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2016 DIGILAW 641 (CAL)

Jagat Narayan Roy v. State of West Bengal

2016-08-16

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2016
JUDGMENT : Debasish Kar Gupta, J. 1. This appeal is directed against order of conviction of the appellant punishable under Section 409 of the Indian Penal Code (hereinafter referred to as the I.P.C.) dated May 28, 2013 and sentence dated May 29, 2013 to suffer rigorous imprisonment for life and to pay a fine of Rs.10 lakh in default to suffer further rigorous imprisonment for 10 years, passed by the learned Special Judge, 2nd Court, Jalpaiguri in Special Case No.2 of 2011 arising out of Kotwali P.S. Case No.459 of 2011 dated June 8, 2011, G.R. No.2041 of 2011. 2. According to the prosecution case, on June 7, 2011 the shortage of cash to the extent of Rs.9 lakh 80 thousand only was detected at the time of closing of United Bank of India, Jalpaigury Branch (hereinafter referred to as the said Bank). In course of searching and reconciling the cash, it was detected that the appellant, who was working for gain as Cash Peon of the said Bank, had left the bank before his scheduled time of departure without any information. On further enquiry it was revealed that he had left his cycle and hand bag in the said Bank. He could not be traced over telephone. Sri Santanu Biswas, an Officer of the said Bank was deputed to find him out. But he (the appellant) was not available at his residence. Then a team of officers and staff of the said Bank consisting of Sri Ajit Kumar Sinha, Branch Manager of the said Bank (PW 3), Amal Kr. Bhattacharya, Single Window Operator of the said Bank (PW 6) and T. Phuntsok, posted at North Bengal Regional Office of United Bank of India at Siliguri (PW 9) visited the house of the appellant. After waiting there for some time as also after much persuasion by his wife over telephone, the appellant came back to his house. He confessed in writing in presence of the aforesaid officers that he had committed theft of the Bank’s money from the vault of the said Bank. 3. On June 8, 2011, at 00.20 hours the PW 3 submitted a written complaint to the Officer-in-Charge, Jalpaiguri Police Station, Jalpaiguri. The formal FIR bearing Kolwali P.S. Case No.459 dated June 8, 2011 was drawn at 00.20 hours on the basis of General Diary Entry No.530 dated June 8, 2011. 3. On June 8, 2011, at 00.20 hours the PW 3 submitted a written complaint to the Officer-in-Charge, Jalpaiguri Police Station, Jalpaiguri. The formal FIR bearing Kolwali P.S. Case No.459 dated June 8, 2011 was drawn at 00.20 hours on the basis of General Diary Entry No.530 dated June 8, 2011. The case was entrusted to Sri Ashish Thapa (PW 10), Sub Inspector, Kotwali Police Station, District-Jalpaiguri by the Inspector-in-Charge of the aforesaid police station for investigation. The appellant was arrested from his house on the same day. 4. After completion of investigation a charge-sheet bearing No.737 dated August 31, 2011 was submitted against the appellant for commission of offence punishable under Sections 409/411 of the I.P.C. Charge under Sections 406/409 of the I.P.C. was framed against the appellant by the learned Judge, Special Court (Under NDPS Act), Jalpaiguri on January 6, 2012 on the ground that on June 7, 2011 the appellant being entrusted with Rs.9,80,000/- at the office of the said Bank converted the same for his own use and committed criminal breach of trust in respect of the aforesaid amount of money in the capacity of a public servant (Cash Peon) thereby. 5. After taking into consideration the evidence of 11 prosecution witnesses, documentary evidence and the statement of the appellant recorded under Section 313 of Cr.P.C. the impugned judgment was passed. 6. It is submitted by Mr. Milon Mukherjee, learned Senior Advocate, appearing on behalf of the appellant, that the impugned judgment, order of conviction and the sentence are passed on surmise and conjecture. According to him, neither entrusting with any amount of money was a part of the duty of the appellant nor entrusting of any amount of money to the appellant was based on evidence. It is further submitted by him that the alleged shortage of cash or any part thereof was not recovered from the appellant. The finding of the learned Judge with regard to the extra judicial confession of the appellant in respect of the commission of offence under reference was not based on evidence. 7. Reliance is placed by Mr. It is further submitted by him that the alleged shortage of cash or any part thereof was not recovered from the appellant. The finding of the learned Judge with regard to the extra judicial confession of the appellant in respect of the commission of offence under reference was not based on evidence. 7. Reliance is placed by Mr. Mukherjee on the decisions of Navjot Singh Sidhu vs. State of Punjab & Anr., reported in (2007) 1 SCC (Cri) 627, Ravikant S. Patil vs. Sarvaghouma S. Bagali, reported in (2007) 1 SCC (Cri) 417, S. Manik Reddy vs. The State of Maharashtra, V. Chandrasekaran vs. R. Nagarajan, reported in 2006 Cri. L.J. 2055, S. Sant Singh vs. Secretary, Home Department, Govt. of Maharashtra, Mantralaya, Mumbai & Ors., reported in 2006 Cri. L.J. 1515, K.C. Sareen vs. C.B.I., Chandigarh, reported in AIR 2001 SC 3320 , Lalsai Khunte vs. Nirmal Sinha & Ors., reported in (2007) 3 SCC (Cri) 149 and Dr. Shailendra Kumar Tamoti vs. Republic of India, reported in 2010 Cri. L.J. 196 in support of his above submissions. 