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2020 DIGILAW 261 (GAU)

Musst Anowara Begum v. State Of Assam

2020-02-24

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. P. Mahanta, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 1 and Mr. B. Sinha, learned counsel for the accused/respondent No. 2. 2. This revision petition under Section 401/397 read with Section 482 Cr.P.C. is directed against the Judgment and Order, dated 12.03.2010, passed by the learned Addl. Sessions Judge, FTC, Sonitpur, Tezpur in Crl. Appeal No. 17(S-2)/2006 reversing the Judgment and Order of conviction, dated 30.05.2006, passed by the learned Chief Judicial Magistrate, Sonitpur, Tezpur in G.R. Case No. 1498/1999 under Section 409 of the IPC. 3. The Petitioner filed an F.I.R., on 02.12.1999, before the In-charge of Borghat O.P., under Tezpur P.S. alleging, inter-alia, that the respondent No. 2, who was the Superintendant of Samadhara Senior Madrassa did not pay the arrear salary of the petitioner, who was the Assistant Teacher of the said Madrassa, for a period of seven months, from April to October, 1997 amounting to Rs. 27,790/-, which he had drawn from the authority, but misappropriated her said arrear salary. In this connection, the petitioner filed complaint to the departmental superior authority. 4. Based on the above FIR, Borghat O.P, G.D.E. No. 46, dated 02.12.1999, was made and on being forwarded, registered as Tezpur P.S. Case No. 684/99 under Section 409 of the IPC, dated 03.12.1999. After completion of investigation, the police laid a charge-sheet under Section 409 of the IPC against the respondent No. 2. The learned Chief Judicial Magistrate, Sonitpur framed a charge accordingly. The respondent No. 2 pleaded not guilty. After trial, the learned Chief Judicial Magistrate, Sonitpur convicted and sentenced the respondent No. 2 to undergo rigorous imprisonment for 2 (two) years and to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment for 2 (two) months under Section 409 of the IPC vide the Judgment and Order, dated 30.05.2006, passed in G.R. Case No. 1498/1999. On appeal by the respondent No. 2, the learned Addl. Sessions Judge, FTC, Sonitpur reversed the aforesaid judgment and order of his conviction and acquitted him of the charge vide the Judgment and Order, dated 12.03.2010, passed in Crl. Appeal No. 17(S-2)/2006. 5. Mr. On appeal by the respondent No. 2, the learned Addl. Sessions Judge, FTC, Sonitpur reversed the aforesaid judgment and order of his conviction and acquitted him of the charge vide the Judgment and Order, dated 12.03.2010, passed in Crl. Appeal No. 17(S-2)/2006. 5. Mr. P. Mahanta, learned counsel for the informant/petitioner, submitted that the impugned judgment of acquittal was based on absolute misreading of the provisions of Sections 405 and 409 of the IPC inasmuch as the accused/respondent No. 2 being the head of the Madrassa discharged the duty of drawing and disbursing of the salary of the staff and as such, exercised responsibility/dominion over the salary, he had drawn from the department till disbursement to the concerned staff. Mr. Mahanta further submitted that the learned appellate Court overlooked the procedure of drawing and disbursement of salary to the Madrassa staff as no salary was allowed to be received without obtaining signature of the concerned incumbent on the acquaintance roll. 6. Per contra, Mr. D. Das, learned Additional Public Prosecutor, submitted that the Govt. of Assam has not preferred revision against the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge. Mr. Das submitted that the evidence of P.W. 2, the informant/petitioner herein shows that she did not sign on the acquaintance roll and signed on the utilization certificate, on 07.02.1998 against serial No. 9, but the investigating officer did not send the documents to the Forensic Science Laboratory (''FSL'' for short) for handwriting expert''s opinion rendering her allegation not proved beyond reasonable doubt. 7. Denying the argument of Mr. P. Mahanta, the learned counsel for the petitioner, Mr. B. Sinha, learned counsel for the respondent No. 2, submitted that although the petitioner was the Superintendant of the Madrassa and as such, was a public servant not removable from service without prior sanction of the state government, he was protected under Section 197 Cr.P.C., and in this case, no prior sanction for his prosecution was obtained in spite of the allegation pertained to his official duty and on this count alone, the acquittal of the respondent No. 2 cannot be reversed in revision. Mr. Mr. Sinha further submitted that the respondent No. 2 duly disbursed the salary due to the petitioner (P.W. 2) and accordingly, she put her signature against the serial No. 9 of the utilization certificate and she promised to put her signature on the acquaintance roll, when revenue stamp was available, but later on she did not sign on it and made a false and fabricated story that her arrear salary was not paid as part of a big conspiracy that was going on against the respondent No. 2 by a section of staff and others of the Madrassa. 8. I have given due consideration to the above arguments advanced by the learned counsel of both sides and perused records. 9. It may pertinently be mentioned that in a catena of judgments rendered by the Apex Court it has been held that in a revision, the High Court can set aside judgment of acquittal and order retrial only when there exists a manifest illegality in the judgment of the Court of Session ordering the acquittal or when there is a gross miscarriage of justice. However, the High Court should not interfere even if a wrong view is taken or even if there is misappreciation of evidence. The High Court can set aside an acquittal if there is error on a point of law or no appraisal of the evidence at all. When the government has not chosen to appeal against acquittal, it is not the duty of the High Court to reweigh the evidence from its point of view and reach a contrary inference. 