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2017 DIGILAW 608 (CAL)

Prafulla Barman v. State of West Bengal

2017-07-12

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

body2017
JUDGMENT : Debasish Kar Gupta, J. 1. This appeal is directed against a judgment, order of conviction and sentence dated April 29, 2010 passed by the learned Judge, Special-cum-Sessions Judge, Cooch Behar in Special Case No.8 of 2006 convicting the appellant for commission of offence punishable under Section 409 Indian Penal Code (hereinafter referred to as the I.P.C.) and sentencing him to suffer rigorous imprisonment for a period of ten (10) years as also further sentencing him to pay fine of Rs.416,756.01/- in default to suffer rigorous imprisonment for a further period of two years. 2. The backdrop of this appeal in a nutshell is as under :- A written complaint was submitted in Dinhata Police Station, District-Cooch Behar by the Block Development Officer, Dinhata-II, Development Block, Sahebganj, District-Cooch Behar on August 9, 2004. The above written complaint contained that the appellant was the erstwhile Pradhan of Bamanhat-II, Gram Panchayat, District-Cooch Behar (hereinafter referred to as the said Gram Panchayat). He misappropriated Government money amounting to Rs.416,758.01/- out of the fund allotted under Indira Abas Yojona (New Construction), Prime Minister Gramin Abas Yojona and Indira Abas Yojona (upgradation) during his tenure as Pradhan of the said Gram Panchayat. According to the written complaint, the above irregularities were detected on June 9, 2003, during internal audit. The above misappropriation of Government money was confirmed upon verification of records of accounts and audit report dated July 9, 2003. The appellant gave a declaration to the above Block Development Officer confessing his above guilt with the assurance to refund the aforesaid amount back to the respective funds. The written complaint further contained that the appellant deposited sum of Rs.20,000/- and 30,000/- in the bank account of said Gram Panchayat on July 14, 2003, and July 22, 2004, respectively. 3. On the basis of the above written complaint a formal FIR bearing Dinhata P.S. Case No.139/2004 dated August 9, 2004, was initiated against the appellant for commission of offence punishable under Section 409 I.P.C. after making an entry in the General Diary bearing no.462 dated August 9, 2004. On August 11, 2004, the appellant was arrested in connection with the above case. 4. One Jiban Kumar Tamang, Sub-Inspector of Police, posted at Dinhata Police Station, District-Cooch Behar at the material point of time was engaged as investigating officer of the above case. On August 11, 2004, the appellant was arrested in connection with the above case. 4. One Jiban Kumar Tamang, Sub-Inspector of Police, posted at Dinhata Police Station, District-Cooch Behar at the material point of time was engaged as investigating officer of the above case. He submitted charge sheet bearing no.64/2005 dated March 31, 2005 against the appellant for commission of offence under Section 409 I.P.C. Charge was framed against the appellant on November 4, 2009, for commission of offence punishable under Section 409 I.P.C. 5. After considering the oral evidence of ten (10) prosecution witnesses, documentary evidences and after examining the appellant for recording his statement under Section 313 Cr.P.C. the impugned judgment was passed. 6. It is submitted by Ms. Meenal Sinha, learned amicus curiae engaged by us, that there was inordinate and unexplained delay of more than one year in lodging the FIR from the alleged dated of detection of alleged misappropriation of money by the appellant. According to Ms. Sinha, considering the aforesaid delay together with other facts and circumstances it appeared that the FIR was lodged by the PW 1 after due deliberation for the purpose of implicating the appellant falsely for misappropriation of Government money. 7. According to Ms. Sinha, the above FIR was lodged by the PW 1 without jurisdiction because he was not holding the Office of Block Development Officer, Dinhata-II Block, District - Cooch Behar on the date of alleged detection of commission of offence by the appellant. 8. It is further submitted Ms. Sinha that the entire proceeding was vitiated due to non-obtaining of prior sanction under Section 197 Cr.P.C. by the PW 1 for lodging the above FIR. 9. Our attentions have been drawn towards the evidence of prosecution witnesses to show that cash book, relevant vouchers were not produced before the Court in trial. The report of handing over of charge of the Office of Pradhan to PW 7 did not show deficit of any amount in the fund of the said Gram Panchayat. 