8. On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury, learned State Advocate being led by Mr. Monjit Singh, learned Public Prosecutor, High Court, Calcutta, that the finding of the learned Court below was based on evidence. 9. We have heard the learned Counsels appearing for the respective parties at length and we have given our anxious consideration to the facts and circumstances of this case on the basis of the evidence on record. 10. According to the prosecution case, PW 8, the Manager, Operation of the said Bank, Goutam Lama (PW 7), Single Window Operator, B Category of the said Bank who was in-charge of the post of Head Cashier of the said Bank and the appellant went to the strong room on June 6, 2011 in the morning. According to the evidence of PW 8, he went to the strong room of the said Bank after the shutter and gate of the strong room had been opened by the appellant. Then the appellant alongwith PW 7 entered into the strong room. PW 7 and PW 8 opened the safe. According to the evidence of PW 8, he went to the strong room of the said Bank after the shutter and gate of the strong room had been opened by the appellant. Then the appellant alongwith PW 7 entered into the strong room. PW 7 and PW 8 opened the safe. The PW 7 was in-charge of the post of Head Cashier on the aforesaid date because the Head Cashier of the said Bank left the Bank on that date on the occasion of “Jamaisashti” keeping the key of the Head Cashier in the custody of PW 8. Subsequently, he handed over the above key to the PW 7, who was in-charge of Head Cashier on that date. According to his evidence, the appellant took out the small box containing loose notes from the safe and PW 7 verified the cash with the register. Then PW 7 took out Rs.6,50,000/- from the safe for cash department after noting the same in the Safe Guide Register. There was rest amount of Rs.30,45,000/- in the safe in respect of which a note was also incorporated in the above register. Thereafter PW 7 closed the safe with his key and went to the cash section with the aforesaid amount of Rs.6,50,000/-as also the aforesaid small box accompanied by the appellant. PW 8 returned back to his table collecting one of the keys after closing the safe. The appellant closed the door of the cash department with a key and gave the same to PW 8. 11. It is further revealed from the evidence of PW 8 that at about 16.30 hours on the aforesaid day he was asked by the PW 7 to go to the strong room to open the safe for separating the bundles of clean and dirty notes. After opening the strong room PW 7 entered into the strong room with the appellant. About 5 minutes thereafter, he was informed by PW 7 that there was a shortage of Rs.9,80,000/- in the safe and he found some bundles containing currency notes were found loose. They could not find the appellant. The above incident was informed to the PW 3. He verified the money which had been kept in the safe of the strong room and found shortage of an amount of Rs.9,80,000/-. 12. They could not find the appellant. The above incident was informed to the PW 3. He verified the money which had been kept in the safe of the strong room and found shortage of an amount of Rs.9,80,000/-. 12. According to the evidence of PW 7, he was directed in the morning on the aforesaid date by PW 8 to bring money from the vault and to discharge the function of Head Cashier on that date. On arriving at the vault he found that the safe had been kept open. Similarly, at the afternoon on that date he found the door of the strong room lying open after reaching there. At that point of time, the appellant was present with him in the strong room. Subsequently, the appellant fled away. The other portion of his evidence was corroborating with that of the PW 8 save and except the deposition of the PW 8 that PW 7 made entries in the Safe Guide Register in respect of the money which had been brought out from the safe on that date. PW 7 deposed in course of cross-examination that it was the duty of the cash peon to take the money to the strong room along with the Head Cashier after the day’s work and to keep the same in bundles and assist the Head Cashier in keeping the same in the safe. The appellant carried the small box containing about Rs.1,52,000/- and Rs.14,40,000/- along with the PW 7 to the strong room. But Rs.9,80,000/- was not defalcated from the said box. 13. According to the evidence of PW 3, he was informed about the aforesaid incident of detection of shortage of money amounting to Rs.9,80,000/- in the safe of the vault of the said Bank by the PW 8. Since the appellant was not available in the said Bank at that point of time, PW 3 alongwith PW 9, the Senior Manager of United Bank of India at Regional Officer, Siliguri, PW 5, Chief Manager of United Bank of India, Siliguri Branch, Santanu Biswas, Officer of the said Bank, Amal Kr. Bhattacharjee (PW 6), PW 1, Alak Modak and Hemlata, all staffs of the said Bank went to the house of the appellant. The appellant was not available at his residence. Bhattacharjee (PW 6), PW 1, Alak Modak and Hemlata, all staffs of the said Bank went to the house of the appellant. The appellant was not available at his residence. He came to his house after sometime and confessed his guilt appropriating the aforesaid money in presence of the aforesaid members of the team consisting of the Officers and staff of the said Bank. According to his evidence, the appellant further handed over a letter of confession to them. Thereafter, the PW 3 lodged the written complaint to the Officer-in-Charge of Jalpaiguri Police Station as also handed over the aforesaid confessional letter to the police. 