for short the 1973 Act) read with the West Bengal Gram Panchayat Administrative Rules, 1981 (for short the 1981 Rules) it is the duty of the Secretary to maintain the cash book and vouchers pertaining to the financial transactions of the concerned Gram Panchayat. Ld. Amicus Curiae points out that such responsibility for maintaining the cash book and preparing the vouchers does not lie with the appellant who, as the Pradhan, was only responsible for the general administration of the Gram Panchayat. Such position of facts and law shall be clear, according to Ms. Sinha, from a bare reading of Sections 34 and 35 of the 1973 Act read with Rule 35 of the 1981 Rules. 7. Ms. Sinha submits from the evidence of PW 7, who was the Block Development Officer under whom the appellant acted as the Pradhan, who has stated in his evidence that no compliant was made against the appellant for non-utilisation of money connected to the works of the Gram Panchayat. In respect of PW 9, Ld. Amicus Curiae submits that it is on evidence that PW 9 being the Secretary of the Gram Panchayat did not know how the money was utilised. In this regard Ms. Sinha submits that PW 9 in his evidence contradicts PW 1 in respect of the fact that PW 1 has deposed that the money was utilised. 8. It also emanates from the evidence of PW 9-the Secretary that he did not prepare complete accounts and also never lodged any complaint of mis-utilisation of public money against the appellant. 9. Ms. Sinha further argues that it is the evidence of PW 1 that the appellant is an Adivasi and illiterate. The appellant could merely sign his name and, such fact would appear from the several depositions. 10. Next, taking this Court to the evidence of PW 10, a subsequent Investigating Officer, Ms. Sinha points out that no seizure was made by PW 10 and his deposition merely reflects a perfunctory investigation. 11. Ms. The appellant could merely sign his name and, such fact would appear from the several depositions. 10. Next, taking this Court to the evidence of PW 10, a subsequent Investigating Officer, Ms. Sinha points out that no seizure was made by PW 10 and his deposition merely reflects a perfunctory investigation. 11. Ms. Sinha also submits that no sanction was taken as required under law under Section 197 CrPC to proceed against the appellant in his capacity as a public servant. In this connection she relies upon an unreported decision of this Court in CRA 305 of 1988. 12. Also relying on AIR 1985 SC 1433 (at para 10), Ms. Sinha argues that in order to establish a charge under Section 409 IPC it is essential to prove dominion over the property which, in the facts of the present case, was not proved. 13. Also relying upon Section 212(2) CrPC Ms. Sinha argues that the charge exceeds the validity period of 1 year as provided by law and therefore the charge was framed in violation of Section 212(2) CrPC. 14. Further relying upon Sections 191 and 192A of the 1973 Act Ms. Sinha points out that the audit report of the said Gram Panchayat was not referred to the State Government for taking any action. Drawing sustenance from Section 32 read with Section 45(4) of the 1973 Act, Ms. Sinha argues that under the Panchayat Law the entrustment of the money is with the Gram Panchayat and, not with the Pradhan. 15. In order to maintain a charge under Section 409 IPC Ms. Sinha argues that it is necessary to prove dishonest intention right from the beginning of the transaction and mere retention of the money to attract the mischief of Section 409 IPC is not enough. With regard to the above noted proposition that mere retention of money is not breach of trust, Ms. Sinha relies upon the decisions reported in AIR 1940 Madras 329 and AIR 1928 Bombay 205. 16. Lastly, Ld. Amicus Curiae strongly relies upon the statement of the appellant-accused recorded before the Ld. Magistrate under Section 313 CrPC. Referring to Question nos. 3 and 10 thereof Ms. Sinha points out it is the categorical assertion of the appellant before the Ld. 16. Lastly, Ld. Amicus Curiae strongly relies upon the statement of the appellant-accused recorded before the Ld. Magistrate under Section 313 CrPC. Referring to Question nos. 3 and 10 thereof Ms. Sinha points out it is the categorical assertion of the appellant before the Ld. Magistrate and, such assertion cannot be ignored, that after withdrawal of money the appellant as Pradhan use to call a Panchayat meeting and pay money to the members of Gram Panchayat for their respective works and, upon such disbursement the members after undertaking the works were required to submit vouchers. It is the further categorical assertion of the appellant in his Section 313 statement before the Ld. Magistrate that all the vouchers were handed over to the Secretary-PW 9. 