10. It is also submitted that the alleged misappropriation of the Government money was not mentioned in the internal audit dated June 9, 2003. The PW 1 had no personal knowledge about the cause of alleged deficit in the fund of the said Gram Panchayat. The specific period of alleged misappropriation was not proved in trial. 11. 10. It is also submitted that the alleged misappropriation of the Government money was not mentioned in the internal audit dated June 9, 2003. The PW 1 had no personal knowledge about the cause of alleged deficit in the fund of the said Gram Panchayat. The specific period of alleged misappropriation was not proved in trial. 11. Drawing our attentions towards the provisions of clauses (c) (d) (e) of sub-rule (2) of Rule 35 of the West Bengal Panchayat Administration Rules, 1981 read with the evidence of PW 1 it is submitted by Ms. Sinha that the Secretary of the said Gram Panchayat was authorised to handle the cash of the said Gram Panchayat as also to make necessary entries in the cash book for withdrawal of any amount. There was failure on the part of the prosecution to prove that the appellant took the alleged amount of money in his custody from the Secretary of the above Gram Panchayat (PW 6). 12. It is submitted by Ms. Sinha that the alleged commission of offence by the appellant was not proved in the trial beyond all reasonable doubts due to non-production of the cash book maintained in the said Gram Panchayat at the material point of time. In support of her submission, it is further submitted that the ingredients of entrustment of the alleged amount of money to the appellant and the domain of the appellant over the aforesaid amount of money was not proved beyond all reasonable doubts due to the facts as surfaced from the evidence on record. 13. It is finally submitted by Ms. Sinha that the lodging of FIR against the appellant was an outcome of political vendetta. 14. Reliance is placed by Ms. Sinha on the decisions of Rex vs. V. Krishnan, reported in AIR 1940 Mad 329 , Velji Raghavji Patel vs. State of Maharashtra, reported in AIR 1965 SC 1432, Kanhaiya Lal & Ors. vs. State of Rajasthan, reported in (2013) 5 SCC 655 , Umapada Santra vs. The State of West Bengal, reported in (2013) 1 CLJ 597 and Nanda Tudu vs. State of W.B., reported in (2015) 4 Cal LT 334 in support of her above submissions. 15. It is submitted by Mr. vs. State of Rajasthan, reported in (2013) 5 SCC 655 , Umapada Santra vs. The State of West Bengal, reported in (2013) 1 CLJ 597 and Nanda Tudu vs. State of W.B., reported in (2015) 4 Cal LT 334 in support of her above submissions. 15. It is submitted by Mr. Ranabir Roy Chowdhury, appearing on behalf of the State respondents, that from the evidence of PW 1 it appeared that he was the Block Development Officer concerned at the material point of time and one Mr. Piplai was the authorised representative. 16. According to Mr. Roy Chowdhury, the cause of delay in lodging FIR was the assurance given by the appellant to the authority for refunding the deficit amount of money. Drawing our attentions towards the written declaration of the appellant dated July 23, 2003, it is submitted by Mr. Roy Chowdhury that on the basis of prior assurance given by him, a portion of the deficit amount of money was deposited by the appellant in the bank account of the said Gram Panchayat. According to him, no objection was raised at the time of exhibiting the written declaration of the appellant in trial Court and the appellant cannot turn around to challenge the same subsequently. According to Mr. Roy Chowdhury, the trustworthiness of the evidence of PW 1 with regard to exhibiting the written declaration of the appellant can be ascertained from the subsequent deposit of money by the appellant in the fund of the said Gram Panchayat. 17. It is submitted by Mr. Roy Chowdhury that the under the schemes concerned, the appellant was the custodian of the money deposited by the Government in the relevant bank accounts of the said Gram Panchayat. The appellant being the custodian of the aforesaid money at the material point of time withdrew the deficit amount of money in question by issuing cheques. It was proved from the internal audit report dated June 9, 2003, which had been prepared after due consideration of vouchers, papers and documents. 18. It is repeated and reiterated by Mr. Roy Chowdhury that the above audit report (Exbt.-6) was exhibited without any objection and as such the appellant cannot turn around subsequently to challenge the above document. 19. It was proved from the internal audit report dated June 9, 2003, which had been prepared after due consideration of vouchers, papers and documents. 18. It is repeated and reiterated by Mr. Roy Chowdhury that the above audit report (Exbt.