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2018 DIGILAW 1867 (JHR)

Dayanand Bharti v. State of Jharkhand

2018-08-16

RONGON MUKHOPADHYAY

body2018
JUDGMENT : Heard Mr. Suraj Singh, learned counsel for the petitioner and Mr. H.P. Singh, learned A.P.P. for the State. 2. This application is directed against the order dated 16.08.2008 passed by the learned Sessions Judge, Dhanbad in Criminal Appeal No. 94 of 1998 whereby and whereunder the judgment and order of conviction and sentence dated 08.06.1998 passed by the learned Judicial Magistrate 1st class, Dhanbad in Dhanbad (Dhansar) P. S. Case No. 299 of 1994 convicting the petitioner for the offence under Section 406 of I.P.C. and sentencing him to undergo S.I. for 2 years along with a fine of Rs. 2,000/- has been affirmed. 3. It has been stated by the learned counsel for the petitioner that the petitioner was merely an employee of Bengal Bihar Roadways, Govindpur and he was never entrusted with the property for its transportation to S. National Hardware Mart, 21, Ravindra Sarni, Calcutta. Learned counsel submits that surprisingly the driver and the person who had accompanied the driver with the vehicle were never made accused and the petitioner only because of he being a staff of Bengal Bihar Roadways, Govindpur has been made an accused. Learned counsel further submits that there being no evidence on record to suggest that the materials were misused and in absence of there being any entrustment with respect to the petitioner, no ingredients of criminal breach of trust in terms of Section 405 of I.P.C. is made out and therefore the petitioner deserves to be acquitted from the charges levelled against him. 4. The FIR was instituted on the allegation that on 21.05.1994 the informant had loaded about 988 kg. of copper scrap on the truck bearing registration no. AS-01/3787 belonging to Bengal Bihar Roadways, Govindpur. It has been alleged that the petitioner being one of the staff of the Roadways was present at the time of loading with the driver and his brother-in-law Ravindra Bharti. It has also been stated that the consignment was to go to S. National Hardware Mart, 21, Ravindra Sarni, Calcutta-73. The truck started for its destination at 10:30 on 21.05.1994 and when the truck did not reach its destination by 27.05.1994, the informant contacted the petitioner who disclosed that the consignment has been lost and nothing can be done. It has been stated that the petitioner has misappropriated copper scrap worth Rs. 1,00,776/-. The truck started for its destination at 10:30 on 21.05.1994 and when the truck did not reach its destination by 27.05.1994, the informant contacted the petitioner who disclosed that the consignment has been lost and nothing can be done. It has been stated that the petitioner has misappropriated copper scrap worth Rs. 1,00,776/-. Based on the aforesaid allegations, Dhanbad (Dhansar) P.S. Case No. 299 of 1994 was instituted in which after investigation, charge-sheet was submitted under Section 406 of I.P.C. and after cognizance was taken, charge was framed under Section 406 of I.P.C. for which the petitioner pleaded not guilty and claimed to be tried. 5. In course of trial, 5 witnesses have been examined. P.W. 1 – Atanu Mukharjee was one of the staffs of the Bajrangbali Metal Industry, Joraphatak, who has stated that on 21.05.1994, the petitioner along with his brother-in-law Rabindra Bharti and the driver had come to the factory where 988 kg. of copper was loaded on the truck. He has stated that the consignment was destined to S. National Hardware Mart, Calcutta. He has further stated that when on 27.05.1994, the consignment did not reach its destination, the petitioner was contacted who has stated that the same has been misplaced and nothing could be done. In cross-examination, this witness has stated that he is working in the Bajrangbali Metal Industry for the last 5 years and the proprietor of the factory is one Sanjay Poddar. He has further submitted that the copper which was being transported was purchased from BCCL. P.W. 2 – Sanjay Sinha is also a staff of Bajrangbali Metal Industries who has supported the prosecution case. This witness has stated that he looks after the production of the factory. P.W. 3 – Manik Mitra is another staff of Bajrangbali Metal Industry, Joraphatak who has supported the case of the prosecution with respect to loading of 988 kg. of copper in the truck and subsequently when the same did not reach its destination, the petitioner was contacted on which he has stated that the same has been misplaced and nothing can be done. P.W. 4 – Sanjay Kumar Poddar is the informant of the case and the owner of the Bajrangbali Metal Industry, Joraphatak. This witness has supported the prosecution case. P.W. 4 – Sanjay Kumar Poddar is the informant of the case and the owner of the Bajrangbali Metal Industry, Joraphatak. This