17. On the basis of all the above arguments Ld. Amicus Curiae submits that the judgment of conviction be reversed and the appellant be acquitted. 18. Per contra, Mrs. Rituparna De (Ghose), Ld. Counsel appearing for the State-respondent places the ingredients of Section 409 IPC and submits that such ingredients have been proved in the facts of the present case. According to Ld. State Counsel, from the evidence of PW 1 both entrustment and misappropriation are proved. Ld. State Counsel further points out from the evidence of PW 1 that it is not in dispute that the appellant as Pradhan was in overall charge of handling the money of the Panchayat. Although the Secretary may have been responsible for handling the cash book, in respect of the cash in hand the appellant cannot shake off all liabilities. 19. Next, relying on the evidence of PW 7 Ld. State Counsel argues that the appellant had not handed over the cash in hand even during the investigation. The appellant was entrusted with public money and must account for the same. 20. Ld. State Counsel further argues that the appellant has tried to wriggle out of his culpability by placing the blame at the door step of PW 9, the Secretary. However, such blame may be the subject matter or substance of separate charges under the IPC. The appellant was entrusted with public money and must account for the same. 20. Ld. State Counsel further argues that the appellant has tried to wriggle out of his culpability by placing the blame at the door step of PW 9, the Secretary. However, such blame may be the subject matter or substance of separate charges under the IPC. In the facts of the present case the appellant is required to prove his defence and statement made by the appellant in his Section 313 CrPC statement (supra) that all vouchers have been handed over by him to the Secretary who did not maintain them, has not been corroborated by a single witness. 21. Placing the evidence of PW 5, being the Panchayat Extension Officer who audited the accounts of the Panchayat, Ld. State Counsel strongly argues that such evidence proves entrustment of money with the appellant. However, PW 5, although being an independent witness, has attempted to point out to the culpability of the appellant by deposing that there is no proof that the money withdrawn by the appellant was actually utilised/spent. 22. From the evidence of PW 9/Secretary, Ld. State Counsel submits that such evidence clearly implicates the appellant of withdrawal of money without showing utilisation thereof as well as the fact that emerges from the Panchayat meetings that the money was entrusted with the appellant. Ld. State Counsel also submits from the evidence of PW 11 that the signature of the appellant was identified. In respect of the appellant' statement under Section 313 CrPC, Ld. State Counsel points out that such statement has not been corroborated by the Upopradhan and the suggestion by the appellant that his signature was not verified can be found to be false from the evidence of PW 11. Ld. State Counsel therefore submits that the judgment and order of conviction be maintained. 23. Replying to Ld. State Counsel, Ld. Amicus Curiae submits that from pages 25 and 29 of the paper book being the evidence of PW 9 and PW 10 respectively it shall transpire that PW 9/Secretary admitted to receiving the vouchers and PW 10/the second IO has testified to the fact that PW 9 received the vouchers which were part of his responsibility. 24. State Counsel, Ld. Amicus Curiae submits that from pages 25 and 29 of the paper book being the evidence of PW 9 and PW 10 respectively it shall transpire that PW 9/Secretary admitted to receiving the vouchers and PW 10/the second IO has testified to the fact that PW 9 received the vouchers which were part of his responsibility. 24. Heard the respective counsel and considering the materials on record this Court notices from the deposition of PW 1 that the accused has been described to be belonging to the Adivasi community with little education. PW 1 has also stated in evidence that in respect of the amount of Rs. 43,000/- received by the appellant for Gram Panchayat works, utilisation vouchers were available in respect of Rs. 35,000/- and the balance unspent amount was only Rs. 6000/-. However, according to PW 1 the cash in hand of Rs. 15,000/- stood unexplained. 25. This Court also notices that PW 1, the complainant had admitted that the Secretary was responsible for maintaining the cash book. However, PW 1 did not seek any explanation from the Secretary with regard to the accounts and instead the Secretary was transferred during the pendency of the criminal proceeding. This Court therefore finds that the complainant himself expressed the satisfaction that out of Rs. 43,000/- for Gram Panchayat works there are vouchers in respect of Rs. 37,000/- and the unutilised sum allegedly misappropriated was only Rs. 6000/-. At the same time this Court notices that the complainant uses the expression "reason to believe" and, "temporary defalcation" in his complaint indicating plainly thereby that the charge of Section 409 IPC against the appellant cannot be construed to be complete. 