10. With regard to the first argument that no prosecution sanction was obtained by the prosecution to prosecute the petitioner, who was a public servant by virtue of the post of Superintendant of Samadhara Senior Madrassa he held, was protected under Section 197 Cr.P.C., it needs to be mentioned that the question of necessity of sanction depends upon the facts and circumstances of a case. For invoking the benefit of Section 197 Cr.P.C. two conditions must co-exist, namely (i) that the accused is a public servant not removable from his office save by or with the sanction of the State Government or Central Government; and (ii) he must be accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Without going deep into the question whether the respondent No. 2 is a public servant, this Court finds that the said protection is not available to him as he is removable from his office without prior sanction of the state government, he being removable by specific authority under the government. 11. So far the second argument of non-payment of arrear salary for seven months to the petitioner and misappropriation thereof by the respondent No. 2 is concerned, it appears that the evidence led by both sides give rise to two sets of views. The P.Ws corroborated the evidence given by the petitioner (P.W. 2) showing the arrear salary was not paid to the P.W. 2, whereas the D.Ws supported the stand taken by the respondent No. 2 that the drawn amount was disbursed to the petitioner (P.W. 2) although she did not sign on the acquaintance roll for want of required revenue stamp, assuring to sign thereon when revenue stamp was available, but put her signature on the utilization certificate acknowledging receipt of the arrear salary. 12. A perusal of the evidence of P.W. 2, the informant/petitioner and P.W. 5, the then Incharge Superintendent of the Madrassa reveals that as per procedure, the salary bills were prepared in the Madrassa under signature of the Superintendent and counter-signed by the Inspector of Schools and then, the sanctioned amounts of salary were disbursed to the teaching staff and non-teaching staff concerned. It is also revealed that disbursement was done in cash obtaining signatures on revenue stamps in the common acquaintance roll and on the utilization certificate without revenue stamp while acknowledging receipt of salary. The evidence of P.W. 11, the investigating officer, shows that in connection with the case, he seized the acquaintance roll of the Madrassa of the relevant period vide Ext. 2, the seizure memo, but did not seize the utilization certificate as it was not shown to him. From the evidence of the P.Ws and D.Ws, thus, it is crystal clear that both the common acquaintance roll and the common utilization certificate are the integral/co-existent documents required to be signed by each staff while acknowledging receipt of their salary. According to P.W. 5, M. Ext. From the evidence of the P.Ws and D.Ws, thus, it is crystal clear that both the common acquaintance roll and the common utilization certificate are the integral/co-existent documents required to be signed by each staff while acknowledging receipt of their salary. According to P.W. 5, M. Ext. 1, the Acquaintance Roll, which covered the relevant period, did not contain signature of the accused/respondent No. 2 although written by him, did not bear the certificate of the Inspector of Schools too and further, the said roll was without pagination. He (P.W. 5), of course, denied the defence suggestion that the said M. Ext. 1, the Acquaintance Roll was a false and fabricated document prepared in connivance with the staff of the Madrassa, who signed thereon. It is surprising to notice that the prosecution did not show the said acquaintance roll to the P.W. 2, the informant/petitioner. She, however, denied to have put signature on the utilization certificate acknowledging receipt of her arrear salary, which document, the defence exhibited as Exts. ''Ka'' ''Kha'' and ''Ga'' (three pages) containing the signatures of the staff of the Madrassa and the disputed signatures of P.W. 2, the petitioner against serial No. 9. This Court finds that the utilization certificate which bears acknowledgement of receipt of salary in addition to the acquaintance roll was being an integral/co-existent document thereof as a second vital official document must have been seized during investigation and forwarded to the hand-writing expert for examination of the disputed signature of P.W. 2 the informant/petitioner in view of the two clear sets of evidence, one led by the prosecution and the other by the defence apparently opposed to each other and on the other hand, when as per Section 45 of the Indian Evidence Act, the expert opinion is a relevant fact in such a proceeding. 13. In Bihari Nath Goswami Vs. Shiv Kumar Singh and Ors., (2004) 9 SCC 186 , the apex Court held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. 14. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. 14. In view of the above reasons and applying the principle laid in Bihari Nath Goswami (Supra), this Court sees no reason to interfere in the impugned judgment and order of acquittal of the respondent No. 2 and accordingly, the revision stands dismissed. Revision stands disposed off.