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2018 DIGILAW 1524 (GAU)

Sachin Das v. State of Assam

2018-10-10

MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. 1. This revision is directed against the judgment and order dated 15.05.2009 passed by the learned Additional Sessions Judge, FTC, No. 2, Kamrup in Crl. A. No. 49/2008 arising out of GR Case No. 2859/2003 2. The petitioner was convicted by the learned Chief Judicial Magistrate, Kamrup under Section 409 IPC and sentenced him to rigorous imprisonment for two years and fine of Rs. 5000/- with default stipulation. The appeal preferred by the petitioner stood dismissed. 3. The brief facts which may be relevant for disposal of this revision are that the petitioner was working as Assistant Executive Engineer, Udalguri Electrical Sub-Division. He was sent to Central Store at Guwahati of the Electricity Department for collecting some electrical articles. He took delivery of the articles from the Central Store, Guwahati at Ulubari and Kahilipara, but while proceeding to Udalguri, some of the articles were unloaded and kept in his residence at Guwahati. Having come to know about the said facts, the Executive engineer lodged an FIR, on the basis of which, police registered a case being Dispur P.S. Case No. 137/2003 under Section 406/379 IPC and on completion of investigation, charge sheet was laid against the petitioner. Eventually, the petitioner stood trial for offence under Section 409 IPC and was convicted and sentenced as indicated above. 4. Mr. P. Kataki, learned counsel for the revision petitioner and Mr. B.B. Gogoi, learned Addl. P.P., Assam were heard. 5. Learned counsel for the revision petitioner, Mr. P. Kataki submits that conviction and sentence of the petitioner under Section 409 IPC was illegal and improper as prosecution has not been able to prove the factum of "dishonest misappropriation" on the part of the petitioner. Further contention of the learned counsel for the petitioner was that the defence evidence adduced by the petitioner was ignored by both the courts below and recorded the conviction and sentence of the petitioner mechanically. 6. During examination under Section 313 Cr.P.C., the petitioner admitted that he took delivery of the electrical articles from the store for the purpose of taking to Udalguri. He also admitted that some of the articles were kept at his residence. 6. During examination under Section 313 Cr.P.C., the petitioner admitted that he took delivery of the electrical articles from the store for the purpose of taking to Udalguri. He also admitted that some of the articles were kept at his residence. However, he took a defence plea in his examination under Section 313 Cr.P.C., that the truck hired for transporting the articles was a small one and after loading the articles, the driver of the truck was reluctant to proceed with such heavy load as the truck was overloaded. The driver requested him to reduce the load as the condition of the road to Udalguri was not good. Upon request of the driver, the petitioner informed the Executive Engineer that because of the excessive load, some articles were kept in his residence to be taken on the next day. The petitioner also examined defence witnesses in support of his defence that he had no intention to misappropriate any articles entrusted to him. Therefore, the factum of entrustment of the articles of the Electricity Department with the petitioner was not disputed. That some articles were left in the residence of the petitioner at Guwahati and later on seized by police was also not disputed. The only argument put forward by defence was that the petitioner left the articles in his residence on request of the driver, to reduce the load, as the truck was overloaded and he had no criminal intention to misappropriate the articles. 7. The petitioner was convicted under Section 409 IPC for the offence of criminal breach of trust. In order to establish a charge under Section 409 IPC, prosecution needs to prove the following facts. (i) Accused was a public servant or banker, merchant, factor, broker, attorney or agent (ii) He was any manner entrusted with property, or with any dominion over property (iii) The said property was entrusted to him in the capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, (iv) The accused commits criminal breach of trust in respect of that property. 8. Criminal breach of trust has been defined in Section 405 IPC, which reads as under: "405. 