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Tripura High Court · body

2016 DIGILAW 64 (TRI)

Sachindra Das v. State of Tripura

2016-03-09

S.C.DAS

body2016
ORDER : 1. This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order dated 09.12.2011, passed by learned Addl. Sessions Judge, Dharmanagar, North Tripura, in Criminal Appeal No. 40(4)/2011 whereunder the learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence, 1st dated 31.10.2011, passed by learned Judicial Magistrate Class, Kanchanpur, North Tripura in Case No. GR 130/2010 against accused-petitioner Sachindra Das, who was charged in the criminal trial for commission of offence punishable under Section 409 of IPC and learned Magistrate found him guilty of the charge and sentenced him to suffer R.I. for two years and to pay a fine of Rs.10,000/- in default of payment to suffer R.I. for one month. 2. Heard learned counsel, Mr. G.S. Bhattacharjee for the accused-petitioner and learned Addl. P.P., Mr. R.C. Debnath for the State-respondent. 3. Prosecution case is that the accused Sachindra Das was working as Branch Postmaster of Anandabazar Branch Post office. He was entrusted 5(five) cheques by the Chairman of Anandabazar Village Committee (P.W.8) and the Panchayat Secretary of the said Village Committee (P.W.22) to draw an amount of Rs.3,30,600/- from Tripura Gramin Bank, Dasda Branch to disburse the amount to the workers of NREGA (National Rural Employees Guarantee Act). On 17.06.2010, the accused Sachindra Das with police escort went to Dasda, obtained signature of Sub Postmaster of Dasda Sub Post Office (P.W.24) and thereafter encashed those cheques from Tripura Gramin Bank, Dasda Branch and collected cash amount of Rs.3,30,600/- from the Bank. The accused hired a vehicle while going to Dasda and the security personnel (P.W.12 and two other security persons) of Anandabazar SPO Camp accompanied the accused. While on way to Dasda and back, he stopped the vehicle and entered in a house and passed some time there and thereafter he came to Anandabazar Branch Post Office and disbursed Rs.24,000/- to some of the NREGA workers during 3:00 p.m. to 4:00 p.m. on 17.06.2010 and thereafter he stopped payment. P.W.3 was the Postman of the said Branch Post Office and P.W.7 was a person of Anandabazar Village Committee, attached with the accused to help in the disbursement of payment to the NREGA workers. P.W.3 was the Postman of the said Branch Post Office and P.W.7 was a person of Anandabazar Village Committee, attached with the accused to help in the disbursement of payment to the NREGA workers. 3.1 It is the case of the prosecution that the accused being a Postmaster of a Branch Post Office was not authorized to keep in custody more than Rs.2000/- in the Branch Post Office. He was cautioned by P.W.24, the Sub Postmaster of Dasda Post Office while putting his signature in the cheques as to whether the accused will be able to disburse the entire amount or not and that he should not withdraw such huge amount but the accused assured P.W.24 i.e. the Postmaster of the Sub Post Office, Dasda that he will be able to disburse the amount. 3.2 The Branch Post Office was located at Anandabazar market area and it was in a hut measuring 7X14 feet with bamboo fencing having one door and two windows made of wood and with GCI sheet roof. There was no iron grill or rod in the windows. On 18.06.2010 in the early morning P.W.2 Sanchita Deb found back side window of the Post Office in a broken condition and the gate also open and she immediately reported it to her husband (P.W.1) Himangshu Deb who immediately informed the accused and the accused rushed to the spot and thereafter informed P.Ws 8 and 22 that an amount of Rs.3,06,600/- had been stolen. The accused stated that he had drawn Rs.3,30,600/- for making payment to 560 NREGA workers and he could disburse only Rs.24,000/- to 80 NREGA workers and the rest amount of Rs.3,06,600/- was kept in a trunk inside the Post Office under lock and key and thereafter left the post office keeping the door under lock and key. The accused stated that the amount had been stolen. 3.3 A telephonic information was sent to O.C., Kanchanpur P.S. and accordingly, O.C. of the P.S. along with P.W. 23, S.I. Parendra Reang rushed to Anandabazar Sub Post Office when P.W.22, the Panchayat Secretary lodged a written FIR alleging the fact against unknown miscreants and accordingly, Kanchapur P.S. Case No.41/2010 under Sections 457/380 IPC was registered and S.I. Parendra Reang (P.W.23) took up investigation. 3.4 In course of investigation on the spot I.O. recorded the statements of some of the witnesses, seized the broken trunk and took finger print from the broken trunk as well as the accused-petitioner and some others and thereafter took the accused-petitioner to P.S. for interrogation and subsequently arrested the accused-petitioner. After investigation, charge-sheet was submitted against the accused for commission of offence punishable under Section 409 of IPC. 4. Cognizance was taken on the basis of the police st report and in course of trial, learned Judicial Magistrate Class framed charge against the accused under Section 409 of IPC and the accused pleaded not guilty. 