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2020 DIGILAW 65 (GAU)

Pankaj Das v. Gajen Baishya

2020-01-22

AJIT BORTHAKUR

body2020
JUDGMENT Ajit Borthakur, J. - Heard Mr. P.P. Das, learned counsel for the appellant and Mr. N. Sarkar, learned counsel appearing for the respondent No. 1. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam appearing for the State/respondent No. 2. 2. By this appeal under Section 378 (4) Cr.P.C., the appellant/complainant has prayed for setting aside the impugned Judgment & Order, dated 08.05.2017, passed by the Court of learned Judicial Magistrate, 1st Class, Hajo in C.R. Case No. 12/2014 acquitting the accused/respondent No. 1 from the offence under Section 406 of the IPC. 3. On 01.12.2012, the appellant lodged an FIR before the Officer-in-Charge of Sualkuchi P.S. alleging that on 19.11.2012, the respondent No. 1, Sri Gajen Baishya, who is an employee of Madhya Sualkuchi Grahok Samobai Bhandar Limited, received an amount of Rs. 1,20,000/- from the Society to purchase some grocery items from Guwahati for the said Society. On the same day evening, the respondent No. 1 returned from Guwahati and reported that some culprits took away the said money from him. In the said FIR, the appellant alleged that the respondent No.1 misappropriated the said amount of the Society. 4. Based on the above FIR, Sualkuchi P.S. Case No. 94/2012, under Sections 420/506 of the IPC was registered and police, after completion of investigation, submitted final report. On objection being filed by the appellant to the said final report, the learned trial Court registered the case as C.R. Case No. 12/2014. 5. In order to establish the charge under Section 406 of the IPC against the respondent No. 1, the appellant/complainant examined 4 witnesses including himself and exhibited 5 documents. The defence did not examine any witness. After completion of evidence, the learned trial Court did not record the statement of the accused/respondent No. 1 under Section 313 Cr.P.C. On appreciation of the evidence and hearing the arguments advanced by both sides, the learned trial Court acquitted the accused/respondent No. 1 of the charge under Section 406 of the IPC and set at liberty. 6. Mr. P.P. Das, learned counsel for the appellant/complainant, submits that while recording acquittal of the accused/respondent No. 1, the evidence was not appreciated from proper perspective. Mr. Das submits that there did not exist any material contradictions between the evidence of the complainant and complaint petition filed by him. Mr. 6. Mr. P.P. Das, learned counsel for the appellant/complainant, submits that while recording acquittal of the accused/respondent No. 1, the evidence was not appreciated from proper perspective. Mr. Das submits that there did not exist any material contradictions between the evidence of the complainant and complaint petition filed by him. Mr. Das, further submits that the learned trial Court, while appreciating the evidence of P.W. 1, wrongly came to the conclusion that P.W. 1 failed to show as to how the money was misappropriated by the respondent No. 1. Mr. Das also submits that the learned trial Court completely failed to consider the evidence of P.W. 2, who accompanied the respondent No. 2 to Guwahati from proper perspective and as such, the entire judgment and order, passed by the learned trial Court is liable to be set aside and quashed. 7. Per contra, Mr. B.B. Gogoi, learned Additional Public Prosecutor, appearing for the State/respondent No. 2, submits that the presumption of innocence being in favour of the accused, the views of the learned trial Court as to the credibility of the testimony of the witnesses should be given due weight and further, while deciding an appeal against acquittal, the High Court should be slow to disturb the finding of the trial Court which is at the advantage of observing the witnesses. Mr. Gogoi, therefore, submits that there is no substantial and compelling reasons apparent on evidence in the impugned judgment and order requiring this Court to come to a different finding. 8. Mr. N. Sarkar, learned counsel for the respondent No. 1, submits that although there is no bar in reappreciating the evidence on record in an appeal filed against acquittal, this Court may not substitute the reasons recorded by the learned trial Court unless the same appear to be absolutely perverse. 9. According to Mr. Sarkar, the prosecution evidence does not establish beyond all reasonable doubt that the accused/respondent No. 1 did actually commit the breach of trust in respect of the said amount entrusted to him by the Society to purchase some articles from Guwahati for the Society as there was no direct eye witness to the alleged incident that took place at a public place in broad day light and when the respondent No. 1 himself filed an FIR immediately after the incident against the unknown culprits. 10. Mr. 10. Mr. Sarkar emphatically submits that the offence of criminal breach of trust presupposes a dishonest misappropriation, conversion, use and disposal thereof, which are not proved by evidence in the case. 11. I have given due consideration to the above arguments of both sides and perused record. 12. In the instant case, it appears that by filing the FIR, dated 01.12.2012, it was, inter-alia, alleged that the respondent No. 1, who was an employee of the complainant Society, was entrusted Rs. 1,20,000/- acknowledging the receipt of the same for the purpose of purchasing goods in Guwahati for the Society and he left for Guwahati by a vehicle, bearing Registration No. AS-01-CC0044. In course of the journey, from Sualkuchi to Guwahati, at Machkhowa, some miscreants took away the aforesaid amount of money admittedly entrusted to him. 13. From the evidence of P.W. 1, Sri Pankaj Das, it appears that on the date of the alleged occurrence, the respondent No. 1/ accused was accompanied by Sarbeswar Baishya, P.W. 2. They went to Guwahati by a D.I. vehicle and on the way some miscreants, as reported by respondent No.1, took away the money by cutting the bag which he carried, with a sharp instrument like blade. In this connection, the respondent No. 1/accused filed an FIR at Bharalumukh P.S., Guwahati and P.W. 1 met him in front of the said police station. However, the appellant Society filed an FIR at Sualkuchi P.S. without showing Sarbeswar Baishya as the other accused in the case. 14. P.W. 2, Sarbeswar Baishya has corroborated the evidence of P.W. 1 deposing, of course, further that at the time of the alleged occurrence, he was sitting in the vehicle and the driver and the respondent No. 1/accused left the vehicle and then, they lifted the grocery articles at Machkhowa at about 11 a.m. By the time, they lifted the articles, he was at the shop and at that time, the accused/respondent No. 1 reported that the money was taken away from his bag by some miscreants. He saw the bag was cut. 15. P.W. 3, Brajen Thakuria, the driver of the DI vehicle, stated to have not seen any miscreants committing theft of the money from the respondent No. 1/accused. He has corroborated the incident as a heresay witness. He saw the bag was cut. 15. P.W. 3, Brajen Thakuria, the driver of the DI vehicle, stated to have not seen any miscreants committing theft of the money from the respondent No. 1/accused. He has corroborated the incident as a heresay witness. Therefore, it is seen from the evidence that although the respondent No. 1/accused has not denied entrustment of the aforesaid amount from the Society for the purpose of buying grocery items at Guwahati for the Society, there is no evidence whatsoever showing that he misappropriated the said sum of money by falsely stating that some miscreants had taken away the money by cutting his bag with some sharp cutting weapon. 16. It is apparently clear from the cross-examination of the witnesses aforementioned that immediately after the incident was detected, the respondent No. 1/accused proceeded to Bharalumukh P.S. and filed an FIR in connection with the incident. On the other hand, Sualkuchi P.S. Case No. 94/2012 was registered on the basis of the FIR lodged by the appellant/complainant and after completion of investigation, the final report was submitted. Therefore, this Court finds that the ingredients of the offence under Section 406 of the IPC has not been proved in this case beyond all reasonable doubt. The appellant/complainant''s case appears to be based on pure suspicion against the respondent No. 1/accused which does not substitute any legal evidence. 17. Considered thus, this Court finds that the reasons recorded by the learned trial Court in support of arriving at an inference that the respondent No. 1/accused was not guilty of the charge appears to be not perverse requiring any interference by this Court. 18. Accordingly, the appeal stands dismissed. 19. Appeal stands disposed off. 20. Return the LCR.