Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 396 (JHR)

Vikash Kumar Banerjee v. State of Jharkhand

2019-02-07

SHREE CHANDRASHEKHAR

body2019
ORDER : 1. The petitioner has challenged the judgment in Cr. Appeal No. 193 of 2012, by which the judgment of conviction and order of sentence both dated 28.08.2012 passed in G.R. Case No. 1073 of 2011 converted into T.R. No. 1713 of 2012 have been partly dismissed. 2. By the judgment dated 28.08.2012, the petitioner was convicted for the offence punishable under section 420, 409 and 120B IPC and he has been sentenced to undergo R. I. for 5 years each with fine of Rs. 10,000/- for the offences punishable under sections 409 and 420 IPC and R.I. for 3 years for the offence under section 120B IPC. 3. By the judgment dated 12.12.2012 passed in Cr. Appeal No. 193 of 2012, the conviction and sentence of the appellant for the offence punishable under sections 420 and 120B IPC have been set-aside, however, the conviction and sentence for the offence punishable under section 409 IPC have been affirmed. 4. During the trial in G.R. Case No. 1073 of 2011, the prosecution has examined nine witnesses and produced the Cash Verification Report, Daily Cash Balance Book and the letters of the Bank of India to establish that it was the petitioner and the co-accused- Swapan Kumar Chattopadhyay who were entrusted with Rs. 14,43,841/- on 16.08.2011 this was the closing balance of the bank in the evening of 16.08.2011 and they have misappropriated Rs. 7.60 lakhs which was found deficit in the bank-vault of the bank when it was opened on 17.08.2011. The learned trial Judge by a detailed order, but mainly raising a presumption against the accused-petitioner that he was cashier of the bank and he alongwith the co-accused Swapan Kumar Chattopadhyay are the persons who had possession of the keys of the bank-vault, found him guilty for the offences punishable under sections 409, 420 and 120B IPC. The learned trial Judge has held thus: “19. The accused is charge u/s 420 IPC. Admittedly the accused is a Cashier of Bank of India, Pindrajora Branch, Bokaro. The learned trial Judge has held thus: “19. The accused is charge u/s 420 IPC. Admittedly the accused is a Cashier of Bank of India, Pindrajora Branch, Bokaro. It has come in evidence that the cash balance have been retained in the bank at the closure of the Bank as per daily cash balance book and it has been duly signed by the Cashier and verified by the officer and at the material time This accused along with Swapa Chatopadhayay were made in-charge for doing the said job after closure of bank to verify the cash balance kept reserved in the cash vault. Admittedly cash kept in the cash vault is public money and Rupees Seven lakh sixty thousand have been found shortage and the accused is duty bound to account for cash kept in the cash vault. On verification of the cash amount. Thus certainly due to such shortage wrongful loss was caused to the Nation in general and to the Bank in particular. Thus it is National loss. It is important to note that the accused has given suggestion to PW-1 Mantu Chakravarty in para-36 that the Bank employee have given poison to the accused and in unconscious condition, he was admitted to the hospital and thereafter the bank employee with connivance of Swapan have misappropriated/taken away the cash from the cash Vault. This fact must have to be established by the accused but during examination u/s 313 Cr.P.C. accused has simply stated that he is innocent and denied all the statement comes in evidence. Thus from the aforesaid suggestion goes to show that on 16/8/11 the cash balance was Rs. 14,43,841.50 and 17.08.2011 shortage of Rupees Seven lakh Sixty thousand was found. The accused has failed to prove the fact that as to whether the cash vault or strong room was open at any time prior to the verification by bank employee on 17.08.2011. ..................................... ..................................... It is important to note that all the prosecution witnesses have supported that on 17.08.2011, no cash transaction was done in the bank nor strong room or cash vault was opened. It is not denied by the accused that one key was not kept by him and it is admitted fact that without entering both key the cash vault cannot be opened. It is not denied by the accused that one key was not kept by him and it is admitted fact that without entering both key the cash vault cannot be opened. It is important to note to constitute the offence u/s 409 IPC it is not required that misappropriation must necessarily taken place. Further the accused is a bank