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2016 DIGILAW 81 (TRI)

State of Tripura v. Swapan Sarkar

2016-03-28

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. J. Majumder, learned counsel appearing for the petitioner, the State of Tripura as well as Mr. H.K. Bhowmik, learned counsel appearing for the State. 2. By means of this revision petition filed under Section 397 read with Section 401 of the Cr.P.C. the order dated 03.10.2012 passed by the Addl. Sessions Judge, Court No.5, West Tripura, Agartala in Criminal Appeal No.16(1)/2012 has been called in question. By the said order dated 03.10.2012 the petition filed under Section 5 of the Limitation Act for condoning the delay of 455 days in preferring the appeal, being Criminal Appeal No.16(1)/2012 against the judgment of acquittal dated 27.12.2010 passed by the Sub-Divisional Judicial Magistrate, Bishalgarh, West Tripura in G.R.778/2001 has been rejected, holding that the reasons assigned for the condonation of delay are not believable. 3. Mr. J. Majumder, learned counsel appearing for the petitioner, has submitted that since the State is an impersonal machinery, for the action to be taken has to depend on so many persons on different positions, sometimes for their lapse or bonafideaction the delay may take place. In this case, the Assistant Public Prosecutor kept the file of the case in his custody for a quite long time till 20.09.2011 whereas the judgment to be challenged in the appeal was passed on 27.12.2010 in case No. G.R.778/2001. Thus, such inordinate delay could take place. Mr. Majumder, learned counsel has submitted that the court should not mechanically appreciate such grounds of delay, but should also look at the cause of substantial justice and as such a liberal approach is required to be taken and such latitude would serve the interest of justice. 4. From the other side, Mr. H.K. Bhowmik, learned counsel appearing for the respondent, has relied two decisions of the apex court to contend that, what colour the expression ‘sufficient cause’ would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his case, then it would be a legitimate exercise of discretion not to condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his case, then it would be a legitimate exercise of discretion not to condone the delay. 5. The law as above has been stated in reported in Maniben Devraj Singh Vs. Municipal Corporation of Brihan Mumbai, reported in AIR 2012 SC 1629 and Union of India & Ors. Vs. Nripen Sharma, reported in AIR 2011 SC 1237 . This court has also considered, apart from the causes as assigned in the petition for condonation of delay, the reason for acquittal of the respondent from the charge as brought against him under Section 409 of the IPC for defalcating Government money. From the judgment of the trial court, it appears that the prosecution has miserably failed to prove the entrustment of the property with the respondent herein and that he had dominion over the said property, which allegedly had been misappropriated/defalcated by him and utilised the same for his own gain. The trial court has observed as under : “Before a person can be said to have committed criminal breach of trust within the meaning of Section 409 of IPC, it must be established with the accused person being a public servant was either entrusted with or entrusted with the dominion over property which he is said to have converted to his own use. In order to establish, “the entrustment or dominion” over property to an accused person, the mere existence of that persons dominion over property is not enough. It must be further shown that his dominion was the result of entrustment.” 6. There cannot be any debate on this proposition of law as, way back in 1983, the supreme court in Roshanlal Raina vs. State of Jammu & Kashmir, reported in AIR 1983 SC 631 , had observed that : “Without proof of entrustment there can be no question of the appellant being found guilty of the offence u/s 409 of Ranbir Penal Code of Jammu & Kashmir”. It is to be noted that Section 409 of Ranbir Penal Code of Jammu & Kashmir and Section 409 of the IPC are peri materia and as such the law as decided in Roshanlal Raina vs. State of Jammu & Kashmir is equally applicable to the other part of the country. 7. This court has categorically queried Mr. It is to be noted that Section 409 of Ranbir Penal Code of Jammu & Kashmir and Section 409 of the IPC are peri materia and as such the law as decided in Roshanlal Raina vs. State of Jammu & Kashmir is equally applicable to the other part of the country. 7. This court has categorically queried Mr. J. Majumder, learned counsel appearing for the petitioner-State of Tripura whether in order to establish the entrustment or dominion over the property with entrustment in the appeal the State has taken any ground that for any reason any document which is available or which could not be brought in the evidence would be brought if the appeal is admitted taking recourse to Section 391 of the Cr.P.C. Mr. Majumder, learned counsel has candidly submitted that no such stand has been taken and as on date he had no instruction that such document exists and that can be utilised against the accused person. In view of the said statement, this court does not find any reason to interfere with the impugned order passed by the Addl. Sessions Judge, West Tripura, Agartala. 8. In the result, this petition stands dismissed. Send down the LCRs forthwith.