5. Prosecution examined 25 witnesses to prove the charge and also exhibited 17 items of document/material. The list is attached with the judgment passed by the learned Judicial Magistrate 1st Class, Kanchanpur as appendix. 6. Learned counsel, Mr. Bhattacharjee has submitted that the judgment and order of conviction and sentence under Section 409 of IPC is based on no legal evidence. According to Mr. Bhattacharjee, this is a rare case where the trial Court as well as the appellate Court failed to appreciate the evidence on record and arrived at a wrong finding totally misreading the evidence. He has submitted that the trial Court has drawn some inference from the statements of the witnesses and without any proof of criminal misappropriation arrived at a finding of guilt of the accused and accordingly convicted and sentenced him. The appellate Court also failed to construe the evidence in its proper perspective and upheld the judgment of the trial Court mechanically. There is no evidence to prove the criminal breach of trust as defined in Section 405 of IPC and hence, the judgment and order of conviction and sentence cannot sustain. 7. Learned Addl. P.P. has submitted that the evidence of P.Ws 3, 7 and 12 would show that in the given facts and circumstance of the case, it is well proved that the accused has committed the offence and none else. Only to escape from the punishment the accused has put up a story of theft in the Branch Post Office. The concurrent finding of the trial Court and the appellate Court need not be interfered and evidence is not required to be re-appreciated. 8. Only to escape from the punishment the accused has put up a story of theft in the Branch Post Office. The concurrent finding of the trial Court and the appellate Court need not be interfered and evidence is not required to be re-appreciated. 8. Normally this Court while exercising revisional jurisdiction is not required to re-appreciate the evidence on record unless it is alleged and found that there is non appreciation or mis-appreciation of the evidence on record by the Courts below. This court is prima facie required to see the correctness, legality and propriety of the findings recorded by the Courts below and the regularity of the proceeding before such Courts below. While it is alleged that there was mis-appreciation and/or non appreciation of the evidence on record, to see correctness, legality and propriety of the finding, this Court is required to go through the evidence as otherwise it will not be possible to arrive at a correct finding. 9. Section 409 of IPC prescribes punishment for criminal breach of trust by a public servant etc. The provision reads as follows:- “409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 10. The above provision clearly contemplate that the prosecution should prove— (i) the accused was a public servant. (ii) in the capacity as such public servant the accused was entrusted with certain property or that he had dominion over such property. (iii) the accused committed criminal breach of trust in respect of such property. 11. The word ‘criminal breach of trust’ is defined in Section 405 of IPC thus— 405. (ii) in the capacity as such public servant the accused was entrusted with certain property or that he had dominion over such property. (iii) the accused committed criminal breach of trust in respect of such property. 11. The word ‘criminal breach of trust’ is defined in Section 405 of IPC thus— 405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust.” 12. To prove the ingredients of criminal breach of trust, the ingredients of dishonest misappropriation is to be proved and the word ‘dishonestly’ is defined in Section 24 of IPC which reads thus— 24. “Dishonestly”.—Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly.” 13. Similarly, to prove dishonestly, wrongful gain and wrongful loss has to be proved which is defined in Section 23 of IPC which reads thus— “23. “Wrongful gain”.—“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. “Wrongful loss”.—“Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled. Gaining wrongfully, losing wrongfully.—A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.” 14. Gaining wrongfully, losing wrongfully.—A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.” 14. Out of the witnesses examined by the prosecution, P.Ws 1 and 2 were the nearest residents of the Branch Post Office and P.W.2 first found the window of the Post Office lying broken and she immediately informed her husband P.W.1 who rushed to the house of the accused and informed him about the condition of the Post Office and thereafter, the accused went to the post office, opened the lock of the door and found the trunk kept in the post office was broken and the money which he alleged to have kept in the trunk was missing. 