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2016 DIGILAW 167 (CAL)

Basudeb Mukherjee v. State of West Bengal

2016-02-15

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2016
JUDGMENT : Md. Mumtaz Khan, J. The subject matter of challenge in these appeals is the judgment and order of conviction and sentence dated May 31, 2011 and June 01, 2011 respectively passed by the Ld. Additional District and Sessions Judge, Second Special Court, Purulia in Special Court Case No. 1 of 2007. By virtue of the impugned judgment the appellants were convicted for committing the offence punishable under Section 409/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for 08 years each and also a fine of Rs. 1,000/- each in default rigorous imprisonment for one month more. The period of detention undergone during trial and investigation was directed to be set off accordingly. The backdrop of these appeals is discussed herein under in a nutshell- An FIR being No. 70/06 dated November 04, 2006 of Raghunathpur P.S., District Purulia was drawn up against both the appellants on the basis of the written complaint dated November 04, 2006 of P.W.1, Bhaja Gobinda Satpati, Superintendent of Post Offices, Purulia Division, Purulia for committing the offence punishable under section 409 of the Indian Penal Code. According to FIR, Asit Baran Mallick (appellant of CRA No. 366 of 2011) was working as Postal Assistant of Raghunathpur Sub-Post Office since June 06, 2004 and was the custodian of government cash, stamps and valuables of Raghunathpur Sub-Post Office and Basudeb Mukherjee (appellant of CRA 315 of 2011) was working as a Sub-Post Master of that Sub-Post Office and was the joint custodian of the government cash, stamps and valuables. As the Sub-Post Master was not in a regular habit to count the cash and stamps every day, so taking advantage of the same Postal Assistant, Asit Baran Mallick misappropriated government money amounting to Rs. 6,71,247.45 for his personal use. It came to light when Sub-Post Master, Raghunathpur Sub-Post Office asked Sri Asit Baran Mallick, Postal Assistant of Raghunathpur Sub-Post Office to remit the surplus cash on November 03, 2006. Sub-Post Master, Raghunathpur Sub-Post Office then informed P.W.1 on November 04, 2006 over phone who then went to the Sub-Post Office, Raghunathpur and on verification cash and stamps found shortage of the cash of Rs. 6,71,247.45 and accordingly lodged the complaint (Exbt. 3). On receipt of the above complaint, P.W.6 drawn up the FIR (Exbt. 6) and took up investigation of this case. 6,71,247.45 and accordingly lodged the complaint (Exbt. 3). On receipt of the above complaint, P.W.6 drawn up the FIR (Exbt. 6) and took up investigation of this case. During investigation he visited Raghunathpur Sub-Post Office, prepared rough sketch map with index, seized account book by seizure list, examined the available witnesses and also apprehended both the appellants and forwarded them to court and after the case was taken up by D.E.B. he handed over the case docket to the officer of the D.E.B. on December 11, 2006 as per direction of SP Purulia. This case was then investigated by P.W.7 who after completion of investigation submit charge-sheet against the appellants under Section 409 of Indian Penal Code vide charge-sheet No. 03/07 dated31.01.2007. Charge was framed against the appellants on August10, 2007 under Section 409/34 of Indian Penal Code and after the appellants denied their involvement in the commission of the offence trial proceeded. Prosecution examined 07 witnesses and also produced and proved certain documents and thereafter on completion of trial and after recording the statements of the appellants under Section 313 Cr.P.C. learned court below passed the impugned judgment and order of conviction as also the sentence. Being aggrieved by and dissatisfied with the same appellants have preferred the instant appeals and the ground raised in the appeals is that the Ld. Court below failed to appraise and appreciate the evidence adduced in the case in its proper perspectives and passed the impugned order of conviction and sentence which is liable to be set aside. It is submitted by the learned counsel representing appellant Basudeb Mukherjee in CRA 315 of 2011, that the charge under Section 409 IPC was not proved against the appellant as there was no evidence-on-record that Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office had mens rea and he embezzled the Govt. money. On the other hand it was he who first detected the misappropriation of Govt. money by Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office and immediately reported this to the higher authority. According to learned counsel the only allegation, as per the FIR, against the appellant Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office was that he failed to count cash every day, so the charge against him could have been at best for dereliction duty but there was no evidence-on-record to prove even the negligence of this appellant. According to learned counsel the only allegation, as per the FIR, against