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2020 DIGILAW 278 (GAU)

R. Vanlaltana v. State Of Mizoram

2020-02-25

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. Lalremtluanga, learned counsel appearing for the appellant as well as Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor, Mizoram for the State/respondent No. 1. None appeared for the respondent No. 2/complainant. 2. This appeal is preferred against the Judgment & Order, dated 14.11.2018, passed by the learned Special Judge, Mizoram in SR (PCA) No. 5/2015 (arising out of ACB P.S. Case No. 5/2013, dated 16.09.2013). 3. The prosecution case, in a nutshell, is that the Anti Corruption Bureau [ ACB in short] received a complaint from Pi Vanramchhuangi of Chaltlang Dawrkawn, Aizawl, on 22.07.2013, to the effect that the professional tax deducted from the staff of 2nd IR Battalion, Khawzawl, during the year, 2012 amounting to Rs. 18,99,820/- was not credited to the Government account. Accordingly, a Preliminary Enquiry being No. 12/2013 was registered and the case was endorsed to Inspector B. Lalnghakliana (PW-2), who, after due preliminary enquiry, having found prima facie material reported on the complaint in the affirmative. Pursuant thereto, the Enquiry Officer lodged an FIR with the Superintendent of Police, ACB, Aizawl, whereupon ACB P.S. Case No 5/2013, dated 16.09.2013, under Section 409 of the IPC read with Sections 13(1)(c) & (d) and Section 13(2) of the Prevention of Corruption Act, 1988 ( P.C. Act for short) was registered on 16.09.2013 against the accused/appellant. The case was investigated by Inspector K. Lalnithanga, who, after completion of investigation laid a charge sheet under the aforesaid Sections of law against the accused appellant. Thereafter, the learned Special Judge framed charges as charge sheeted. In course of trial, the prosecution examined 17 witnesses. After closing the evidence of the prosecution side, the statement of the accused/appellant was recorded under Section 313 Cr.P.C. The accused pleaded innocent and inclined to examine himself as a witness in his defence. The accused/appellant accordingly examined himself as DW-1. The prosecution cross examined him. Thereafter, the learned Trial Court on hearing arguments of both sides and appreciation of both sides, convicted the accused/appellant under Section 409 of the IPC and sentenced to undergo rigorous imprisonment for 4 (four) years and to pay fine of Rs. 50,000/-, (Fifty Thousand) only, in default to suffer rigorous imprisonment for 1 (one) year. 4. Mr. Lalremtluanga, learned counsel for the accused/appellant submits that the learned Trial Court committed grave error in appreciating the evidence, oral and documentary, from proper perspective. Mr. 50,000/-, (Fifty Thousand) only, in default to suffer rigorous imprisonment for 1 (one) year. 4. Mr. Lalremtluanga, learned counsel for the accused/appellant submits that the learned Trial Court committed grave error in appreciating the evidence, oral and documentary, from proper perspective. Mr. Lalremtluanga further submits that the learned Trial Court relied on the prosecution sanction order vide Exhibit P.-32 without examining the authority, who issued it, but by an inferior Officer and as such, it cannot conclusively be said that the prosecution sanction of the accused appellant, who was a public servant, has been proved in the case in accordance with law. 5. According to Mr. Lalremtluanga, learned counsel for the accused/appellant, the accused in his examination under Section 313 Cr.P.C. and in his evidence as DW-1 pleaded that he never misappropriated the Professional Tax collected from the salary of the staff and this piece of his evidence-in-chief remained unshaken in cross examination. Mr. Lalremtluanga vehemently submits that the collected money amounting to Rs. 18,84,815/- being public money was kept under safe custody in the Cash Chest of the office under the joint care of him and the Drawing & Disbursing Officer ( D.D.O for short), who was the Commandant concerned, secured by two locks of different patterns and each key was kept by them, that is, the DDO and the Cashier (appellant) and as such, there was no chance for him to open the Cash Chest and to misappropriate the amount. The prosecution has failed to prove as to how it was possible on the part of the accused/appellant to take the money from the Cash Chest and misappropriate the same to his own use. The Commandant, who was the D.D.O. of the Battalion was personally responsible for the amounts drawn on bills signed by him or on his behalf until he had paid it to the person entitled to receive it, on obtaining signatures on the acquittance roll. It is also submitted by Mr. Lalremtluanga, the learned counsel for the accused/appellant, that except PWs 2 and 16, none of the PWs has stated that the accused, in fact, misappropriated the amount the Battalion personnel entrusted to him towards their professional tax. 6. I have considered the above arguments of both sides and perused records. 