-6) was exhibited without any objection and as such the appellant cannot turn around subsequently to challenge the above document. 19. Our attentions have been drawn towards the FIR to show that after deposit of a sum of Rs.20000/- in Prime Minister Gramin Abas Yojona (New Construction) fund with the bank by the appellant on July 14, 2003, the deficit amount was shown in the FIR as “NIL” in respect of the above fund. Our further attentions have been drawn towards the pass book issued by the bank in respect of Indira Abas Yojona (New Construction) fund to show deposit of Rs.30000/- in that account. 20. It is finally submitted by Mr. Roy Chowdhury that no prior sanction of the Government was required to lodge the FIR against the appellant under Section 197 Cr.P.C. According to him, the trial Court after taking into consideration the facts and circumstances including the internal audit report of the said Gram Panchayat and the written declaration of the appellant passed the impugned judgment. 21. Reliance is placed by Mr. Roy Chowdhury on the decisions of Punjab State Warehousing Corp. vs. Bhushan Chander & Anr., reported in (2016) 13 SCC 44 and L. Narayana Swamy vs. State of Karnataka & Ors., reported in (2016) 9 SCC 598 in support of his above submissions. 22. We have heard the learned Counsels appearing for the respective parties at length and have considered the facts and circumstances of this appeal. 23. Regarding the first contention of the appellant that delay in lodging the FIR created doubt as to the possibility of embellishment in the prosecution version, we find that the misappropriation of Government money was detected during internal audit of the books of accounts of the said Gram Panchayat on or about June 9, 2003. It is not in dispute that the FIR was lodged after more than one year, i.e. on August 9, 2004. 24. According to the settled principles of law, mere delay in lodging first information report itself cannot be regarded as fatal to the prosecution case. It is not in dispute that the FIR was lodged after more than one year, i.e. on August 9, 2004. 24. According to the settled principles of law, mere delay in lodging first information report itself cannot be regarded as fatal to the prosecution case. However, there is a possibility of embellishment in the prosecution version on account of such delay if the prosecution fails to satisfactory explained the delay. Reference may be made to the decision of Kanhaiya Lal & Ors. vs. State of Rajasthan, reported in (2013) 5 SCC 655 is quoted below:- “15. It is settled in law that mere delay in lodging the first information report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. 16.. . . . . 17.. . . . . 18.. . . . . 19. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinising the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kalikkatha Parambath Sasi v. State of Kerala it has been observed (SCC p.557, para 20) that when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened.” 25. Whether in the present case delay in lodging FIR creates a dent in the prosecution story can be gathered from factual scenario which is discussed hereunder. 26. With regard to the next contention of Ms. Sinha it appears from the evidence of PW 1 that he was holding the Office of the Block Development Officer, Dinhata-II Block, District-Cooch Behar at the material point of time. 26. With regard to the next contention of Ms. Sinha it appears from the evidence of PW 1 that he was holding the Office of the Block Development Officer, Dinhata-II Block, District-Cooch Behar at the material point of time. In course of cross-examination he further stated that his tenure of holding the Office of the above Block Development Officer continued from March 8, 2003 to July 20, 2007. Therefore, we do not find any error in the decision making process of the learned trial Judge in holding that the PW 1 was in the Officer of the Block Development Officer concerned at the material point of time. 27. For the purpose of adjudication of the question relating to non-obtaining of prior sanction under Section 197 Cr.P.C. by PW 1 for lodging FIR against the appellant, after careful scrutiny of the above provision, we find that the provisions of Section 197 Cr.P.C. applies in case of any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government. Nothing is produced before us to show that a Pradhan of a Gram Panchayat cannot be removed from his office save by or with the sanction of the Government. Therefore, when a Pradhan of a Gram Panchayat is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no prior sanction of the Government is required for a Court to take cognizance of such offence. Moreover, the appellant was not holding the office of Pradhan of the Gram Panchayat concerned at the time of lodging complaint. 