15. It is an admitted position that the accused immediately informed P.Ws 8 and 22 i.e. the Chairman and the Panchayat Secretary of Anandabazar ADC village and they rushed to the spot. The sum and substance of the evidence of P.Ws 8 and 22 is that they signed five cheques for an amount of Rs.3,30,600/- and entrusted the cheques to the accused who was the Branch Postmaster of Anandabazar Branch Post office to draw the amount and to disburse the amount to the NREGA workers. They stated that on 18.06.2010 in the morning they were informed by the Postmaster that the money meant for payment to NREGA beneficiaries were stolen. P.W.22 lodged the written FIR and he proved the FIR, marked as Exbt.14/1. 16. It is an admitted position that the accused along with three security personnel with a hired vehicle on 17.06.2010 in the morning left for Dasda to draw the amount. The evidence of P.W.12 is therefore important and we may reproduce here his statement as recorded by learned Magistrate which reads as follows: “On 17.6.2010 I was posted as the In-Charge of Hejacherra SPO Camp. On that date I went with the Post Master of the Anandabazar Post Office on security duty while he went to bring the money for NREGA payment from the bank at Dasda. We started from Anandabazar at 1005 a.m. There were two more SPOs who accompanied as Security. On that date I went with the Post Master of the Anandabazar Post Office on security duty while he went to bring the money for NREGA payment from the bank at Dasda. We started from Anandabazar at 1005 a.m. There were two more SPOs who accompanied as Security. The Post Master arranged for a vehicle wherein we travelled to the bank at Dasda. On our way to the bank the Post Master stopped at a house and went inside the said house and stayed there for five minutes and thereafter on our way also stopped at the Dasda Sub-Post Office wherein he spent some time. In each of those occasion we, the security personnel were inside the vehicle and did not alight. On our way back to Anandabazar Post Office from the bank when the Post Master already withdrawn money from the bank again stopping the vehicle he went inside the Dasda Sub-Post Office keeping us in the vehicle for a while and thereafter also stopping the vehicle and keeping we, the Security Personnel inside the vehicle he went inside the earlier said house at Dasda and spent some time there. While he went inside the Dasda Sub-Post Office on our way back to Anandabazar from the bank it was about 1130 a.m. The money withdrawn by the Post Master from the bank was kept by him in a black bag. While the Post Master went inside the Dasda Sub-Post Office or the said house he went inside with the said bag. On our return to Anandabazar the Post Master went inside the said Post Office and we, the Security Personnel left the place keeping the Post Master at the said Post Office. The name of the Post Master is Sri Sachindra Das who is present on the dock today. Cross: We reached Anandabazar Post Office on our return from the bank at about 02.00 p.m. I do not know where the Post Master used to keep money at the Post Office.” 17. P.W.3 was the Postman of the Branch Post Office of accused and P.W.7 was a person deputed by the Village Committee to assist the accused in disbursing the amount to NREGA workers. The depositions of those two witnesses are reproduced hereunder for better appreciation. “P.W.3 On 17.6.2010 I was posted as the Postman at Anandabazar Branch Post Office. P.W.3 was the Postman of the Branch Post Office of accused and P.W.7 was a person deputed by the Village Committee to assist the accused in disbursing the amount to NREGA workers. The depositions of those two witnesses are reproduced hereunder for better appreciation. “P.W.3 On 17.6.2010 I was posted as the Postman at Anandabazar Branch Post Office. On that date Sri Sachindra Das was the Post Master of the said Post Office. On 17.06.2010 payments were made to the beneficiaries in the Post Office. I was present at the time of making payment to the beneficiaries. The payment was made to the beneficiaries within 3.00 p.m. to 4.00 p.m. On that date all the beneficiaries could not be paid. Post Master told the beneficiaries who could not be paid to come on the next day to receive payment. When I left the Post Office at about 4.00 p.m., the Post Master and one Sri Ramendra Raha were there at the Post Office. Sri Ramendra Raha used to help in the official work at the Post Office. The Chairman, Anandabazar Village Committee kept Sri Ramendra Raha at the Post Office to help in the official work during payment to the beneficiaries. The keys of the locks of the Post Office used to remain with the Post Master, Sri Sachindra Das. I left the Post Master and Sri Ramendra Raha inside the Post Office. Next day while I was coming to the Post Office at the beginning of my duty hour I heard people in the market were talking about theft in the Post Office. As I reached the Post Office I could come to know from the Post Master that Rs.306600/- was stolen from the Post Office. The said money was meant for making payment to the beneficiaries. I was told by the Post Master that the said money was stolen from the box at the Post Office. There are one Steel almirah