7. It is also submitted by Mr. Lalremtluanga, the learned counsel for the accused/appellant, that except PWs 2 and 16, none of the PWs has stated that the accused, in fact, misappropriated the amount the Battalion personnel entrusted to him towards their professional tax. 6. I have considered the above arguments of both sides and perused records. 7. In order to establish the offence of criminal breach of trust by public servant, the prosecution is required to establish (a) that the accused, a public servant or a banker or agent, was entrusted with the property, of which he is duty bound to account for; and (b) the accused has committed criminal breach of trust. 8. A perusal of the FIR, dated 16.09.2013, lodged by PW-2, Inspector B. Lalnghakliana, the Enquiry Officer, it is noticed that while working as Cashier, the accused/appellant during the year 2012 deducted an amount of Rs. 18,84,815/- from the salary of the staff of 2nd IR Battalion, Mizoram as Professional Tax and the same was not credited to the State account, through the Treasury. PW-2 in his evidence has supported the facts narrated in the FIR vide Exhibit P.-1. 9. On perusal of the evidence of P.W. 1, Ms. Vanramchhuangi, the complainant, it appears that the incident of misappropriation of the deducted professional tax of the Battalion staff was known to her, after RTI reply was received from the SPIO, PHQ, Aizawl and based on the said reply, she filed an FIR requesting the S.P., A.C.B., Mizoram to take action, as per law. P.W. 2 Inspector B. Lalnghakliana, the Enquiry Officer found prima facie evidence that the accused/appellant, who was the Cashier, during the year 2011-2012, deducted a total amount of Rs. 18,84,815/- from the staff of the Battalion towards their professional tax, but did not deposit the aforesaid amount with the Government account and accordingly, he submitted a Preliminary Enquiry Report and further, as instructed, he filed an F.I.R., which was registered as ACB P.S. Case No. 5/2013, dated 16.09.2013. 10. P.W. 3, J. Lalthafamkima, the Deputy Commandant-cum-DDO, 2nd I.R. Bn., corroborated the evidence of P.W. 2 deposing that during the period 2011-2012, the accused/appellant, who was the Cashier deducted the professional tax of the staff from their salary, but did not deposit with the State Tax Department. 10. P.W. 3, J. Lalthafamkima, the Deputy Commandant-cum-DDO, 2nd I.R. Bn., corroborated the evidence of P.W. 2 deposing that during the period 2011-2012, the accused/appellant, who was the Cashier deducted the professional tax of the staff from their salary, but did not deposit with the State Tax Department. The evidence of P.W. 4, Dinesh Kumar, the then Commandant, shows that the accused/appellant, who proceeded on voluntary retirement and who had served as Cashier in the Battalion deducted the professional tax of the staff and did not deposit with the Government account and he exclusively maintained the Cash Chest of the office. P.W. 5, C. Zosangliana, Assistant Commissioner of Taxes, Champhai, interalia, deposed that the deducted assessed professional tax of the staff of 2nd IR Battalion of the financial year, 2012-2013 was not deposited. From the evidence of P.W. 6, SI Sumeona, who worked in the Battalion office since August, 2006 till he was transferred to 3rd Battalion in August, 2013, it appears that the accused/appellant as Cashier and Pay Disbursing Officer (PDO) deducted the professional tax of the staff. According to P.W. 7 K. Rohluana, the then Head Assistant, the accused/appellant, the Cashier deducted Rs. 18,99,820/- as professional tax from the staff, but did not deposit with the Government Account. P.W. 8, H. Ramthlengliana, the Commandant, stated that during the period 2011-2012, the accused/appellant, who was the Cashier, deducted the professional tax of the staff, but did not deposit the collected amount with the Government account. P.W. 9, ASI C. Lalremmawia also stated that the accused/appellant deducted the professional tax of staff during the period 2011-2012, but he did not deposit the collected amount with the Government account. P.W. 10 K. Lalrinliana, the Bill Assistant and Accountant of the said office stood witness to seizure of documents and cash money by the Investigating Officer. 11. P.W.11 S.I.(M) P.C. Lalchhanhima, the Bill Assistant, P.W.12 Inspector Jerry Lalrinsanga of ACB and P.W.13 S.I.(M) Vanlalzuala of ACB stood witness to seizure of documents and cash amounts by the investigating officer (P.W.16). Also P.W.15 Lalruatpuia, Superintendent of Taxes, Champhai deposed to have stood witness to seizure of documents pertaining to professional tax collection and other communications between the Battalion office and his office. P.W.17 Naik J. Lalramnghaka, who served a Assistant to Cashier during the period 2006 to 2013, deposed that he assisted the accused/appellant, who was the Cashier till 07.12.2012. Also P.W.15 Lalruatpuia, Superintendent of Taxes, Champhai deposed to have stood witness to seizure of documents pertaining to professional tax collection and other communications between the Battalion office and his office. P.W.17 Naik J. Lalramnghaka, who served a Assistant to Cashier during the period 2006 to 2013, deposed that he assisted the accused/appellant, who was the Cashier till 07.12.2012. According to him (P.W.17), the Cashier accused/appellant deducted and collected the assessed professional tax from the salary of all staff in three installments during August, September and October, 2012 and kept in his custody. P.W.18 F. Bulliana, Assistant Commandant, recognized the seized material exhibits and his signatures. 