the appellant Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office was that he failed to count cash every day, so the charge against him could have been at best for dereliction duty but there was no evidence-on-record to prove even the negligence of this appellant. According to learned counsel Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office had himself admitted his own guilt and he had no where implicated Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office that he was the abettor and/or that he was also involved in the commission of offence. According to him even P.W. 6, the first I.O., had admitted that he did not find any material against Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office towards misappropriation of money by him. According to the learned counsel the statement of appellant Basudeb Mukherjee, was not inculpatory relating to embezzlement money by him but against the Asit Barant Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office. According to learned counsel representing appellant Basudeb Mukherjee, Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned order of conviction and sentence. Reliance is placed by him on the decisions of Janeshwar Das Aggarwal vs. State of U.P. reported in AIR 1981 SC 1646 and R.K. Dalmia and others vs. The Delhi Administration reported in AIR 1962 SC 1821 . It is submitted by the learned counsel representing appellant Asit Baran Mallick in CRA 366 of 2011, that on November 03, 2006 Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office got the knowledge about the shortage of money, as claimed by P.W.1, but the same was not incorporated in the written complaint. According to the learned counsel P.W.1 was of preconceived mind and was biased as before inspection he concluded that appellant Asit Baran Mallick, Postal Assistant of Raghunathpur Sub-Post Office was guilty of misappropriation and prepared the written complaint before inspection and the said report of inspection was also not incorporated in the written complaint nor was produced before court during trial. According to the learned counsel submission of statements by both the appellants and undertaking by the appellant Asit Baran Mallick to repay the money, as claimed by P.W.1, also did not figure in the written complaint nor there was any such reflection in the complaint about the seizure of Account book and the endorsement made therein. According to him the alleged written statements/confession of the appellant Asit Baran Mallick was not made voluntarily, so no reliance can be placed on it in holding Asit Baran Mallick guilty of the offence of misappropriation of government money while that of Basudeb Mukherjee is not inculpatory implicating himself for embezzlement of money, so this can not be used against co-accused. According to learned counsel Asit Baran Mallick, Postal Assistant of Raghunathpur Sub-Post Office was working under Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office and he used to hand over cash to Basudeb Mukherjee, so it was Sub-Post Master of Raghunathpur Sub-Post Office who was answerable. According to learned counsel treasurers cash book, error book were not seized nor the same was inspected or produced before the court. According to him commission of offence is not proved against the appellant Asit Baran Mallick. According to learned counsel representing appellant Asit Baran Mallick also Ld. Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned order of conviction and sentence. Reliance is placed by the learned counsel representing appellant Asit Baran Mallick on the decisions of Ashish Batham vs. State of Madhya Pradesh reported in 2003 C Cr LR (SC) 147, Inspector of Customs, Akhnoor J & K vs. Yaspal and Anr. reported in 2009 Cr L J (SC) 225, Vinod Solanki vs. Union of India and Anr. reported in 2009 C Cr LR (SC) 700 and Biswa Nath Aggarwal vs. Meena Gupta and others reported in 2000 C Cr LR (SC) 284. It is submitted by the learned counsel representing the state that genesis of case starts from Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office and two confessional statements one by each accused-appellants. reported in 2009 C Cr LR (SC) 700 and Biswa Nath Aggarwal vs. Meena Gupta and others reported in 2000 C Cr LR (SC) 284. It is submitted by the learned counsel representing the state that genesis of case starts from Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office and two confessional statements one by each accused-appellants. According to the learned counsel representing the state, on November 02, 2006 appellant Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office himself discovered more than 14/15 lakhs and on November 03, 2006 he asked appellant Asit Barant Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office to send the same to Adra Post Office but only 10 lakhs were given and as such Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office became suspicious and checked the cash and found shortage of money. According to him Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office also being joint custodian of the accounts he must be held responsible as being hand in glove with the treasurer. According to the learned counsel representing the state commission of offence against Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office is proved beyond doubt as there was no denial about the presence of excess money on previous day in Raghunathpur Sub-Post Office as detected by Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office nor there was any such denial that Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office asked Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office to send the excess money to Adra Post Office. We have heard the learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of prosecution witnesses, the materials-on-record including the FIR, written statements/confessions, seizure list, rough sketch map, charge-sheet, charge framed amongst other materials for examining the propriety of the impugned judgment and order of conviction and sentence. According to the prosecution, appellant Basudeb Mukherjee was working as Sub-Post Master and head of office of Raghunathpur Sub-Post Office and appellant Asit Baran Mallick was working as Postal Assistant-cum-treasurer of the said Sub-Post Office at the relevant period and the said Sub-Post Office was under the administrative control of Superintendent of Post Offices, Purulia Division and at the relevant period P.W.1 was working as Superintendent of Post Offices, Purulia Division. This fact has not been disputed or denied by the appellants. This fact has not been disputed or denied by the appellants. It is the evidence of P.W.1 that on November 4, 2006 after getting information from appellant Basudeb Mukherjee about shortage of fund at his post office he went there on the same day and on physical verification of the cash and postal stamps he found there was shortage of Rs. 6,71,247.45p. Accordingly, he lodged the complaint (Ext.3) against both the appellants at the Raghunathpur P.S. It is also his evidence that after verification of the cash and postal stamps of Raghunathpur Sub-Post Office both the appellants submitted their written statements (Ext.1/4, 2/4) in his presence and in presence of other two postal staff Niranjan Khan (P.W.2) and Deb Kumar Chakraborty (P.W.3). He identified both the appellants during recording his statements before the court. He was cross-examined by the defence at length but nothing has been elucidated in his cross-examination to discredit his statements. On the other hand it has come out during his cross-examination that at the relevant point of time Asit Baran Mallick was in charge of additional duty of selling I.P.Os and handling M.Os. etc. It had also come out during his cross-examination that he got scent of misappropriation of money on November 3, 2006 at 9 P.M from the appellant Basudeb Mukherjee and after getting phone call from Basudeb Mukherjee at 11.30 A.M on November 4, 2006 he went to Raghunathpur Sub-Post Office along with his stenographer as well as C.I., Goutam Patra (P.W.4) for physical verification and verified the registers like S.D. AccountBook, treasurer's cash book, stamp balance register and other relevant documents/papers. During cross-examination he has affirmed that after verification of Raghunathpur Sub-Post Office both the appellants submitted him their written statements which was subsequently handed over to the police. He denied the defence suggestion that Asit Baran Mallick was compelled to make the statements in writing. The above statements of P.W.1 find corroboration from the other postal staff namely P.W.2, P.W.3 and P.W.4. P.W.5 narrated the seizure of the statements of the appellants bypolice. The elaborate cross-examination of the above witnesses on behalf of the appellants/accused persons have failed to discredit their testimony in any manner whatsoever. The above statements of P.W.1 also find corroboration from the statements of the accused-appellant Basudeb Mukherjee recorded u/s 313 Cr.P.C. while there was bald denial from Asit Baran Mallick. The elaborate cross-examination of the above witnesses on behalf of the appellants/accused persons have failed to discredit their testimony in any manner whatsoever. The above statements of P.W.1 also find corroboration from the statements of the accused-appellant Basudeb Mukherjee recorded u/s 313 Cr.P.C. while there was bald denial from Asit Baran Mallick. So from the above it is apparent that it was the appellant Basudeb Mukherjee, Sub-Post Master of Raghunathpur Sub-Post Office, who first detected shortage of fund at his post office and immediately reported this to his higher Authority(P.W.1) who then came and made physical verification of the cash and postal stamps and found shortage of Rs. 6,71,247.45p and thereafter lodged the complaint (Ext.3) at the P.S. It also appears from the record that P.W.6, on receipt of the said complaint, drawn up the F.I.R (Ext.6) and took up investigation of the case and during investigation visited place of occurrence, prepared rough sketch map with indext(Ext.7), examined available witnesses, seized the Accounts