26. Next, this Court notices the evidence of PW 3, a building contractor, who has stated that he received some money in advance from the appellant to undertake a panchayat work and since the entire work could not be completed, PW 3 supplied 15,000 bricks in lieu of the balance money held by him. PW 3 testifies to the fact that the appellant gave a receipt against the supply. 27. Next noticing the evidence of PW 4, the Upopradhan, this Court finds that in his cross-examination PW 4 has given a clear idea as to how the money allotted to the Gram Panchayat was spent after a discussion at a meeting of the Panchayat. PW 3 testifies to the fact that the appellant gave a receipt against the supply. 27. Next noticing the evidence of PW 4, the Upopradhan, this Court finds that in his cross-examination PW 4 has given a clear idea as to how the money allotted to the Gram Panchayat was spent after a discussion at a meeting of the Panchayat. The relevant portion of the evidence reads as follows:- "In meetings of Gram Panchayat it is decided how the money is to be spent through different members. In pursuance of the resolution, the different members entrusted with different works deposit their respective vouchers in the Panchayat Office. Secretary is entrusted with the duty to write the Cash Book on the basis of the vouchers received from different members and after writing the cash book, the Secy. Obtains the signature of the Prodhan on the Cash Book." 28. This Court therefore finds substance in the submission of Ld. Amicus Curiae from the evidence of PW 4 (supra) that there was no exclusive entrustment of money in favour of the appellant. On the contrary the manner in which the money would be spent for the different works is stated by PW 4 to be utilised by different members who were thereafter required to deposit their respective vouchers in the Panchayat Office. The Secretary was entrusted with the duty to write the cash book on the basis of the vouchers received from different members and after writing the cash book, the Secretary obtained the signature of the Pradhan on the cash book. 29. Now, coming to the evidence of PW 5, being the Panchayat Extension Officer, this Court finds that PW 5 has deposed that although the appellant was in-charge of withdrawal of money for utilisation in several works of the Panchayat, it was the duty of the Secretary to maintain the cash book. PW 5 admits to the fact that he made no physical verification of the items in respect of which discrepancies were noticed in the audit. PW 5 did not notice that the cash book remained blank at several places. PW 5, in the absence of the cash book which is the source of the audit report, contradicts PW 1 by stating that a total of Rs. 43,000/- and odd - remained unaccounted for. PW 5 did not notice that the cash book remained blank at several places. PW 5, in the absence of the cash book which is the source of the audit report, contradicts PW 1 by stating that a total of Rs. 43,000/- and odd - remained unaccounted for. For the purpose of this discussion this Court reiterates the evidence of PW 1 who states that out of Rs. 43,000/- and odd vouchers have been found in respect of Rs. 37,000/- and odd. 30. This Court is next required to notice the evidence of PW 9, the Secretary at the relevant time of the concerned Gram Panchayat. PW 9 states that it was his job to maintain the cash book but, the appellant as the Pradhan was required to sign the cash book at the space reserved for the Pradhan. PW 9 reiterates the statement of PW 5 that a total of Rs. 43,000/- and odd remained unaccounted for by the appellant and therefore like PW 5 contradicts the evidence of PW 1 with regard to the utilisation of the said fund. PW 9 further submits that he did not see any work being done by the appellant in respect of money withdrawn by him. 31. Noticing the evidence of PW 9 (supra) this Court compares it with the evidence of PW 1 who has stated that the accused is a member of the Adivasi community and not literate. However, from the evidence of PW 5 it can be seen that the appellant could sign his name and therefore accepted the cheques for the Panchayat. Taking the above facts to their logical conclusion this Court notices from the evidence of PW 9 that the appellant was instructed by PW 9 to sign his name on the space allotted for the Pradhan in the cash book without being really aware of the contents of the said cash book which were completely within the knowledge of the Secretary. Therefore, the appellant' claim to have been victimised at the hands of PW 9 as per his statement under Section 313 CrPC to the effect that PW 9/Secretary did not cooperate with him as he was an Adivasi does not appear, to the mind of this Court, to be a figment of imagination. 