employee and in-charge of cash vault having key with him. Further no explanation plausible or concrete fact had been brought on the record to disprove the shortage of Rupees Seven Lakh sixty thousand by which bank has put in loss and since prosecution has proved the shortage of Rupees Seven lakh Sixty thousand from the cash balance of the bank on 17.08.2011. Therefore, in view of the aforesaid circumstance, I found and hold the accused is guilty u/s 420/409/120(B) IPC.” 5. In the concluding paragraph; that is paragraph -19, the trial Judge has committed atleast two serious errors in law. First, it is not for the accused to prove that he has not misappropriated Rs. 7.60 lakhs rather, it is the duty of the prosecution to prove to the hilt the charge under section 409 I.P.C. Secondly, to prove the charge under section 409 I.P.C. it must be established that the accused has committed criminal breach of trust. 6. However, by the judgment dated 28.08.2012 he has been convicted for the aforesaid offences and sentenced to undergo imprisonment as indicated hereinabove. 7. In the appeal preferred by the petitioner, the appellate court has held that the appellant- petitioner who was working as the cashier was the custodian of the bank-vault and under the fear of criminal prosecution after misappropriating Rs. 7.60 lakhs he had consumed poison to shield his crime. His conviction for the offence punishable under section 409 IPC has been affirmed, however, his conviction for the offences under section 420 IPC and under section 120B IPC has been set-aside by holding thus: “10. There is difference between the offence u/s 409 and 420 of the I.P.C. The basic difference between both the sections is that in the case of former, the property is obtained on trust and later on misappropriated, whereas in the case of latter, the property is obtained by deceit and inducement. There is difference between the offence u/s 409 and 420 of the I.P.C. The basic difference between both the sections is that in the case of former, the property is obtained on trust and later on misappropriated, whereas in the case of latter, the property is obtained by deceit and inducement. In the present case, the appellant being entrusted with the property as a cashier of the bank misappropriated the same and therefore, the offence of criminal breach of trust is proved. This is not a case of obtaining property by fraud. I, therefore, find that the ingredients of offence of fraud is not attracted and the charge u/s 420 I.P.C. accordingly fails. The essence of offence of conspiracy is the fact of combination by agreement. The agreement may be expressed or implied. This section seeks to bring within its fold the mere agreement between two or more persons to do or cause any illegal act to be culpable. This section is basically directed against those persons who are not the actual participants of the crime but those who are the conspirators and there is no direct evidence against them of their participation in the crime.” 8. The main contention raised by Mr. Indrajit Sinha, the learned counsel for the petitioner is that once the charge under section 120B IPC has failed, without establishing his independent role in the misappropriation the petitioner cannot be convicted for the offence under section 409 IPC simplicitor. 9. Mr. Pankaj Kumar, the learned A.P.P has, however, supported the appellate judgment primarily contending that once two courts have held against the petitioner, in the revisional jurisdiction this Court would not re-appreciate the evidence. Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 228. The learned APP has further contended that the prosecution evidence is consistent on the point that it is the petitioner and the co-accused who were entrusted with Rs. 14,43,841/- and when the bank-vault was re-opened on 17.08.2011 deficit of Rs. 7.60 lakhs was found. 10. The petitioner and the co-accused Swapan Kumar Chattopadhyay are the persons who, according to the prosecution, were in custody of the bank-vault. The First Information Report was lodged for the offences under section 420, 409 and 120B r/w 34 IPC against the petitioner and the co-accused- Swapan Kumar Chattopadhyay. 7.60 lakhs was found. 