and a trunk at the Post Office. The walls of the Post Office were made of bamboo and the windows and doors were wooden. The roof was of GI sheet. There were no grills or rods in the windows at the Post Office. There was no Night Guard at the Post Office. The Post Master was very worried and was concern about the money, on the next day, after the said theft. The roof was of GI sheet. There were no grills or rods in the windows at the Post Office. There was no Night Guard at the Post Office. The Post Master was very worried and was concern about the money, on the next day, after the said theft. The money was transacted at the Post Office by the Post Master himself. This is the said trunk of the Post Office marked as Ext-I on identification. The said Post Master is present on the dock today. Cross: I could come to know about the occurrence of theft from the Post Master. On my reaching the Post Office I could see that the steel trunk of the Post Office was broken. I did not know where the money which was stolen was kept.” “P.W.7 I was engaged by the local Gaon Shabha to assist the Post Master for making payment for NREGA work. On 17.06.2010 some payments were made for NREGA work. The Post master went to the Bank to bring money for payment instructing me to prepare the papers thereof. I prepared the papers and on return of the Post Master from the Bank payment were made to the beneficiaries. On that date 80 people were given payment @ Rs.300/- per person. The payment was made till 04.00 pm. The rest of the beneficiaries were asked to come on the next date to receive payment. The Postal Peon left the post office before I left saying that he was not feeling well. After 04.00 p.m., I also told the Post Master that I may be allow to go. The Post Master agreed and told me that he would go after a while closing and locking the doors. I left as the Post Master allowed me to go. Usually the money meant for ward wise payment of NREGA work is made fully. But on 17.06.2010 full payment could not be made. The beneficiaries were first informed and the Post Master told them to wait and went to the Bank and on the arrival of the Post Master some of the beneficiaries were paid. The post master went to the Bank at 10.30 am and brought money from bank at about 02.30 pm. But on 17.06.2010 full payment could not be made. The beneficiaries were first informed and the Post Master told them to wait and went to the Bank and on the arrival of the Post Master some of the beneficiaries were paid. The post master went to the Bank at 10.30 am and brought money from bank at about 02.30 pm. On the next morning i.e. on 18.06.2010 while I went to the post office I saw police personnel were there at the post office from whom I could come to know that Rs.3,06,600/- was stolen from the post office. In my opinion such huge amount of money should not have been kept in the post office since the walls, doors and windows of the post office were not strong enough. I never saw earlier that the Post Master left any unpaid sum of money at the Post office. I did not see whether the postmaster kept the money inside the trunk on 17.06.2010 as I left earlier to the Post Master. The said Post Master is present on the dock today. Cross: About 6/7 months earlier to the date of occurrence I was engaged to assist the post master for the payment for NREGA work. In the trunk the papers relating to NREGA payment were kept. I cannot say on 17.06.2010 where the unpaid amount of money for NREGA payment was kept by the post master. I could come to know from police on 18.06.2010 that money was stolen from the trunk at the post office.” 18. P.W.24 was the Sub-Postmaster of Dasda Sub Post Office and his deposition is also very material which I intend to reproduce and it reads as follows: “On 17.6.2010 I was posted at Dasda Sub-Post Office as a Sub-Post Master. Anandabazar Branch Post Office is under the jurisdiction of Dasda Sub-Post Office. Sri Sachindra Lal Das was the Branch Post Master of Anandabazar Branch Post Office on the said date. On that date Sri Das got 05(five) cheques of total amount of Rs.3,30,600/- encashed from Dasda Gramin Bank and made necessary entries in my Sub-Post Office after withdrawal of money from the Bank. The said money was meant for payment of beneficiaries under NREGA scheme. The cheques were issued by Anandabazar ADC Village Panchayat signed by the Chairperson and the Panchayat Secretary thereof. The said money was meant for payment of beneficiaries under NREGA scheme. The cheques were issued by Anandabazar ADC Village Panchayat signed by the Chairperson and the Panchayat Secretary thereof. I asked Sri Das whether could he made the payment of said amount on that date itself to which Sri Das answered that the beneficiaries were waiting to receive payment and he would be able to make entire payment on that date. The huge amount of money as withdrawn by Sri Das had to be kept in his own safe custody as the money withdrawn by whosoever in our department remains responsible for the same. The arrangement of security escort was availed by Sri Das for