14. According to the evidence of the I.O. (PW 10), he went to the residence of the appellant after taking up the investigation of the case on the basis of the order of the Inspector in charge of Kotwali Police Station, District-Darjeeling. After recording the statement of the appellant (i) Cash-Rs.89,580/-, (ii) one Fixed Deposit Certificate of Rs.50,000/- (purchased before the date of incident), (iii) one Cumulative Term Deposit of Rs.30,000/-and (iv) one Savings Bank Account pass book of the wife of the appellant were seized. He arrested the appellant on June 8, 2011 at 15.05 hours from his residence. 15. It is further revealed from the evidence of PW 10 that on June 20, 2011 at 12.45 hours he seized one jewelry box containing one gold chain, one valuation certificate and one purchase slip which had been handed over to him by the PW 3 at his chamber of the said Bank. According to his evidence, the aforesaid seized articles were handed over to PW 3 by the wife of the appellant. The PW 10 further seized one Monitor, one U.P.S., one Key Board, one C.P.U, one invoice and quotation from the said Bank. From the cross-examination of the PW 10, it is evident that he did not seize any paper including attendance register, Close Circuit T.V. or its footage fixed in the strong room of the said Bank. He did not examine PW 7 or PW 8 of the said Bank nor recorded their statements. During cross-examination he deposed that no witness told him that he had seen the appellant to leave the bank with the disputed money on the material date. 16. He did not examine PW 7 or PW 8 of the said Bank nor recorded their statements. During cross-examination he deposed that no witness told him that he had seen the appellant to leave the bank with the disputed money on the material date. 16. PW 1, who was a Clerk of the said Bank, stated in course of his cross-examination that on June 7, 2011, out of two keys of the safe of the said vault one was kept in the custody of PW 7 and the other was in the custody of PW 8. According to his evidence, the function of the appellant was to accompany the Head Cashier (PW 7) at the time of bringing the money from the strong room as also at the time of distributing the same to different cashiers in the morning everyday and in the afternoon to accompany the PW 7 at the time of collecting the money from different cashiers as also to carry the same to the strong room along with the aforesaid PW 7. According to his evidence, one register was maintained in the vault for keeping information regarding the movement of money from the vault. The Head Cashier and the Deputy Manager (Operation) had to sign the same. The existence of Close Circuit T.V. was corroborated by his evidence. According to the evidence of PW 1, he was in-charge of Head Cashier on June 6, 2011, i.e. the preceding day of occurrence of the incident in question till that date there was no shortage of money in the safe of the strong room in question. 17. There was corroboration of the evidence of PW 7 and PW 8 by the PW 3. According to his evidence, he had not been informed about the shortage of money either by PW 7 or PW 8 in writing. His evidence further corroborated the existence of Close Circuit T.V. in the strong room and non-seizure of the attendance register or register of transactions of the concerned date from the said Bank by the police. From his deposition it is revealed that the lost money was not recovered. According to his evidence in course of cross-examination, though the appellant handed over a written confession to him, the same was not seized by the I.O. (PW 10). 18. From his deposition it is revealed that the lost money was not recovered. According to his evidence in course of cross-examination, though the appellant handed over a written confession to him, the same was not seized by the I.O. (PW 10). 18. The evidence of PW 4, PW 5, PW 6 and PW 9 did not throw further light to the facts and circumstances of the incident. According to PW 10, the distance between the main gate and the strong room was about 20/25 meters. The staff and the Bank customers were seen at the main gate but none of them witnessed the appellant to leave the office taking the missing amount of money with him. 19. Therefore, from the above evidence it is revealed that the appellant was never entrusted with the disputed amount of money on the material date. Nor it was a part of his duty to deal with the aforesaid amount of money. PW 7 and PW 8 were the person having access to the strong room as also the safe for dealing with the money. Two keys were required to open and close the safe of the strong room/vault. PW 7 and PW 8 were custodians of those keys. From their evidences, it was not surfaced that the appellant took entry in the strong room of the said Bank on the concerned date in absence of either PW 7 or PW 8. From the evidence of PW 10 it transpired that nobody witnessed the appellant to leave the said Bank with the disputed money on the concerned date. 20. So far as the seizure of Fixed Deposit Certificate, Cumulative Term Deposit Certificate from the house of the appellant were concerned, those had been purchased before June 7, 2011. So, they could not be connected with the shortage amount of money in question in any way. The Safe Guide Register lying in the strong room of the said Bank was not seized. Most surprisingly the Close Circuit T.V. of the strong room of the said Bank was not seized. 21. So, they could not be connected with the shortage amount of money in question in any way. The Safe Guide Register lying in the strong room of the said Bank was not seized. Most surprisingly the Close Circuit T.V. of the strong room of the said Bank was not seized. 