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2018 DIGILAW 2314 (JHR)

Amit Kumar Ghosh v. State of Jharkhand

2018-10-23

RONGON MUKHOPADHYAY

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JUDGMENT : R. MUKHOPADHYAY, J. Heard Mr. Shresth Gautam, learned counsel for the petitioner and Mr. Krishna Shankar, learned A.P.P. for the State. 2. This application is directed against the judgment dated 23.06.2014 passed by the learned Additional Sessions Judge-Ist, Sahibganj in Criminal Appeal No. 95/2013, whereby and whereunder the judgment and order of conviction dated 02.08.2013 passed in connection with Borio (Jirwabari) P.S. Case No. 19/2010, corresponding to G.R. Case No. 38/2010 (T.R. No. 81/2013), by the learned Sub-Divisional Judicial Magistrate, Sahibganj, convicting the petitioner for the offence punishable under Section 420 of the Indian Penal Code has been affirmed whereas the sentence of R.I. for 1 year and a fine of Rs. 5,000/-has been modified and the petitioner has been directed to be released on furnishing a bond of Rs. 5,000/-for keeping peace and good behavior for a period of two years. 3. The prosecution story in brief is that a letter dated 10.01.2010 from S.P., Dhanbad was received in the office of S.P., Sahibganj regarding information about the petitioner. It has been alleged that the petitioner was appointed in Dhanbad Police force as a constable having District Brass No. 934. The petitioner was also working in Sahibganj Police Force having District Brass No. 387. An information was sought for about the petitioner from Sahibganj Police which was supplied. It has been alleged that on 07.02.2010 S.P., Dhanbad had informed his counter part at Sahibganj that the petitioner has joined at Sahibganj as a constable without his resignation and he was taking salary from both the places. It was alleged that the petitioner had secured employment in both the places by giving different birth certificates. 4. Based on the aforesaid allegation Borio (Jirwabari) P.S. Case No. 19/2010 was instituted in which after investigation charge-sheet was submitted under Sections 467, 468, 471 and 420 of the Indian Penal Code. After cognizance was taken charge was framed under Sections 467, 468, 471 and 420 of the Indian Penal Code to which the petitioner pleaded not guilty and claimed to be tried. 5. In course of trial seven witnesses were examined on behalf of the prosecution. P.W.1 (Awadh Bihari Singh) has supported the prosecution case. This witness has identified his signature over memo no. 497 dated 23.01.2010 which has been marked as Exhibit-1. In cross-examination he has stated that he was not working in Sahibganj when the petitioner had joined there. 5. In course of trial seven witnesses were examined on behalf of the prosecution. P.W.1 (Awadh Bihari Singh) has supported the prosecution case. This witness has identified his signature over memo no. 497 dated 23.01.2010 which has been marked as Exhibit-1. In cross-examination he has stated that he was not working in Sahibganj when the petitioner had joined there. P.W.2 (Sant Kumar Pathak) has stated that a letter was received from the office of S.P., Dhanbad seeking information on eight points regarding the details of the petitioner. He has stated that the petitioner was drawing salary both from Dhanbad as well as from Sahibganj. P.W.3 (Krit Bhushan Baski) has stated that on 03.10.2009 he was working as a Subedar in-charge at Sahibganj. He has stated that one Nirmal Jha had brought a letter from S.P., Dhanbad seeking information about the petitioner and it was Nirmal Jha who had informed him that the petitioner was taking salary from both Dhanbad and Sahibganj. This witness has stated that the typed report was prepared under his signature which was proved and marked as Exhibit-2. He has also identified letter no. 189 dated 10.01.2010 which was marked as Exhibit-3. P.W.4 (Ashish Ranjan) has stated about Nirmal Jha arriving at the Police Office, Sahibganj and making inquiries about the details of the petitioner. He has stated that the petitioner was taking salary from Dhanbad as well as from Sahibganj. P.W.5 (Bhola Baitha) is the Investigating Officer who has recorded the statement of the witnesses and on completion of investigation had submitted charge-sheet. P.W.6 (Vijay Pandey) is an A.S.I. of Police who has produced the pay roll of the petitioner from November, 2008 to February, 2010. He has identified the document which has been marked as Exhibit-4. This witness has also produced the School Leaving Certificate which has been marked as Exhibit-5 and he has also identified the appointment order of the petitioner. This witness has also proved order no. 952 dated 06.03.2010 by which direction was given for recovery of the salary amount illegally drawn by the petitioner. P.W.7 (Shyam Srivastava) is the Daftari who has proved the Muster roll which has been marked as Exhibit-8. 