security of the withdrawn money. Sri Das was supposed to inform me if any unpaid amount remained in Anandabazar Post Office on that date. Usually the Branch Post Master give information of this sort to the Sub-Post Master. I was not informed by Sri Das regarding the keeping of unpaid amount of money in Anandabazar Branch Post Office on that date. On the following day Sri Das called me over phone and informed me that money was stolen from the Branch Post Office at Anandabazar in the previous night and payment of some amount of money could be made by him to the beneficiaries on the previous day. Usually the arrangement of payment of money under different schemes is made by the administration through Post Offices. The amounts to be disbursed through the Post offices are collected by the In-Charge of the Post Offices in such a way as to disburse the same without keeping any deposit in the Branch ensuring that no money is stagnated in course of payment. In my opinion Sri Das had to make payment of money in such a manner that no amount remained unpaid and there should not have been deposit thereof in his Branch. In my opinion nonpayment of such a huge amount points towards his wrong intention. The maximum limit of deposit at Anandabazar Branch Post Office is Rs.2,000/-. The Branch Post Master are solely responsible for any deposit kept in the Branch Post Office and for that matter any property of the Branch Post Office as per Departmental Rule. Furnishing a bond I received a seized Register of Disposal of NREGA Cheques. The maximum limit of deposit at Anandabazar Branch Post Office is Rs.2,000/-. The Branch Post Master are solely responsible for any deposit kept in the Branch Post Office and for that matter any property of the Branch Post Office as per Departmental Rule. Furnishing a bond I received a seized Register of Disposal of NREGA Cheques. I furnished the bond to the I/O. This is the said Bail Bond marked as Ext18 and this is the said Register of Disposal of NREGA Cheques marked as Ext-VIII. This is the relevant portion of the said Register marked as ExtVIII/1 on identification. Sri Sachindra Das is present on the dock today. Cross: I do not have knowledge regarding the fact what is the maximum amount of money a Branch Post Master can withdraw for disbursement as per Rules. I could come to know from Sri Das when he called me 18.06.2010 in the morning that money meant for NREGA payment was stolen from Anandabazar Branch Post Office. On being called the BDO, Dasda RD Block I went to the said Branch Post Office but I did not enter inside the Branch Post Office.” 19. P.W.20 was the Assistant Superintendent of Post Office at Dharmanagar and his deposition is also important to show as to what was the duty/obligation of the accused as a Branch Postmaster and the deposition of that witness reads thus: “On 26.06.2010 I was posted as the Asstt. Supdt. of Post Offices at Dharmanagar. On that date police seized (1) photocopy of memo of authorized balance corrected upto 1st day of July 2002, (2) Rules Book for Branch Post Offices, (3) Appointment letter of Sri Sachindra Das vide no. A2/Anandabazar B.O. dated 07.08.2006, (4) Formal appointment letter of Sri Das vide memo no. A2/Anandabazar dated 17.02.1998, (5) Provisional appointment letter of Sri Das vide memo No. H/A2/Anandabazar dated 21.02.1997 and (6) Specimen signature and thumb and finger impression card of Sri Das at the O/o the Supdt. of Post Offices, Dharmanagar in my presence being produced by me. I put my signature on the seizure lists as seizure witness. These are my signatures on the seizure lists marked as Ext. 5/2 and Ext. 6/2. In our department the In-charge of any branch of post office shall be responsible for money and all other belongings of that particular branch. I put my signature on the seizure lists as seizure witness. These are my signatures on the seizure lists marked as Ext. 5/2 and Ext. 6/2. In our department the In-charge of any branch of post office shall be responsible for money and all other belongings of that particular branch. For Anandabazar Branch Post office the maximum limit of deposit of money that could be kept in the said branch overnight was Rs.2000/- (rupees two thousand only) during the period around 17.06.2010. For the said deposit the Branch Post office would be liable for its safe custody. On 17.06.2010 Sri Sachindra Das was the Branch Post Master of Anandabazar Branch Post office. Sri Sachindra Das is present on the dock today. These are my signatures on the memo of authorized balance corrected upto 1st day of July, 2002 marked as Ext.7/1 (series). Cross: I cannot say whether there is any Rule under which any Branch Post Master can exceed his limit of deposit in his Branch in violation of Memo of Authorised Balance for whatever reason. I do not know from which date payment of NREGA was authorized through Anandabazar Branch Post Office.” 20. P.W.19 was the staff of P.W.20 in the office of the Asstt. Superintendent of Post Office at Dharmanagar and he proved the seizure list as well as the documents marked as Exbt.7 to Exbt.13. 