8. Criminal breach of trust has been defined in Section 405 IPC, which reads as under: "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" 9. A plain reading of the above provision would show that that in order to constitute an offence of criminal breach of trust two basic ingredients are required to be proved, (i) the property entrusted with the accused must be misappropriated or converted to his own use and (ii) such misappropriation or conversion to his own use must be dishonest. It is the established principle of administration of criminal justice, that prosecution needs to prove each and every ingredient of the offence to bring home a charge. In the instant case, the factum of the petitioner being a public servant and his entrustment with the property was not disputed. The allegation against the petitioner was that while transporting the articles entrusted to him, he left some of the articles in his residence at Guwahati for which, charge of misappropriation was brought against him. As indicated above, the specific plea of the accused was that he left some of the articles under compulsion on request of the driver, who was reluctant to carry all the goods as the truck was overloaded. Further plea of the petitioner was that he left the articles in his residence with information to the PW-3, Executive Engineer, who lodged a false FIR out of personal grudge, only to harass him. In support of his defence plea, the petitioner examined two witnesses being the driver of the truck and also the contractor, who provided the truck. 10. DW-1, the contractor deposed that the Executive Engineer, Prabin Hazarika (P W-3) requested him to provide a truck for bringing some articles from Guwahati. Accordingly, he provided the truck, which was driven by DW-2. In support of his defence plea, the petitioner examined two witnesses being the driver of the truck and also the contractor, who provided the truck. 10. DW-1, the contractor deposed that the Executive Engineer, Prabin Hazarika (P W-3) requested him to provide a truck for bringing some articles from Guwahati. Accordingly, he provided the truck, which was driven by DW-2. He stated that he also accompanied the petitioner in the truck to Guwahati and after loading the articles, the driver told, that the vehicle was overloaded and requested for offloading some articles to reduce the load as the road was not good and the condition of tyre was also not good. Upon such request of the driver, some of the articles were downloaded at the residence of the petitioner at Jalukbari and the remaining articles were taken to Udalguri. That the DW-1 was the contractor, providing the truck was also admitted by PW-3, the informant. DW-2, the driver stated that he was the driver of the Mini Truck bearing registration No. AS-13/9009. According to him, he came to Guwahati for carrying articles of the Electricity Department According to him, the petitioner and the D W-1 also travelled in the truck. He further stated that after loading the truck, he found that the truck was overloaded and it would not be possible to carry the entire articles as the condition of tyre was not good and road was also bad. Therefore, he left some articles in the residence of the petitioner at Jalukbari and proceeded to Udalguri with the remaining articles. The oral testimony of the DW-1 and DW-2 remained unshaken. 11. The petitioner stated in his examination under Section 313 Cr.P.C., that with the verbal permission of the Executive Engineer (PW-3) over phone and on request of the driver, he left some articles in his house to be carried on the next day. Evidently, the articles were loaded in the truck at Guwahati on 11.06.2003. According to PW-3, the Executive Engineer (informant), Bipin Saikia (DW-1) informed him (PW-3), on 18.06.2003 that some articles were kept in the house of the petitioner and having come to know from Bipin Saikia, the FIR was lodged on 20.6.2003. Evidently, the articles were loaded in the truck at Guwahati on 11.06.2003. According to PW-3, the Executive Engineer (informant), Bipin Saikia (DW-1) informed him (PW-3), on 18.06.2003 that some articles were kept in the house of the petitioner and having come to know from Bipin Saikia, the FIR was lodged on 20.6.2003. Though, according to PW-3, he came to know from Bipin Saikia only on 18.6.2003, that some articles were left at the residence of the petitioner, the oral testimony of the PW-1 would show, that PW-3 knew much before 18.06.2003, that all the articles were not taken to Udalguri, inasmuch as, PW-1 stated in his evidence that after two days of release of the articles from the Central Godown, PW-3 and Superintendent of Engineer came to their godown to enquire as to what were the articles lifted from there. Thus, the evidence of PW-1 clearly indicated that PW-3 came to know that all the articles were not taken to Udalguri immediately after one or two days of lifting the articles by the petitioner from the godwon and if this evidence of PW-1 is to be believed, then it belies the oral testimony of PW-3, that he came to know only on 18.06.2003 from Bipin Saikia about the facts that all the articles were not taken to Udalguri. Therefore, the evidence of PW-1 goes to support the version of the accused/petitioner, that he informed the PW-3 regarding leaving some articles in his residence. The evidence of DW-1 and DW-2, the contractor and the driver of the vehicle respectively, that because of overloading, some articles were left in the residence of the petitioner at Guwahati to be taken later on remained unshaken. That the DW-2 was the driver of the vehicles and D W-1 provided the vehicle were also not disputed, inasmuch as, PW-3 (informant) himself admitted that the truck was provided by the contractor Dipin Saikia (DW-1). Therefore, evidently the DW-1 and DW-2 both were natural witnesses. 