12. P.W.16, Inspector K. Lalnithanga, the investigating officer, deposed in respect of the formal aspects of investigation of the case and stated that the investigation revealed that the accused/appellant did not deposit the collected amount of Rs. 18,84,815/- from the staff of the 2nd IR Battalion, Khawzawl with the Department of Taxes, Mizoram and thereby misappropriated the said amount. 13. The accused/appellant in his statement under Section 313 Cr.P.C. admitted that he served as Cashier in the 2nd IR Battalion, Khawzawl during the period 01.02.2011 to 06.12.2012 and he deducted a total sum of Rs. 18,84,815/- from the staff of the Battalion towards their professional tax, which it was his duty to deposit the collected professional tax amount with the State Bank of India, Champhai Branch, through Treasury Challan. He stated that the accused/appellant utilized the aforesaid amount as per direction of the Commandant in construction works of (i) Basket-ball Court and (ii) Multipurpose Hall. 14. D.W.1, the accused/appellant, interalia, stated that the professional tax for 2011-2012 of staff of 2nd IR Battalion was collected from August, 2012. He collected a sum of Rs. 18,84,815/-, on account of professional tax, during the period. In cross-examination, he admitted the defence suggestion that he did not deposit the collected professional tax with the State Bank of India, Champhai Branch, through Treasury Challan. 15. On a detailed scrutiny of the evidence on record, it transpires that the accused/appellant was appointed to the post of Cashier of 2nd IR Battalion, Khawzawl, Mizoram by P.W.8, the then Commandant with immediate effect, on 31.01.2011 vide the Office Order Ext.P.-19 and continued in the said post till he proceeded on voluntary retirement on 31.03.2013 (A/N) vide Ext.P.-13, the release order. It is noticed from the evidence, oral and documentary, that the accused/appellant as Cashier deducted an amount of Rs. 18,99,820/- from all the employees of the Battalion on account of their assessed professional tax during the period August to October, 2012, but the aforesaid collected amount was not deposited with the Government account, that is, the Department of Taxes, Mizoram, through Treasury Challan vide Ext. P.-28, the letter of P.W.4, the then Commandant addressed to P.W.5, the Assistant Commissioner of Taxes, Champhai, Mizoram. The evidence show that the aforesaid cash amount was retained by the accused/appellant without depositing/crediting to the Government account although it was his official duty. Therefore, it is the duty of the accused/appellant as to what he had done to the aforesaid entrusted money of professional tax of the employees of the 2nd IR Battalion, Khawzawl, Mizoram. 16. A perusal of the accused/appellant s statement under Section 313 Cr.P.C and his evidence as D.W.1 reveal unequivocal admission of all the incriminating evidence that emerged from the testimony of the prosecution witnesses and thus reinforced their testimony. The accused/appellant s plea that the aforesaid collected amount of professional tax of employees was spent for construction of Basket-ball Court and Multipurpose Hall of the Battalion, on verbal instructions of higher authority has not been proved by evidence, rather admitted the prosecution case in its entirety, which is to the effect that he misappropriated the collected cash amount on account of professional tax of employees of the Battalion and misappropriated the same without depositing with the Government account. 17. For the reasons, set forth above, this Court is of the considered opinion that there is no legal ground to interfere in the impugned wellreasoned judgment and order of the learned Special Judge, Mizoram except in the sentence part. 18. The record shows that the accused/appellant is aged about 60 years and now left the job on voluntary retirement. On the other hand, he has been serving out the sentence since 14.11.2018, that is, for 1 (one) year 3 (three) months and 13 days and the alleged offence was committed in the year 2011-2012. 18. The record shows that the accused/appellant is aged about 60 years and now left the job on voluntary retirement. On the other hand, he has been serving out the sentence since 14.11.2018, that is, for 1 (one) year 3 (three) months and 13 days and the alleged offence was committed in the year 2011-2012. Therefore, on consideration of these facts, this Court is of the opinion that it will meet the ends of justice, if the sentence of imprisonment is reduced to the period he has already undergone, from rigorous imprisonment for 4 (four) years as imposed by the learned Trial Court. 19. However, no modification is made in respect of the sentence passed as fine and imprisonment, in default of payment of fine. 20. With the above modification in the sentence part, the appeal is partly allowed. 21. The appeal stands disposed off.