32. Therefore, the appellant' claim to have been victimised at the hands of PW 9 as per his statement under Section 313 CrPC to the effect that PW 9/Secretary did not cooperate with him as he was an Adivasi does not appear, to the mind of this Court, to be a figment of imagination. 32. From the evidence of PW 10, one of the Investigating Officers of the case it transpires that PW 10 did not physically verify any of the works which were allegedly required to be done by the appellant against the amount of Rs. 43,000/- and odd received by him although, PW 1 admits that a sum of Rs. 6000/- only stood unaccounted for. PW 10 did not make a complete seizure and with respect to PW 6, the Block Development Officer this Court notices that PW 6 does not state whether the accused submitted utilisation certificates or whether any complaint was made in the past for non-utilisation of the money. 33. Therefore, in the opinion of this Court, there are discrepancies in the evidence of several PWs with regard to the extent of utilisation of the fund of Rs. 43,000/- and odd by the appellant and presence of vouchers against such utilisation. 34. This Court also notices the clear statement of the Upopradhan, PW4 with regard to the manner in which the funds were proposed to be utilised at the Panchayat meetings (supra). This Court cannot also be unmindful of the role of the Secretary who had the responsibility for maintaining the cash book and obtained the signature of the appellant only on the space provided for the Pradhan, thereby conveying the distinct impression that the appellant, being an Adivasi and illiterate was not aware of the complete contents of the cash book as maintained by the Secretary. This Court must also notice that the funds were distributed for utilisation among the different Panchayat members who had their individual responsibility to execute the work in respect of the monies allotted to them, thereafter handing over the vouchers to the Secretary. 35. This Court also cannot be unmindful to the fact that the complaint itself is tentative by using the expressions "reason to believe" and "temporary defalcation" in respect of the public money withdrawn by the appellant as the Pradhan. 35. This Court also cannot be unmindful to the fact that the complaint itself is tentative by using the expressions "reason to believe" and "temporary defalcation" in respect of the public money withdrawn by the appellant as the Pradhan. Therefore, this Court is persuaded to hold that the chain of evidence nailing the role of the appellant to the commission of the alleged breach of entrustment punishable under Section 409 IPC is not complete. In this connection reference may be made to the decision of the Hon'ble Apex Court in Paramjeet Singh alias Pamma v. State of Uttarakhand reported in 2010 (10) SCC 439 at Paragraphs 13 and 14 which read as follows:- "13. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 14. 14. A similar view has been reiterated by this Court in State of Uttar Pradesh v. Satish, (2005) 3 SCC 114 ; Krishnan v. State represented by Inspector of Police, (2008) 15 SCC 430 ; Ramesh Bhai & Anr. v. State of Rajasthan, (2009) 12 SCC 603 ; Subramaniam v. State of Tamil Nadu & Anr., (2009) 14 SCC 415 ; and Babu v. State of Kerala, JT 2010 (8) SC 560, observing that the evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable." 36. From the judgment and order impugned of the Ld. Trial Court and particularly Paragraph 14 thereof, it appears to the mind of this Court that the Ld. Trial Court placed undue reliance on the fact that the appellant withdrew the money for the works of the Gram Panchayat. But the Ld. Trial Court did not focus on the other pieces of evidence which demonstrate as to how post such withdrawal the money was actually distributed for specific works and thereafter how the accounts were required to be maintained by PW 9/Secretary from the vouchers obtained from the individual members. The Ld. Trial Court did not only miss the proverbial wood for the trees but, was overwhelmed by the trees. 37. For the above reasons the judgment and order of conviction dated 28th July, 1989 qua the appellant is set aside. The appellant stands acquitted of the charge and also stands discharged from his bail bond. 38. CRA 342 of 1989 stands allowed. 39. Let the records be sent down to the Ld. Trial Court along with a copy of this judgment. 40. Ld. Public Prosecutor is directed to regularise the appointment of the Ld. Amicus Curiae.