6. The defence has examined the petitioner as a witness. This witness has also proved order no. 952 dated 06.03.2010 by which direction was given for recovery of the salary amount illegally drawn by the petitioner. P.W.7 (Shyam Srivastava) is the Daftari who has proved the Muster roll which has been marked as Exhibit-8. 6. The defence has examined the petitioner as a witness. D.W.1 Amit Kumar Ghosh (petitioner) has stated that he had written a letter dated 03.09.2009 tendering his resignation citing ill health of his parents as the reason for such resignation. He has stated that the resignation letter was sent to S.P., Dhanbad under certificate of posting (UPC). He has identified the original certificate of Jharkhand Academic Council showing his date of birth as 02.01.1984 which has been marked as Exhibit-D. 7. It has been submitted by the learned counsel for the petitioner that the prosecution has miserably failed to prove his case against the petitioner. Learned counsel for the petitioner submits that even if assuming there has been some latches on the part of the petitioner the same can tantamount to a dereliction of duty and can in no way invite criminal prosecution. Learned counsel for the petitioner further submits that the employment was secured on the basis of the date of birth of the petitioner as 02.01.1984 and not on the basis of two different certificates showing two different dates of birth and therefore in such circumstances the petitioner deserves to be acquitted from the charges levelled against him. 8. Learned A.P.P., for the State has opposed the prayer made by the petitioner. 9. So far as the allegation with respect to different date of births proof produced by the petitioner is concerned it appears that it is the consistent case of the petitioner on the basis of the certificate issued by the Jharkhand Academic Council that his date of birth is 02.01.1984. There is no proof as could be produced by the prosecution which would indicate that the petitioner had secured employment in both the places by producing different birth certificates. The petitioner has taken a stand that he had already resigned from the service prior to his joining at Sahibganj and the resignation letter was sent under certificate of posting. The receipt of the resignation letter has not been disputed by the prosecution and in fact it appears that the resignation letter was never acted upon. The petitioner has taken a stand that he had already resigned from the service prior to his joining at Sahibganj and the resignation letter was sent under certificate of posting. The receipt of the resignation letter has not been disputed by the prosecution and in fact it appears that the resignation letter was never acted upon. There is also no proof that the petitioner had made attendance simultaneously at Dhanbad as well as at Sahibganj and if the petitioner during the period of three months in question had not marked his attendance the concerned authority dealing with the salary account of the petitioner has transmitted the salary to the account of the petitioner which is in fact a dereliction of duty on the part of the concerned authority. There is no deceivement, fraud or dishonest inducement on the part of the petitioner in transmission of the salary to his account from Dhanbad also as the petitioner seems to have acted bona fide in tendering his resignation at Dhanbad and thereafter joining his post at Sahibganj. No doubt it was a duty cast upon the petitioner to have informed the concerned authorities at Sahibganj also regarding his tendering of resignation at Dhanbad but having not acted upon such duty and responsibility the petitioner cannot be held guilty for committing an act of cheating in fact the learned appellate court has disbelieved the prosecution case but has affirmed the judgment of conviction under Section 420 of the Indian Penal Code with respect to the salary being deposited in the account of the petitioner both from Dhanbad and Sahibganj. 10. As has been held above, no mens rea is present in the act of the petitioner as it was never the intention of the petitioner to accept the salary from Dhanbad also and it is also not the case of the prosecution that the amount of salary which was deposited in the account of the petitioner was withdrawn or misused by him. 11. 11. On such consideration, therefore, I find sufficient force in the argument advanced by the learned counsel for the petitioner and accordingly this application stands allowed and the judgment dated 23.06.2014 passed by the learned Additional Sessions Judge-Ist, Sahibganj in Criminal Appeal No. 95/2013 and the judgment and order of conviction dated 02.08.2013 passed in connection with Borio (Jirwabari) P.S. Case No. 19/2010, corresponding to G.R. Case No. 38/2010 (T.R. No. 81/2013), by the learned Sub-Divisional Judicial Magistrate, Sahibganj, are hereby set aside. 12. This application stands allowed. Application allowed.