witness has supported the prosecution case. In cross-examination, he has stated that the petitioner was present at the time of loading of truck and on 27.05.1994 when he was contacted by the owner of the S. National Hardware Mart, Calcutta at telephone, he was informed that the consignment had not reached the said place. He has further stated that on being asked the petitioner has disclosed that there was some defect in the goods and his reply was also vague. This witness has proved the Builty which has been marked as Exhibit 1. He has also proved the written report marked as Exhibit 2. In his cross-examination, he has stated that the copper scrap was purchased from I.C.J., Gomia, BCCL and Bokaro Steel Plant and he has also purchased copper scrap from Usha Beltron, Ranchi. P.W. 5 - Binod Kumar Sinha is the I.O. of the case who has visited the place of occurrence and took the statement of the witnesses under Section 161 of Cr.P.C. and having found the occurrence to be true, so far as the petitioner is concerned, has submitted charge-sheet against him. 6. The learned counsel for the petitioner has merely stressed upon the fact that there was no entrustment so far as the petitioner is concerned, so as to attract the offence under Section 406 of I.P.C. He has also stated that the driver and the brother-in-law of the petitioner namely, Ravindra Kumar Bharti was never proceeded against. It appears that the FIR was instituted against all the 3 accused persons including the petitioner. However, the charge-sheet could not be submitted against the other 2 persons in view of the fact that the Investigating Officer in spite of his best efforts could not procure the address of the said accused persons which led to the charge-sheet having been submitted only against the petitioner. Therefore, it cannot be said that the petitioner merely because he is an employee of Bengal Bihar Roadways, Govindpur has been proceeded against. So far as the witnesses of the prosecution are concerned, all have consistently stated about the petitioner’s presence in loading of 988 kg. of copper scrap on the truck belonging to Bengal Bihar Roadways, Govindpur. The petitioner was admittedly an employee of Bengal Bihar Roadways, Govindpur. So far as the witnesses of the prosecution are concerned, all have consistently stated about the petitioner’s presence in loading of 988 kg. of copper scrap on the truck belonging to Bengal Bihar Roadways, Govindpur. The petitioner was admittedly an employee of Bengal Bihar Roadways, Govindpur. In fact P.W. 1 in his evidence has stated that the petitioner was also one of the persons who had after loading the truck taken the same to Calcutta. In absence of there being any contrary material to counter the evidence of P.W. 4, the informant it is accepted that the petitioner was also one of the persons who along with the driver and his brother-in-law Ravindra Kumar Bharti had taken the truck which subsequently did not reach its place of destination leading to institution of the case. Although, learned counsel for the petitioner has stated that since there was no entrustment, no case under Section 406 of I.P.C. was made out for which he has referred to the case in the case of “Sardar Singh Vs. State of Haryana” reported in AIR 1977 SC 1766 and “Janeshwar Das Aggarwal Vs. State of U.P.” reported in AIR 1981 SC 1646 , but, as has been discussed above, there was a clear cut entrustment of the goods to the petitioner which was subsequently misplaced and therefore, the petitioner cannot be absolved from the criminal liability of being the custodian of the materials which were sent to a firm at Calcutta. It appears that the petitioner and the other accused persons whose addresses could not be procured have acted in concert by deliberately misplacing the copper scrap worth Rs. 1,00,776/-. Therefore, the judgment which have been referred to by the learned counsel for the petitioner is not applicable to the facts and circumstances of the case. 7. In view of the aforesaid, therefore, the learned trial court has rightly convicted the petitioner for the offence under Section 406 of I.P.C. which was also affirmed in the appeal. The same is also affirmed. 8. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing the rigors of prosecution case from 1994 and has also remained for some time in custody. Accordingly, the period of sentence imposed upon the petitioner is modified to the period already undergone by him. 9. 8. However, with respect to the sentence which has been imposed upon the petitioner, it appears that the petitioner is facing the rigors of prosecution case from 1994 and has also remained for some time in custody. Accordingly, the period of sentence imposed upon the petitioner is modified to the period already undergone by him. 9. This application stands dismissed with the aforesaid modification in sentence.