21. P.Ws 16 and 17 were the staffs of Dasda Sub Post Office and are witnesses to the seizure of the documents from Dasda Sub Post Office and P.W.16 materially supported P.W.24. 22. P.W.18 was the Cashier of Tripura Gramin Bank and he stated that on 17.06.2010 the accused person presented five cheques and drew an amount of Rs. 3,30,600/-. 23. Undisputed, rather admitted facts are:- (i) The accused was working as a Branch Postmaster of Anandabazar Branch Post Office at the relevant point of time. (ii) He was entrusted five cheques signed by P.W.8 and 22 to draw an amount of Rs.3,30,600/- for payment to NREGA beneficiaries/workers. (iii) The payment was supposed to be made to 560 numbers of NREGA beneficiaries. (iv) On 17.06.2010 in the morning the accused hired a vehicle and he was accompanied with P.W.12, In-charge of Hejacherra SPO Camp, a security personnel and two other security personnel while he (accused) went to draw the amount from Dasda Gramin Bank. (iii) The payment was supposed to be made to 560 numbers of NREGA beneficiaries. (iv) On 17.06.2010 in the morning the accused hired a vehicle and he was accompanied with P.W.12, In-charge of Hejacherra SPO Camp, a security personnel and two other security personnel while he (accused) went to draw the amount from Dasda Gramin Bank. (v) The accused on way to Gramin Bank at Dasda entered in a house while on way to the bank and also while on way back from Dasda and passed a little time there keeping the security personnel in the vehicle on the road. (vi) While on way to bank the accused obtained signature of P.W.24 in the five cheques for drawing the amount from the bank. (vii) While on way back after drawing the amount the accused again entered in the Sub Post Office and made entry. (viii) The accused returned to his Sub Post Office at Anandabazar and during the period from 3:00 p.m. to 4:00 p.m. disbursed Rs.24,000/- to 80 NREGA beneficiaries. (ix) On 18.06.2010 in the early morning P.W.2 while cleaning her premises found the back side window of the Post office lying broken situated near her premises and she reported her husband (P.W.1) and P.W.1 immediately informed the accused who was also a resident of village Anandabazar. (x) The accused immediately informed the incident alleging theft to the Chairman of the Village Committee (P.W.8) and the Panchayat Secretary (P.W.22). (xi) Police Station was informed over telephone and the O.C. of the P.S. along with the P.W.23 went to the spot and at that time P.W.22 lodged the written FIR. 24. The trial Court had drawn certain inference from the evidence of the witnesses and arrived at a finding of guilt of the accused for criminal breach of trust. The circumstances which the trial Court considered were— (i) The accused was not supposed to draw such a huge amount even after caution by P.W.24. (ii) He assured P.W.24 that he will be able to disburse the amount and thereby obtained the signature of P.W.24 in the cheques and then drawn the amount. The circumstances which the trial Court considered were— (i) The accused was not supposed to draw such a huge amount even after caution by P.W.24. (ii) He assured P.W.24 that he will be able to disburse the amount and thereby obtained the signature of P.W.24 in the cheques and then drawn the amount. (iii) The accused as per Exbt.7, the guideline of the post office, was authorized to keep only Rs.2000/- in his custody but the accused though could not disburse the amount drawn by him allegedly kept the amount in the post office and that suggests that the accused with a view to misappropriate the amount did not take proper security measure and thereby dishonestly misappropriated it. (iv) The accused remained in the Post office and allowed P.Ws 3 and 7 to leave the post office before him and whether he kept the amount in the trunk or not, nobody knew. (v) The Post office house was in a bamboo fenced hut and the windows had no iron grill or rod and knowing fully well that the condition of the post office hut was not a secured place to keep such huge amount, the accused made a pre-tention that he kept the amount in the post office and presumption goes against the accused that he with a view to misappropriate the amount taken a plea of keeping the amount in the post office. 25. Learned Addl. Sessions Judge relied on the finding arrived by the learned Magistrate and upheld the judgment and order of conviction and sentence. 