book of Raghunathpur Sub-Post Office (Mat Ext.I) as also the statements of the appellants (Exts. 1/4, 2/4) by seizure lists (Exts.4 & 5), apprehended the appellants and forwarded them to court and on December 11, 2006 made over the case docket to D.E.B. Officer as per direction of S.P. Purulia while P.W.7 is the I.O. who submitted charge-sheet against the appellants. The Ld. Court below took into consideration the evidences of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5, the written statements/confessions of the appellants (Exts. 1/4, 2/4), and the entries made in the Raghunathpur Sub-Post Office Accounts register (Mat Ext. I) to arrive at the conclusion that the appellant Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office has embezzled Rs. 6,71,247.45p of the Raghunathpur Sub-Post Office and accordingly hold him guilty of the offence punishable under Section 409/34 IPC and convicted and sentenced him under the above provisions of law. The Ld. Court below also held appellant Basudeb Mukherjee guilty of the said offence being Sub-Post Master and joint custodian of the postal money of the said post office and convicted him accordingly. The Ld. Court below also held appellant Basudeb Mukherjee guilty of the said offence being Sub-Post Master and joint custodian of the postal money of the said post office and convicted him accordingly. The first ground of attacking the impugned judgment is that P.W.1, complainant, was of preconceived mind and was biased as before inspection he concluded that appellant Asit Baran Mallick was guilty of misappropriation of government money and lodged the complaint and that too without disclosing of the report of inspection, submission of statements/confessions by the appellants and seizure of Account book in the FIR. It is the settled proposition of law that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. Reference may be made to the decision of Jitender Kumar Vs. State of Haryana, reported in (2012) 6 SCC 204 and the relevant portions of the above decision are quoted bellow : “18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference is this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P.” Regarding the plea of biasednes of P.W.1, we find from the record that at the relevant period appellant Asit Baran Mallick was working as treasurer and was custodian of cash, stamps etc. and appellant Basudeb Mukherjee was the joint custodian and it was Basudeb Mukherjee who detected shortage of money of the post office and then and there reported this to the higher authority. Furthermore, the said complaint was lodged not only against Asit Baran Mallick but also against Basudeb Mukherjee and that too only after inspection of the S.D. Account book, treasurer's cash book, stamp balance register and other relevant papers and documents and on physical verification of the cash etc. by P.W.1 himself. So, in view of the above settled principles of law, the plea of biasedness of P.W.1 does not hold good. Regarding non disclosure of the report of inspection, submission of statements by the appellants, seizure of Account book etc. in the complaint/F.I.R., it is not in dispute that the complaint had not disclosed those things but P.W.1, Superintendent of Post Offices, Purulia Division has specifically stated on oath that after getting information of embezzlement from the Basudeb Mukherjee,Sub-Post Master, Raghunathpur Sub-Post Office he rushed there and made physical verification of the cash and postal stamps and found shortage of Rs. 6,71,247.45p and then lodged the complaint. Thereafter police came and apprehended the appellants and also seized the Accounts book. It was also his specific statements that after verification, both the appellants submitted their written statements (Ext.1/4, 2/4) in his presence and in presence of P.W.2 and P.W.3 which were seized by police. All these have been corroborated by other postal staff namely P.W.2, P.W.3, P.W.4 and P.W.5. So non disclosure of those documents in the complaint/F.I.R. cannot be a ground for disbelieving the above witnesses in view of the proposition of law that law would not expect mentioning of minutest details in FIR. Therefore, our interference with the impugned judgment is not required on the above grounds. So non disclosure of those documents in the complaint/F.I.R. cannot be a ground for disbelieving the above witnesses in view of the proposition of law that law would not expect mentioning of minutest details in FIR. Therefore, our interference with the impugned judgment is not required on the above grounds. Regarding non seizure of treasurer's cash book etc., we find that the learned Court below took into consideration the evidences of prosecution witnesses including the evidence of PW 1, Superintendent of Post Offices, Purulia Division and other materials on record to come to a conclusion that in view of the strong and reliable evidences on record prosecution case will not fail because of defect in investigation. P.W.1, Superintendent of Post Offices, Purulia Division has specifically stated on oath that after getting information