10. The petitioner and the co-accused Swapan Kumar Chattopadhyay are the persons who, according to the prosecution, were in custody of the bank-vault. The First Information Report was lodged for the offences under section 420, 409 and 120B r/w 34 IPC against the petitioner and the co-accused- Swapan Kumar Chattopadhyay. The co-accused remained absconder and, therefore, the charge-sheet was filed against the petitioner only for the offences under sections 420, 409 and 120B IPC. The case has gone for trial with a specific stand of the prosecution that there was a conspiracy between the co-accused persons to misappropriate the bank’s money. The appellate court has disbelieved the defence of the petitioner for the reason that he himself had consumed the poison and there was no evidence to the contrary that poison was administered to him by any other person and, therefore, it was an act within the knowledge of the petitioner why he had consumed poison. For this reason, the appellate court has drawn inference against the petitioner under section 106 of the Evidence Act. 11. The inference drawn by the appellate court under section 106 of the Evidence Act is erroneous for the reason that an inference can be drawn under section 106 of the Evidence Act against an accused of an act or omission as alleged, if the accused had special knowledge about a fact which would constitute the offence. The statutory illustration (b) makes it abundantly clear. The inference drawn on consumption of poison, that the petitioner had committed suicide under the fear of losing job and criminal prosecution, to find the charge under section 409 IPC proved cannot be countenanced in law. The appellate court has misunderstood the defence sought to be advanced by the petitioner. Stand taken by the petitioner is that he became unconscious and taken to the hospital and therefore he had no occasion on 17.08.2011 to access the bank-vault and, therefore, the allegation of deficit of Rs. 7.60 lakhs in the bank-vault when it was open in his absence in the evening of 17.08.2011 would not lead to an inference that he is the one who is responsible for deficit of Rs. 7.60 lakhs and, thus, it is not proved that he has committed criminal breach of trust in respect of Rs. 7.60 lakhs from the bank-vault. 7.60 lakhs in the bank-vault when it was open in his absence in the evening of 17.08.2011 would not lead to an inference that he is the one who is responsible for deficit of Rs. 7.60 lakhs and, thus, it is not proved that he has committed criminal breach of trust in respect of Rs. 7.60 lakhs from the bank-vault. The offence under section 120B IPC implies agreement between atleast two persons to commit an offence. The appellate court has held that the charge of conspiracy is superfluous. There is no independent evidence led by the prosecution that it was the petitioner who has taken away Rs. 7.60 lakhs from the bank-vault. The co-accused-Swapan Kumar Chattopadhyay is absconder and it is the prosecution’s own case that both the accused persons are responsible for criminal breach of trust of public money. In the above facts, it cannot be inferred that it was the petitioner who has committed the offence under section 409 I.P.C. 12. There is another error committed by the appellate court. It is the duty of the court to examine whether the charges have been proved or failed. After observing that the charge under section 120B IPC is superfluous, the appellate court has illegally fastened the liability for the offence under section 409 IPC on the petitioner. This is not the prosecution’s case and there is no finding recorded by the courts below that there is independent evidence to hold the petitioner alone guilty for the offence under section 409 IPC. A third case cannot be made out by the court, what has not been set-up by the prosecution. 13. There is another aspect of the matter which needs to be recorded. The appellate court has failed to see the manner in which the accused-petitioner has been examined under section 313 Cr.P.C. The examination of the accused under section 313 Cr.P.C. is recorded on a printed format. It contains only six questions. The circumstances which have been taken against the petitioner, particularly, in the appellate judgment were never put to the accused during his examination under section 313 Cr.P.C. and therefore, those cannot be used against him. Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . 14. In view of the aforesaid discussions, finding serious infirmities in the judgment dated 12.12.2012 passed in Cr. Appeal No. 193 of 2012, it is set-aside. Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 . 14. In view of the aforesaid discussions, finding serious infirmities in the judgment dated 12.12.2012 passed in Cr. Appeal No. 193 of 2012, it is set-aside. The petitioner is acquitted of the criminal charge framed under section 409 I.P.C. He is discharged of liability of bail-bonds furnished by him. 15. In the result, Cr. Rev. No. 49 of 2013 is allowed.