28. With regard to the next contention of non-production of cash book or relevant vouchers before the learned trial Judge or correctness of the decision making process of the learned trial Court in relying upon the internal audit report as also the declaration given by the appellant, we find that the internal audit report dated June 9, 2003 was relating to the period of preceding three months. The PW 2 was the Panchayat Audit and Account Officer, Dinhata-II Block at the material point of time. The above internal report (Exbt.-6) was exhibited by him. The same was exhibited without objection. The PW 2 was the Panchayat Audit and Account Officer, Dinhata-II Block at the material point of time. The above internal report (Exbt.-6) was exhibited by him. The same was exhibited without objection. According to the settled principles of law, in the event no objection is raised at the time of exhibiting a document before a Court of law in a proceeding, the party concerned cannot turn around subsequently questioning the validity of such document. Reference may be made to the decision of Gian Chand and Brothers & Anr. vs. Rattan Lal @ Rattan Singh, reported in (2013) 2 SCC 606 and the relevant portion of the above decision is quoted below :- “22. The present case is not one such case where the plaintiffs have chosen not to adduce any evidence. They have examined witnesses, proven entries in the books of accounts and also proven the acknowledgments duly signed by the defendant. The defendant, on the contrary, except making a bald denial of the averments, had not stated anything else. That apart, nothing was put to the witnesses in the cross-examination when the documents were exhibited. He only came with a specious plea in his evidence which was not pleaded. Thus, we have no hesitation in holding that the High Court has fallen into error in holding that it was obligatory on the part of the plaintiffs to examine the handwriting expert to prove the signatures. The finding that the plaintiffs had failed to discharge the burden is absolutely misconceived in the facts of the case. 29. Further the above internal audit report was prepared on verification of relevant papers, vouchers. According to the evidence of PW 2, as the appellant was the head of Gram Panchayat and he used to authenticate and verify the cash book and other registers, the PW 2 informed about the irregularities in question to him requesting him to deposit the said amount in the respective fund immediately. So, according to his evidence, the Pradhan had the control and dominion for the deficit amount of money. The above evidence of the PW 2 was corroborating with that of the PW 6. According to his evidence, no payment of money was made by the Secretary (PW 6) in respect of works of the Gram Panchayat in question. So, according to his evidence, the Pradhan had the control and dominion for the deficit amount of money. The above evidence of the PW 2 was corroborating with that of the PW 6. According to his evidence, no payment of money was made by the Secretary (PW 6) in respect of works of the Gram Panchayat in question. The appellant directly used to make the payments of money for works done under different schemes from his office. Cash book was maintained by the PW 6 on the basis of the vouchers issued by the appellant. The impugned judgement does not require our interference in this regard. 30. The next contention with regard to taking into consideration the declaration of the appellant dated July 23, 2003 it is not in dispute that the above declaration was exhibited by PW 1 as Exbt.-3 without objection. On the basis of the settled principles of law as has already been discussed hereinabove does not open for the appellant to turn around for challenging the validity of the above exhibit. According to the above exhibit, the cheque book and the pass book of different accounts of the Gram Panchayat in question had been kept in the custody of the Secretary. After withdrawal of money the Secretary used to retain a little portion of such withdrawal in his office and the remaining amounts of money were handed over to the appellant. According to the above declaration, the deficit amount of money was utilised for enabling some members of the political party in which he belonged, to contest the forthcoming Panchayat election at the material point of time. In the above declaration the name of those persons the amount of money given to them on different dates were mentioned. There was further assurance on the part of the appellant in the above declaration to refund the money back in appropriate accounts of the said Gram Panchayat. 