of shortage of fund from Basudeb Mukherjee, Sub-Post Master, Raghunathpur Sub-Post Office he rushed there and made physical verification of the cash and postal stamps and found there was shortage of Rs. 6,71,247.45p and then both the appellants submitted their written statements to that effect. During cross-examination he affirmed the same and stated that he verified registers like S.D. Account Book, treasurer's cash book, stamp balance register and other relevant papers/documents. This has been corroborated by other postal staff namely P.W.2, P.W.3, P.W.4 and P.W.5 and their evidence remained unshaken during cross-examination. Therefore, taking into consideration the evidence of PW.1, P.W.2, P.W.3, P.W.4 and P.W.5, we are of the opinion that in view of the above discussion and observation, we do not find any fault in the decision making process of the trial Court in this regard. With regard to the written statements/confessions of the appellants, we find that P.W.1 had clearly stated during his cross-examination of behalf of Asit Baran Mallick that after verification of the accounts of Raghunathpur Sub-Post Office both the appellants handed over their respective statements to him which were written by them separately and denied that Asit Baran Mallick was compelled to make such statements in writing. P.W.2 and P.W.3, other postal staff of Raghunathpur Sub-Post Office who were present when P.W.1 made inspection there, had also supported the above version of P.W.1 and clearly stated that both the appellants gave their statements relating to shortage of fund in their presence. P.W.2 was challenged by the defence that accused persons were forced to prepare those statements which he did not agree. P.W.2 was challenged by the defence that accused persons were forced to prepare those statements which he did not agree. Interestingly no such suggestion was put to P.W.3 the other postal staff. P.W.4, Inspector of Post Offices, Public Grievance, Purulia Division who accompanied P.W.1 to Raghunathpur Sub-Post Office had also corroborated P.W.1 and denied that Asit Baran Mallick was forced to make such statements in writing. Ext.2/4, shows admission of embezzlement of money of Raghunathpur Sub-Post Office by appellant Asit Baran Mallick. This also find corroboration from the statements of other appellant recorded during his examination u/s 313 Cr.P.C. Thus, we find from the above that the statements of P.W.1 with regard to the written statement/confession of Asit Baran Mallick corroborated by P.W.2, P.W.3 and P.W.4 also find support from Ext.2/4. In such circumstances there appears no reason to disbelieve their statements. From Ext.1/4 it appears that appellant Basudub Mukherjee has narrated the story leading to his detection of shortage of fund in Raghunathpur Sub-Post Office and the steps taken by him in this regard and also about submission of confessional statements by Asit Baran Mallick, treasurer of the said post office but as his statement is not inculpatory regarding embezzlement of money by him, the same can not be used against the co-accused in view of the settled principles of law. Therefore, the propriety of the impugned judgment cannot be questioned on the above ground. With regard to the misappropriation of the government money, we find from the evidence on record that at the relevant period appellant Basudeb Mukherjee was working as Sub-Post Master and head of office of Raghunathpur Sub-Post Office and appellant Asit Baran Mallick was working as Postal Assistant-cum-treasurer of the said Sub-Post Office and it was Basudeb Mukherjee who first detected shortage of fund and immediately reported this to his higher Authority (P.W.1) who then came and made physical verification and verified the registers like Account Book, treasurer's cash book, stamp balance register and other relevant documents/papers and found shortage of Rs. 6,71,247.45p and then both the appellants submitted their respective statements (Exts.1/4 & 2/4) to that effect to P.W.1. 6,71,247.45p and then both the appellants submitted their respective statements (Exts.1/4 & 2/4) to that effect to P.W.1. In his written statements (Ext.1/4) appellant Basudub Mukherjee has narrated the story leading to his detection of shortage of fund in Raghunathpur Sub-Post Office and the steps taken by him in this regard and also about confession of Asit Baran Mallick, treasurer of the said post office while Ext.2/4, shows admission of embezzlement of money of Raghunathpur Sub-Post Office by appellant Asit Baran Mallick. P.W.1 had specifically stated on oath that Asit Baran Mallick submitted a written statement making confession that he had embezzled government money to the tune of Rs. 6,71,247.45p and also made an appeal to him to grant him seven days time to repay the entire defaulcated money. During cross-examination he admitted that actually he got scent of misappropriation of money to the tune of Rs.6,60,986/- on 3.11.2006 from Basudeb Mukherjee. He, however, did not agree to the defence suggestion that Basudeb Mukherjee was not at all responsible for misappropriation of government money. P.W.6 who after receipt of the complaint from P.W.1 did major part of the investigation had admitted that he did not find any tangible material against the appellant Basudeb Mukherjee. P.W.7 also admitted that P.W.6 did major part of the investigation and he only examined P.W.3 and thereafter submitted charge-sheet after obtaining permission from superior. During examination u/s 313 Cr.P.C also appellant Basudeb Mukherjee has narrated the entire circumstances leading to detection of anomaly in the accounts and embezzlement of government money by the treasure Asit Baran Mallick. But from the statements of Asit Baran Mallick recorded u/s 313 Cr.P.C. it appears that save and except taking the plea of innocence and making statements under compulsion has not denied about inspection made by P.W.1 of the account of Raghunathpur Sub-Post Office on 4.11.2006 on getting intimation from appellant Basudeb Mukherjee and detection of shortage of fund to the tune of Rs. 6,71,247.45p there though admittedly at the relevant time he was acting as Postal Assistant-cum-treasurer in that sub-post office. He has even not put any blame upon Basudeb Mukherjee that he was also involved in the commission of offence. So, the entire circumstances lead towards appellant Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office in misappropriation of the government money by him. He has even not put any blame upon Basudeb Mukherjee that he was also involved in the commission of offence. So, the entire circumstances lead towards appellant Asit Baran Mallick, Postal Assistant-cum-treasurer of Raghunathpur Sub-Post Office in misappropriation of the government money by him. In view of the above we do not find any fault in the decision making process of the trial Court in this regard. Now in so far as the involvement of the appellant Basudeb Mukherjee, Sub-Post Master, Raghunathpur Sub-Post Office towards embezzelement was that he did not count the cash on daily basis but there was no evidence to that effect. On the other hand from the evidence-on-record it appears that it was he who first detected anomaly in the accounts and immediately reported this to his higher authority. It may be true that he was the joint custodian of cah etc. but nowhere there is allegation that Basudeb Mukherjee defaulcated the money and/or that he was the abettor. Even Asit Baran Mallick, treasurer had not put any blame upon Basudeb Mukherjee that he was also involved in the commission of offence. P.W.6 who did major part of the investigation also did not find any tangible material against him. It will not be out of context to observe that failure on the part of the appellant Basudeb Mukherjee to count the cash on daily basis might have been considered as dereliction of duty in view of his conditions of service which could be taken care of by the authority taking disciplinary action against him in accordance with law. But considering the charge framed against him in the criminal case, we are not inclined to accept that such alleged irregularity and/or dereliction of duty proved the charge of criminal breach of trust as custodian of the postal money of Rs. 6,71,247.45 (Rupees six lakhs seventy one thousand two hundred forty-seven and paise forty-five only) against him beyond any reasonable doubt, the standard of proof being proved beyond any reasonable doubt. In view of this unsatisfactory nature of evidence, it is impossible for us to sustain the conviction of the appellant Basudeb Mukherjee. In the instant case thus, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established against appellant Basudeb Mukherjee. Under the circumstances ld. In view of this unsatisfactory nature of evidence, it is impossible for us to sustain the conviction of the appellant Basudeb Mukherjee. In the instant case thus, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established against appellant Basudeb Mukherjee. Under the circumstances ld. Court below was not justified in holding that appellant Basudeb Mukherjee was also involved in commission of the offence u/s 409 I.P.C. along with Asit Baran Mallick. As such the impugned judgment require our interference only in so far as the conviction of appellant Basudeb Mukherjee is concerned. In view of the above, we find no difficulty in reaching to the conclusion that the conviction of the appellant Asit Baran Mallick under section 409 IPC and the sentence imposed thereunder is fully justified. We, therefore, dismiss the appeal being CRA no. 366/2011 and affirm the conviction and sentence imposed on the appellant Asit Baran Mallick and allow the appeal being CRA no. 315/2011 and the conviction and sentence passed upon appellant Basudeb Mukherjee are set aside and he is acquitted from the charge framed against him. Appellant Basudeb Mukherjee be released forthwith unless his detention is required in any other case. Copy of this judgment along with the lower court records be sent down to the trial court immediately by special messenger for information and taking appropriate steps. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. I agree.