26. In a case of criminal breach of trust mens rea is an essential ingredient to prove the charge. The prosecution has to prove that the accused dishonestly misappropriated the amount or converted it to his own use. In the deposition of P.W.24 we find that the accused was cautioned by the witness before drawal of the amount and the accused assured him that he would be able to disburse the amount on that day. The accused could not disburse the amount but he did not inform it to P.W.24. It is not disputed that the accused was solely responsible for keeping the amount in his custody which was without disbursement on that day. The accused could not disburse the amount but he did not inform it to P.W.24. It is not disputed that the accused was solely responsible for keeping the amount in his custody which was without disbursement on that day. The accused while could not disburse the amount was supposed to inform P.W.24 and was supposed to take proper security measure for keeping the amount in safe custody but he alleged to have left it in the office in a trunk. This evidence by itself is not sufficient to draw an inference that the accused dishonestly misappropriated the amount or converted to his own use. 27. It is an admitted position that while on way to draw the amount from the bank the accused obtained signature of P.W.24 from the Sub Post Office, Dasda and again after drawal of the amount he entered in the Sub Post Office to make entry. So there is nothing to draw an adverse inference for visiting the Sub Post Office while on way to draw the amount and after drawal of the amount. 28. He has also visited a house while on way and back at Dasda and according to the accused as stated by him in his examination under Section 313, Cr.P.C., that he entered the house where his son used to reside while prosecuting studies and his son was ill and therefore, he went there. The son of the accused has been examined as P.W.21 but he made a clear statement that his father did not visit on 17.06.2010. This explanation of accused about his visit of his son in the house while on way to Dasda and back, therefore, raises some suspicion but such suspicion whatever grave, cannot take the place of proof about criminal breach of trust. In the evidence of P.W.20 I find that the accused was not supposed to keep in his custody in the Branch Post Office more than Rs.2000/-. It is also found in the evidence of P.W.24 that the accused did not obey the official instruction but allegedly kept the amount in the Post office and the plea of the accused is that it was stolen. Merely because the accused allegedly kept the amount in defiance of the official instruction cannot be an incriminating circumstance to arrive at a conclusion that he has committed the breach of trust. Merely because the accused allegedly kept the amount in defiance of the official instruction cannot be an incriminating circumstance to arrive at a conclusion that he has committed the breach of trust. It is a settled position of law that suspicion whatever grave cannot take the place of proof. 29. Nothing was recovered from the custody of the accused. There is also no evidence to show that the accused after closing the Post office had any time visited during the night. The back side window of the Post office was found lying broken in the early morning and immediately it was informed to P.Ws 8 and 22 and police was informed, FIR of theft was lodged but on 18.06.2010 itself the accused was taken by I.O. to P.S. where he was interrogated and arrested. In the evidence of I.O., I find that police dog was used to detect any clue but nothing could be detected. It appears that no investigation was diverted to enlighten whether there was any theft at all or not. There are no doubt some suspicious circumstances but those are not at all sufficient to hold or to arrive at a conclusion that the accused committed dishonest misappropriation of the amount drawn by him and thereby committed an offence of criminal breach of trust. 30. Learned counsel, Mr. Bhattacharjee has referred to a decision of the Apex Court in the case of Sardar Singh V. State of Haryana, reported in (1977) 1 SCC 463 . In that case the accused-appellant was posted as ‘Patwari’ in a revenue circle and he took up the charge pursuant to a memo prepared while taking the charge in respect of various books, documents and papers. Thereafter a departmental inquiry was initiated against him and he was placed under suspension. He was directed to hand over the charge to his successor but he failed to do so and thereafter by order of the Revenue Assistant the lock of his room was broken and a memorandum was prepared in respect of the books and documents found in his room which was handed over to his successor. The receipt book and an amount of Rs.26.50 paisa were not found for which he was charge-sheeted and found guilty of committing offence punishable under Section 409 of IPC. The Apex Court while deciding the appeal, in Para 2 of the judgment observed: “2. The receipt book and an amount of Rs.26.50 paisa were not found for which he was charge-sheeted and found guilty of committing offence punishable under Section 409 of IPC. The Apex Court while deciding the appeal, in Para 2 of the judgment observed: “2. The only question which arises for consideration in this appeal is whether the appellant could be said to have committed criminal breach of trust in respect of the receipt-book. There can be no doubt and that it is amply proved by the oral evidence on record read with the list Ex. PA, that the receipt book was entrusted to the appellant in his capacity as Patwari on November 6, 1967 when he took charge of his post. It must equally be taken to be established that the receipt book was not in the room of the appellant when the lock was broken open and charge was forcibly taken from him on December 29, 1967. Vide Ex. PF and PG. The receipt book was thus not returned by the appellant though he was bound to do so at the time of handing over of charge to his successor. But from this it does not necessarily follow that the appellant committed criminal breach of trust in respect of the receipt book. Section 409 can be invoked only if it can be shown that the accused being in any manner entrusted with property or with dominion over property in his capacity as public servant committed criminal breach of trust in respect of that property. The offence of criminal breach is defined in Section 405 and an essential ingredient of this offence is that the accused being in any manner entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. Here, as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. Here, as we have already pointed out, the appellant was admittedly entrusted with the receipt-book or in any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It is quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it. That, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under Section 409.” 31. In the case of Kailash Kumar Sanwatia V. State of Bihar, reported in (2003) 7 SCC 399 , the accused persons were handed over an amount of Rs.1,50,200/- for drawing two bank drafts and the amount was found missing from the cash counter of the bank for which the accused persons were held responsible and a criminal case was initiated against the accused persons under Section 409 of IPC. The trial Court held two accused persons guilty under Section 409 read with Section 34 of IPC and sentenced them. The convicts preferred appeal before the Sessions Court and the Sessions Court observed that the ingredients of offence were not proved. Revisional application was filed before the High Court challenging the judgment of the Additional Sessions Judge and it was held that the possibility of theft of money could not be ruled out. Challenging the judgment of the High Court appeal was preferred before the Apex Court and the Apex Court in Para 9 and 10 of the judgment observed— “9. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime. 10. In the instant case even if it was proved as contended by the learned counsel for the appellant, that money was entrusted which fact is borne out by the admitted case about missing of money from the cash counter of the bank, one factor which needs to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of the prosecution that money which was given to the accused-Gautam Bose and the cash peon to obtain bank drafts was taken away by accused-Gautam Bose or the cash peon Ganaori Sao. Because of an intervening situation, the disappearance of the cash due to theft by somebody else the bank drafts could not have been prepared and handed over to the appellant. Even if there is loss of money, the ingredients necessary to constitute criminal breach of trust are absent. If due to a fortuitous or intervening situation, a person to whom money is entrusted is incapacitated from carrying out the job, that will not bring in application of Section 405 IPC or Section 409 IPC, unless misappropriation, or conversion to personal use or disposal of property is established. Unfortunately, the courts below have not looked at the issues from these vitally relevant angles. The inevitable conclusion is that the accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy.” 32. In the present case, the accused being a public servant failed to discharge his duty with responsibility. The inevitable conclusion is that the accused persons cannot be convicted under Section 409 IPC. This, however, will not stand in the way of the appellant getting such relief as available in law otherwise by pursuing a suitable remedy.” 32. In the present case, the accused being a public servant failed to discharge his duty with responsibility. No doubt, the accused acted callously and negligently in the discharge of his official duty which amounts to dereliction in duty since the accused did not follow the official instruction. Such irresponsibility and callousness and negligence may be held as misconduct on the part of a public servant. But such negligence or callousness and/or dereliction of duty cannot be termed as a criminal offence to punish a person under Section 409 of IPC. 33. In the given facts and circumstances of the case, the accused is entitled to get benefit of doubt. 34. The revisional application is accordingly allowed. 35. The judgment and order of conviction and sentence dated 31.10.2011, passed by learned Judicial Magistrate 1st Class, Kanchanpur, North Tripura in case No. GR 130 of 2010 which is affirmed by learned Addl. Sessions Judge, North Tripura, Dharmanagar by judgment dated 09.12.2011 in Criminal Appeal No. 40(4) of 2011 are set aside. 36. The accused-appellant who is on bail is set at liberty. 37. The revisional application, accordingly, stands allowed and disposed of. 38. Send down the L.C. records along with a copy of this judgment.