31. In the above declaration the name of those persons the amount of money given to them on different dates were mentioned. There was further assurance on the part of the appellant in the above declaration to refund the money back in appropriate accounts of the said Gram Panchayat. 31. Since the above exhibit was proved in trial in accordance with law which has been discussed hereinabove, we are of the opinion that the entrustment of the deficit amount of money in question to the appellant or the dominion of the appellant over the aforesaid deficit amount of money was proved beyond all reasonable doubt in trial from the above declaration (Exbt.-3) read with the internal audit report dated June 9, 2003 and the oral evidence of PW 1, PW 2 and PW 6. Since the PW 1 was relying upon the internal audit report dated June 9, 2003 which was proved in trial in accordance with law and the FIR had been lodged by him on the basis thereof, the question of his personal knowledge with regard to misappropriation of the money in question was of less significance. Though the PW 6 being the Secretary of the said Gram Panchayat was the person responsible for handling the cash in accordance with the provisions of clauses (c) (d) (e) of sub-rule (2) of Rule 35 of the West Bengal Panchayat (Administration) Rules, 1981, but according to his evidence, corroborating with the contentions of Exbt.-3 and Exbt.-6, the entrustment of deficit amount of money to the appellant or his dominion over the aforesaid amount of money was proved beyond doubt in the trial. Therefore, none of the aforesaid provision helps the appellant in any way. Thus the commission of criminal breach of trust in respect of the aforesaid deficit amount of Government money was proved beyond all reasonable doubts against the appellant in accordance with the provisions of Section 409 I.P.C. in the trial which gives rise to this appeal. 32. In the decision of Rex (supra) it was decided if money due to a particular person is not paid, the law allows only a civil suit and not a criminal proceeding, for in the case of mere retention without any misappropriation, there is only a civil liability and mere payment by a debtor to a creditor’s agent is not entrustment. In the decision of Rex (supra) it was decided if money due to a particular person is not paid, the law allows only a civil suit and not a criminal proceeding, for in the case of mere retention without any misappropriation, there is only a civil liability and mere payment by a debtor to a creditor’s agent is not entrustment. In view of the distinguishable facts and circumstances of the case in hand the above decision does not help the appellant. 33. In the matter of Velji Raghavji Patel (supra) it was decided by the Apex Court that before a person can be said to have committed criminal breach of trust it must be established that either he was entrusted with or entrusted with dominion over the property which was said to have converted to his own use or disposed of in violation of any direction of law etc. Considering the facts and circumstances of the above case, the Apex Court arrived at a conclusion that the charge of commission of offence of criminal breach of trust was not committed. Since the commission of offence of the appellant was proved in the trial of the instant case, the above ratio laid down by the Apex Court has no manner of application in the instant case. 34. It has been held by us hereinabove in the trial and consequent thereupon the ratio laid down in the decision of Umapada Santra (supra) that an accused is presumed to be innocent unless the presumption is rebutted by the prosecution by producing evidence does not help the appellant in this case even considering persuasive value of a learned Single Judge of this Court. We have examined the effect of delay in lodging FIR in the instant case in view of the law laid down by the Apex Court taking into consideration the factual scenario of the present case. So, the above decision also does not help the appellant in any way. For the same reason the decision of Nanda Tudu (supra) does not help the appellant considering the persuasive value of the above decision in view of the factual matrix of the instant case. 35. This appeal stands dismissed. The bond executed for granting bail in favour of the appellant stands cancelled. 36. For the same reason the decision of Nanda Tudu (supra) does not help the appellant considering the persuasive value of the above decision in view of the factual matrix of the instant case. 35. This appeal stands dismissed. The bond executed for granting bail in favour of the appellant stands cancelled. 36. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously for taking necessary steps in the matter in view of this judgment forthwith. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis. Md. Mumtaz Khan, J. I agree.