21. So far as the seizure of jewellery (one gold chain containing in a jewellery box) was concerned, according to the evidence of PW 3, the same was handed over to him by the wife of the appellant on June 16, 2011, i.e. eight (8) days after the incident under reference with supporting document of purchasing the same. Therefore, we find no reason for seizure of the above ornament of the wife of the appellant. 22. The sheet anchor of the prosecution case was a purported letter of confession of the appellant. According to the evidence of the PW 3, the above letter of confession with regard to the theft of money in question was handed over to him by the appellant at his residence in presence of others. He stated in his examination-in-chief that the above letter of confession was submitted to the police. He further deposed in his cross-examination that as follows:- “On the next date of the incident the I.O. of this case came to my office and I handed over the written confession made by the accd. person before us to him and he accepted the same from me. But the I.O. did not seize the said written confession in my presence at that time. This is the xerox copy of the said written confession made by the accd. person before us and it bears the signature of the accd. person and the witnesses.” 23. The evidence of I.O. (PW 10) was silent about any letter of confession of the appellant. No letter of confession of the appellant either in original or the true copy of the same was brought on record. 24. In view of the above, we have no hesitation to arrive at a conclusion that the impugned judgment was not based on evidence. The decision making process of the learned Trial Judge suffered from infirmities and irregularities. There was nothing on record to implicate the appellant with the charge framed against him. 25. This appeal is, thus, allowed. The impugned judgment, order of conviction and the sentence are quashed and set aside. 26. The decision making process of the learned Trial Judge suffered from infirmities and irregularities. There was nothing on record to implicate the appellant with the charge framed against him. 25. This appeal is, thus, allowed. The impugned judgment, order of conviction and the sentence are quashed and set aside. 26. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. 27. Before parting with this file, we are of the opinion that following observations are required to be incorporated in our judgment:- (i) The investigation conducted by the I.O. (PW 10) shows that he had not seized “Safe Guide Register” of strong room/vault of the said Bank, the Close Circuit T.V. lying in the strong room, the attendance register of the said Bank. He did not examine any of the Officers or staff of the said Bank including PW 3, PW 7 and PW 8. Nor did he recover the disputed money. Noteworthy, the PW 7 and PW 8 being the persons responsible to deal with the money of the said Bank and the custodians of the keys of the safe lying in the strong room/vault as also that of the door of that strong room, were not interrogated by the I.O. No explanation was available from the evidence of PW 10 to support seizure of Fixed Deposit Certificates and Cumulative Deposit Certificate which had been purchased much before the date of the incident as also ornaments with documents in support of purchasing the same prior to the date of incident. In the event he is entrusted with the responsibility to discharge such function of investigation in future, it will not only be harassment for innocent person like the appellant to implicate him falsely in commission of cognizable offence, but also the public confidence towards the function of the members of the police department will be shaken. So, we hope and trust that the Director General and Inspector General of Police, West Bengal will not only take proper steps against the aforesaid Ashish Thapa, Sub-Inspector of Police, Kotwali Police Station at the material point of time but also take necessary steps to prevent this type of discharging of function by the investigation agency of the State in connection with the investigations of the cases involving cognizable offence. 28. 28. Let a true copy of this judgment be also attached to the Service Book of the aforesaid Ashish Thapa. (ii) It is a matter of regret that though there was missing/misappropriation of an amount of rupees Nine lakh eighty thousand from the fund of the said Bank, the higher authority of the said Bank did not take appropriate steps against the Officers who were responsible for missing of the aforesaid money being the custodian of the keys of the said vault and as also the safe of the strong room/vault of the said Bank on the concerned date as also to make good the aforesaid money which was public money, the said Bank being a branch of a Nationalised Bank. 29. Therefore, we hope and trust that the Chairman of the Board of Directors of the United Bank of India will take appropriate steps by fixing the responsibility of missing/misappropriation/theft of the money under reference and by taking adequate steps against the persons responsible forthwith in order to maintain the faith of the public at large on the Nationalised Banks of the country. 30. Let true copies of this judgment be send to the Director General and Inspector General of Police, West Bengal, as also the Chairman of the Board of Directors of United Bank of India by Special Messenger of this Court within a period of fortnight. 31. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree.