JUDGMENT : 1. Heard Mr. J.N. Upadhyay, learned counsel appearing on behalf of the petitioner. 2. Heard Ms. Priya Shrestha, learned A.P.P. appearing on behalf of the State. 3. This criminal revision application has been filed against the judgment dated 10.03.2014 passed by learned Additional Sessions Judge II, West Singhbhum at Chaibasa in Criminal Appeal No.46/2011 whereby the appeal preferred against the judgement dated 30.8.2011 passed in G.R. Case No.161/98 by learned S.D.J.M (Porahat), West Singhbhum has been upheld. The petitioner was held guilty for charges punishable under Section 420/406 of IPC and was sentenced to undergo rigorous imprisonment for two years on each with a fine of Rs.1,000/- and Rs.4,000/- and it was also observed that in default of payment of fine, 15 days and two months respectively simple imprisonment would be undergone by the petitioner. Arguments of the Petitioner 4. Learned counsel for the petitioner submits that the learned courts below have failed to consider that the entire case arises out of an agreement entered into between the parties which was executed by the then Block Development Officer with the present petitioner and the consequences for not executing the work as per the agreement was mentioned in the agreement itself and therefore, no criminal case could have been lodged against the petitioner. Learned counsel also submits that the petitioner had completed the work to the extent of Rs.44,227/- till 12.12.1999, which has been recorded in the judgment passed by the learned appellate court, but this aspect has not been properly considered by the learned appellate court. The learned counsel for the petitioner submits that in the aforesaid circumstances it is not in dispute that the petitioner had executed substantial work pursuant to the agreement and therefore, the entire dispute is in the realm of civil dispute and no case under Section 420/406 is made out against the petitioner. Learned counsel for the petitioner while referring to para 18 of the trial court judgment submitted that for the purposes of execution of the work, the road in the forest area was required to be used, for that, appropriate permission was required to be taken and registration was also required to be done which was the reason for non-completion of the work. He also submits that it has also come in evidence that an application without date was submitted to the Deputy Development Commissioner, West Singhbhum for appropriate order and subsequently, a letter dated 07.03.1998 was issued that the work was related to the period 1995-1996 and the work having not been completed within time was already closed and the petitioner was directed to deposit the amount. Arguments of the Opposite Party 5. Learned counsel appearing on behalf of the opposite party Ms. Priya Shrestha, has opposed the prayer and submits that on the date the F.I.R was instituted, no work was executed by the petitioner and it is not in dispute that the work was to be completed by 31.03.1996 and the petitioner had received a total amount of Rs.79,224/- as advance. Learned counsel submits that the matter relates to development work of the state and as on the date of F.I.R, the measurement report indicated zero work on the ground. She submits that even if the petitioner had executed some work later on, the same has no bearing in the case. Without prejudice to the aforesaid submissions, she submits that even as per the case of the petitioner, out of the amount of Rs.79,224/- received by the petitioner, he had completed the work only to the extent of Rs.44,227/-. She further submits that the petitioner has been rightly convicted for offence under Section 420/406 of Indian Penal Code. She submits that there being no illegality or perversity in the impugned judgements passed by the learned courts below, no interference is called for in revisional jurisdiction by this court. Learned counsel has also submitted that as the matter relates to defalcation of public money, no lenient view may be taken in this case. Findings of this Court 6. She submits that there being no illegality or perversity in the impugned judgements passed by the learned courts below, no interference is called for in revisional jurisdiction by this court. Learned counsel has also submitted that as the matter relates to defalcation of public money, no lenient view may be taken in this case. Findings of this Court 6. After hearing the learned counsel for the parties, this Court finds that the prosecution case in brief is that the Block Development Officer (BDO), Bandgaon reported to officer in charge Keraikella vide his office letter no.266 dated 13.7.98 alleging that the petitioner was given contract work for the Sunischit Rozgar Yogna No.11/95-96 to construct a Primary School Building at Nawada on the estimated cost of Rs.1,86,700/- and on the basis of memo of Deputy Commissioner West Singhbhum agreement was executed and sum of Rs.79,224/- was given to the petitioner and as per agreement the petitioner had to complete the construction work of primary school building by 31.3.96 but the work was not completed within the time and it is alleged that the contractor had taken this amount to embezzle the money. 7. On the basis of the report of BDO, Bandgaon the officer in-charge Keraikeala lodged a case against the petitioner and after investigation cognizance was taken and charges were framed u/s 420, 406 of IPC and the petitioner pleaded not guilty and claimed to be tried. 8. On behalf of the prosecution, altogether five witnesses have been examined and cross examined namely P.W.1 Narayan Mahto, P.W. 2 Rati Bhan Singh (I.O), P.W.3 Bimal the then BDO, Bandgaon (informant) of the case, P.W. 4 Raj Kumar Jha, Assistant Settlement Officer, P.W.5 Prabhakar Singh, Junior Engineer and large number of documents were exhibited. The defence had also examined and cross-examined three witnesses namely D.W.1 – Karam Singh Munda, D.W.2 – Sula Melgandi, D.W.3 – Ram Singh Soy. The defence had also proved some documents and had got exhibited Endorsement book of Yojna No.11/95-96 as Ext. A and the signature of Ram Singh Soy on master roll as Ext. B to B/8. 