12. What is evident from the impugned judgment is that he evidences of the defence witnesses were not given due weightage. It is well settled principle of appreciation of evidence that defence witness is entitled to equal treatment as that of prosecution witness. Therefore, evidently the DW-1 and DW-2 both were natural witnesses. 12. What is evident from the impugned judgment is that he evidences of the defence witnesses were not given due weightage. It is well settled principle of appreciation of evidence that defence witness is entitled to equal treatment as that of prosecution witness. The credibility of the defence witness shall also be at par with the prosecution witness and the scale to assess the credibility or trustworthiness of a defence witness or prosecution witness should be the same. The defence witness cannot be disbelieved or discarded merely because, he supported the case of the accused. If the defence witnesses are found to be credible and trustworthy, such evidence cannot be ignored or discarded merely for the fact that he/they supported the case of the accused. 13. It is also to be borne in mind that in a criminal case, though the prosecution is required to prove the charge by evidence beyond reasonable prove, the burden of the accused to prove a defence plea is not that stringent. It is sufficient, if the accused can probabilise the defence by adducing some credible evidence, reason being that, the standard of proof to establish a defence plea cannot be higher than that of preponderance of probability. In the instant case, the evidence of DW-1 and DW-2 clearly suggested, that as the vehicle was overloaded, some of the articles were left in the house of the petitioner to be transported later on. The statement of the petitioner during examination under Section 313 Cr.P.C. that he informed the PW-3 over phone before leaving some of the articles in his house, also finds support from the evidence of PW-1 as according to PW-1, immediately after two days PW-3 accompanied by Superintending Engineer visited the godown to enquire about the quantum of articles lifted by the petitioner. Though, PW-3 stated in his evidence that he came to know only on 18.06.2003 and he was not informed by the accused, the oral testimony of PW-1 appears to have belied such version of PW-3. Though, PW-3 stated in his evidence that he came to know only on 18.06.2003 and he was not informed by the accused, the oral testimony of PW-1 appears to have belied such version of PW-3. What is therefore, evident from the materials brought on record is that defence plea of the petitioner, that he did not have any dishonest intention to misappropriate the articles entrusted to him and that he left some of the articles in his house only on the request of the driver of the vehicle and with prior information to PW-3, received support from the oral testimony of the DW-1 and DW-2 as well as PW-1. Therefore, evidently, the petitioner has been able to establish his defence, that as the road condition was not good and the driver was reluctant to carry all the articles because of overload, some of the articles were kept in the house of the petitioner with information to PW-3. In the above facts and circumstances, the defence put forward by the petitioner could not have brushed aside, ignoring the evidence of DW-1 & DW-2, which supported the statement of the petitioner, in his examined under Section 313 Cr.P.C.. When, accused has adduced credible evidence amply probabilising his defence plea, indicating that the petitioner had no dishonest intention to misappropriate the articles and he kept the articles only to reduce the load of the truck and to carry subsequently, on the advice of the driver, that too, with the information to PW-3, the prosecution can by no stretch of imagination be held to have provide beyond reasonable doubt that the petitioner had dishonest intention to misappropriate the articles entrusted to him. Apparently, the articles were not utilized for his own use or disposed off by the petitioner as the same were seized by police. 14. In the above facts and circumstances, when the petitioner has been able to probabilise the defence plea, the petitioner atleast ought to have been given benefit of doubt, inasmuch as, on the basis of the above evidence prosecution could not be held to have proved all the essential ingredients to constitute an offence under Section 409 IPC beyond reasonable doubt. In the above facts and circumstances, when the petitioner has been able to probabilise the defence plea, the petitioner atleast ought to have been given benefit of doubt, inasmuch as, on the basis of the above evidence prosecution could not be held to have proved all the essential ingredients to constitute an offence under Section 409 IPC beyond reasonable doubt. Since in order to constitute an offence under Section 409 IPC, dishonest misappropriation is an essential ingredient, which, prosecution is found to have failed to established beyond doubt, the conviction and sentence of the petitioner, in my considered view, is not sustainable and deserves to be set aside. Accordingly, conviction and sentence of the accused/petitioner is set aside and the revision petition stands allowed. 15. Bail bond stands discharged. 16. Send down the LCR.