9. The defence had also examined and cross-examined three witnesses namely D.W.1 – Karam Singh Munda, D.W.2 – Sula Melgandi, D.W.3 – Ram Singh Soy. The defence had also proved some documents and had got exhibited Endorsement book of Yojna No.11/95-96 as Ext. A and the signature of Ram Singh Soy on master roll as Ext. B to B/8. 9. It is not in dispute that the petitioner was awarded the contract work for the Sunischit Rozgar Yogna no.11/95-96 to construct a Primary School Building at Nawada on the estimated cost of Rs.1,86,700/- for which an agreement was executed and as per agreement the petitioner had to complete the construction work of primary school building by 31.3.96. It is also not in dispute that a sum of Rs.79,224/- was given to the petitioner but the work was not completed within the time. 10. P.W. 2 i.e., the Investigating Officer of the case who has interalia stated in his evidence that during course of investigation, he inspected the place of occurrence which was one room house situated near the south of the old school of village Nawada and he mentioned the particulars and during investigation, recorded the statement of witnesses, perused the original documents of Yojna No.11/95-96 and after finding the allegations true submitted the charge sheet. 11. P.W.3, Bimal, who is the informant of the case, has stated in his evidence that on 17.7.96, he was posted as BDO, Bandgaon and his predecessor was Lalan Pandey and successor was Raj Kumar Jha (P.W-4). He has stated that Prabhakar Singh (P.W-5) was posted as Junior Engineer and Narayan Mahto (P.W-1) was the orderly of the BDO. This witness has fully supported the prosecution case and has stated that execution of the work was to be completed till 31.3.96 for which Rs.79,224/- was given to the petitioner but before F.I.R no work was done by him and in this regard Junior Engineer Prabhakar Singh (P.W-5) submitted a measurement report as zero. He has stated in his evidence that petitioner had received Rs.79,624/- as advanced amount including a Cheque of Rs.50,000/- and 300 bags of cement valued Rs.19,224/- for the work. 12. P.W. 5 i.e., Prabhakar Singh has stated that since 1997 to 2000 he was posted as Junior Engineer in Block and the concerned school was in his jurisdiction. This witness has also fully supported the prosecution case. 12. P.W. 5 i.e., Prabhakar Singh has stated that since 1997 to 2000 he was posted as Junior Engineer in Block and the concerned school was in his jurisdiction. This witness has also fully supported the prosecution case. He has stated that as per the order of BDO, he had inspected the place and found that 75% of the work of foundation was done and the valuation of this work was entered into measurement book as Rs.565/- and except this no work was done by the contractor. This witness has stated that material was lying and regarding the inspection of foundation, he had submitted his report to officer in charge which is attached with the record i.e., Ext 3/18. This witness has stated that after visiting the work place, he had submitted report to BDO and officer in charge of Bandgaon P.S and he had mentioned the work as zero in measurement book. This witness has also stated that he had mentioned work as zero in measurement book because the foundation was excavated but later on due to the rain, he saw only 25%. This witness has stated that he exhibited the measurement book as Ext. A in which the work of Rs.44,227/- have been shown and in regard of Yojna more than one measurement book may be possible. 13. So far as the defence evidence is concerned, the petitioner led evidence of two Masons (D.W-1 and D.W-2) who claimed to have worked in execution of the contract work. D.W-1 has stated that the work was done to the extent of 80 to 81 thousand rupees and it was measured that the work was done to the extent of Rs.44,000/-. D.W-2 has stated that the work was done to the extent of Rs. 1 lakh and P.W- 5 had measured the work and submitted the report. D.W-3 has exhibited the master roll (Exhibit- A to A/8) showing payment to labour from 1995 to 1996. 14. From perusal of the impugned judgements, this Court finds that all the prosecution witnesses have fully supported the prosecution case. So far as the defence is concerned, this Court finds that D.W-1 has stated that work was done to the extent of Rs.80 to 81 thousand and D.W-2 has stated that work was done to the extent of Rs. 14. From perusal of the impugned judgements, this Court finds that all the prosecution witnesses have fully supported the prosecution case. So far as the defence is concerned, this Court finds that D.W-1 has stated that work was done to the extent of Rs.80 to 81 thousand and D.W-2 has stated that work was done to the extent of Rs. 1 lakh and D.W-2 has also stated that the work was measured by Junior Engineer and it was done to the extent of Rs. 44,000/-. 15. It was the specific case of the petitioner before the learned lower appellate court recorded in para 15 of the impugned judgement that there was no intention to cheat or embezzle or misappropriate government money as the petitioner had completed the work to the extent of Rs.44,227/- and remaining material was lying and work could not be completed due to non-payment of advance and it was also the specific case of the petitioner before the lower appellate court that even if the petitioner had not completed the work as per the agreement, no criminal case should have been filed and the prosecution has the right to recovery. 16. The learned lower appellate court has considered the aforesaid arguments and has recorded the following findings: “I have gone through the entire evidence and materials available on record and from the appreciation of evidences after hearing both parties and discussions made above I find that there was agreement in between Bir Singh Hembrom contractor and government for the construction of primary school building in village Nawada at the estimated cost of Rs.1,86,700/-and for the constructing of school accused received Rs.79,224/- as advanced and as per the evidence of witness no.5 Prabhakar Singh Junior Engineer, the accused did the work of Rs.44,227/- as per measurement book. It is worthwhile to mention that I admit that the accused had completed the work of Rs.44,227/- till 12.12.99 even then it is true fact that as per agreement he had to complete the work of Yojna till 31.3.96 but not to complete the work within stipulated period also comes in the purview of criminal case. Defence has admitted that Rs.79,224/- has been received as advance but he has not been able to prove that he had completed the work of Rs.79,224/-. Defence has admitted that Rs.79,224/- has been received as advance but he has not been able to prove that he had completed the work of Rs.79,224/-. Thus in this situation accused was liable for the cheating and mis-appropriation of government money and accused was informed that if he will not complete the work till 31.3.96 then action may be taken against him. But in spite of that work was not completed and without any work accused received advance money which is sufficient to prove the case u/s 420 of IPC and 406 IPC and all the PWs have supported the case of the prosecution and appellant has not been able to derive any relevant contradiction and respondent has been able to prove his case beyond shadow of all reasonable doubts. Hence I find no illegibility in the impugned judgment of conviction and sentences regarding offence u/s 420 and 406 of IPC. Hence, conviction and sentence awarded to the appellant by the impugned judgment and sentence u/s 420 and 406 of IPC is hereby affirmed and appeal is dismissed.” 17. This Court finds that there is concurrent findings recorded by the learned courts below that the petitioner had received Rs.79,624/- as advanced amount including a Cheque of Rs.50,000/- and 300 bags of cement valued Rs.19,224/- for the work to be executed and as per the agreement, the work was to be completed by 31.03.1996. The F.I.R was registered on 15.07.1998 on the basis of letter dated 13.07.1998 and on the date of F.I.R, the work done of the spot was shown as zero by the Junior Engineer (P.W-5), who measured the work and he has stated in his evidence that to some foundation excavation work was done valued as Rs.565/-. The learned appellate court has considered the arguments of the petitioner regarding work done to the extent of Rs.44,227/- out of advance of an amount of Rs. 79,624/- which included 300 bags of cement valued Rs.19,224/- till 12.12.1999 which is certainly much after registration of F.I.R on 15.07.1998 and also after filing of charge-sheet and order taking cognizance dated 6.3.1999. This Court finds that the learned court below have recorded consistent finding that on the date of the F.I.R an advance of Rs 79,624/- was already given to the petitioner and very little work was done by the petitioner. This Court finds that the learned court below have recorded consistent finding that on the date of the F.I.R an advance of Rs 79,624/- was already given to the petitioner and very little work was done by the petitioner. It appears that subsequently till 12.12.1999 work done to the extent of Rs.44,227/- was recorded. This Court is of the considered view that subsequent recording of work done by the petitioner to the extent of Rs.44,227/- out of advance amount of Rs. 79,624/- has no bearing in the matter. The learned courts below after appreciating the materials on record have given consistent finding that there was an agreement entered into between the petitioner and the Government for construction of a primary school building in village Nawada at an estimated cost of Rs.1,86,700/- and the petitioner had received an amount of Rs.79,224/- as advance and the F.I.R was instituted on the basis of a report of P.W.5 Prabhakar Singh, Junior Engineer that as per measurement report, no work was in fact executed by the petitioner. It is also not in dispute that the work was to be completed within the stipulated time as per the contract, but on the one hand, the petitioner took the money/material (cement) from the department and on the other hand, he did not use it for the work. This Court is of the considered view that merely because the consequences arising out of non-execution or incompletion of the work mentioned in the agreement, the same does not mean that no criminal case can be instituted against a party to the agreement, if the basic ingredients of the offences under Sections 420/406 is made out. This Court finds that the learned courts below have given a concurrent finding of fact in connection with the satisfaction of basic ingredients of offence and have held the petitioner guilty under Sections 420/406 of Indian Penal Code. This Court has gone through both the judgments and finds that both the judgments are well reasoned orders dealing with every aspect of the matter including the defence arguments advanced on behalf of the petitioner. This Court does not find any illegality or perversity in the impugned judgments calling for any interference. 18. This Court has gone through both the judgments and finds that both the judgments are well reasoned orders dealing with every aspect of the matter including the defence arguments advanced on behalf of the petitioner. This Court does not find any illegality or perversity in the impugned judgments calling for any interference. 18. This Court is also of the view that as the alleged offence relate to dealing with public money therefore no sympathetic view is required to be taken for the petitioner on the point of sentence. 19. Accordingly, the present criminal revision application is hereby dismissed. 20. Bail bonds furnished by the petitioner are hereby cancelled. 21. Pending interlocutory applications, if any, are dismissed as not pressed. 22. Office is directed to send back the lower court records to the court concerned. 23. Let this order be communicated to the learned court below through email/FAX.