Calcutta High Court (Appellete Side)
Baidyanath Khan vs The State Of West Bengal on 31 July, 2015
Author: Shib Sadhan Sadhu
Bench: Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 447 of 2013
Baidyanath Khan
...Appellant
Versus
The State of West Bengal
... Respondent
For the Appellant : Mr. Arnab Chatterjee
Mr. Krishnendu Bhadra
For the State : Mr.Anjan Datta
Heard on : July 06, 2015.
Judgment on : July 31, 2015
Shib Sadhan Sadhu, J.
1. The accused/appellant has preferred this appeal under Section 374 of the Criminal Procedure Code, 1973 against the judgment of conviction and order of sentence dated 30.05.2013 and 31.05.2013 respectively passed in Special Court Case No.5/2009 whereby he has been convicted for offence punishable under Sections 409/467/477 of the Indian Penal Code and has been sentenced to suffer Rigorous Imprisonment of 4 (four) years and to pay a fine of Rs.10,000/- (Ten thousand) and in default thereof to further undergo Rigorous Imprisonment for one year for the offence under Sections 409 IPC and Rigorous Imprisonment of one year and a fine of Rs.2,000/- and in default thereof to further undergo Rigorous Imprisonment for 6(six) months for the combined offences under Sections 467 and 477 IPC. Both the substantive sentences were ordered to run concurrently.
2. The brief relevant facts for the disposal of this appeal are that the accused/appellant was charge-sheeted for the aforesaid offences on the premise that when he was working as cashier in the office of Santipur Block Development Office during the period from 03.02.1995 to 31.02.1998 he made entries in the Cash Book as and when he received the Water Taxes amounting to Rs.14,70,186/- (Rupees Fourteen Lakh Seventy Thousand & One Hundred Eighty Six) only. Verification of records of Ranaghat Treasury and State Bank of India, Ranaghat Branch, revealed that the said amounts were not remitted in the proper head of account. Thus it was evident that after getting the Treasury Challan passed by the Ranaghat Treasury he fraudulently defalcated the said amounts by fabricating the State Bank of India's receipt on the Challans on different dates of the said period and made entries of the amounts on the basis of the said false and fabricated Challans in the Cash Book maintained in the Block Office. It was further alleged that Ranaghat Treasury and State Bank of India, Ranaghat Branch had issued certificate of remittance for the aforesaid period which go to show that the said amounts were not remitted to the relevant head of account.
3. In this regard written complaint was lodged by the Block Development Officer, Santipur before the Officer-in-Charge, Santipur Police Station on the basis of which Santipur P.S. Case No.146/98 dated 18.11.1998 under Sections 409/420/467/468/472/473 IPC was registered. On completion of investigation charge-sheet was submitted under Sections 409/420/467/468/472/473 IPC against the accused/appellant.
4. The Learned Trial Judge on appearance of the accused and on perusal of the materials available on record including the police papers as well as upon hearing the Learned Counsel for the parties framed charge against the accused/appellant under Sections 409/467/477 IPC. The charge was read over and explained to the accused who however, pleaded not guilty to the same and claimed to be tried.
5. In the Trial Court in all 9 (nine) witnesses were examined on behalf of the prosecution. The Written Complaint, Treasury Challans, Seizure Lists, Report of Handwriting Expert, Formal FIR and the Cash Book were admitted into evidence on behalf of the prosecution and were marked as Exhibits 2, 3 (collectively); 1,6 & 7; 8,9 & 10 respectively.
6. The Learned Trial Court proceeded with the trial and after considering all the evidence led by the prosecution oral as well as documentary came to the conclusion that the prosecution has successfully established the charge levelled against the present accused/appellant and accordingly recorded his conviction and sentence as aforesaid by the impugned judgment and order dated 30.05.2013 and 31.05.2013 respectively. Hence the instant appeal.
7. Mr.Arnab Chatterjee, Learned Counsel appearing on behalf of the appellant has taken me through the oral testimonies of P.W.1, P.W.2, P.W.3, P.W.6 and P.W.9 and assailed the impugned judgment on the following grounds:-
i) Although it is alleged by the prosecution that on and from 03.02.1995 to 31.08.1998 the accused/appellant was the Cashier of Santipur Block Development Office but no document was produced to show that during that period he was in service or was in duty as a Cashier. The Joining Report of the appellant was seized but the Job Card of the accused/appellant was not seized by the Investigating Officer. Therefore, prosecution has failed to prove beyond reasonable doubt that the appellant held the post of Cashier during the relevant period of time as alleged.
ii) The Learned Trial Judge recorded the finding that the disputed writings in English available on Treasury Challans (T.R.Form No.7) marked B & D were written by one and the same person who wrote the standard and specimen writing on three sheets of papers dated 21.07.1997 and 16.01.1999 marked A & F but the I.O. (P.W.9) did not disclose in his evidence that the standard and specimen writings /signatures of the accused/appellant were taken in course of investigation and the same was sent for examination. Also the Expert Report does not disclose the name of the person whose standard and specimen writings / signatures were compared with the disputed writings. Therefore, it cannot be said that the disputed writings/signatures are of the accused/appellant.
iii) The Rubber Stamp which was sent for Expert verification was seized from the bank and not from the possession of the accused/appellant. Also the Enquiry Report referred to by P.W.1 or the Treasury Report, Bank Report etc. referred to by P.W.2 were neither seized nor produced in Court. Thus it could not be established beyond doubt that those Challans were not deposited to the bank.
iv) P.W.2 admitted that on receiving money from any farmer towards the Water Tax a receipt is issued to the payee but no such receipt was seized or produced. Therefore, in absence of any such receipts the question of entrustment does not arise.
v) P.W.9 (I.O.) stated in cross-examination that he only sent the handwriting in the relevant entries made in the Cash Book to the Handwriting Expert for verification and report but he did not send the signatures in the said Cash Book. He further stated that the Cash Book was maintained for making entries in respect of collection of Water Tax but in each page of the Cash Book there is no mention that it was for the purpose of Water Tax. Also there is no mention that it was only for the purpose of making entries in respect of collection of Water Tax. Thus the I.O. himself could not confirm that the Cash Book was actually used for making entries in respect of collection of Water Tax or it was used actually for what purpose. On the face of such ambiguity prosecution failed to establish that the Cash Book was only for collection of Water Tax and the entries were made by the accused /appellant but the Learned Trial Judge did not consider such ambiguity and recorded the conviction of the accused/appellant illegally.
8. Summing up all these, Mr. Chatterjee concluded by submitting that there is no clear, cogent or clinching evidence to show that the accused/appellant was entrusted with the alleged sum of money collected towards Water Tax and that he dishonestly misappropriated the same and urged that the appeal deserves to be allowed by setting aside the impugned judgment and order passed by the Learned Trial Court.
9. Mr. Chatterjee, Learned Counsel for the appellant finally submitted that inasmuch as the alleged occurrence took place in the year 1995 and considering the fact that the accused/appellant is now aged about 74 years and also the fact that out of the total sentence of 4 (four) years imprisonment, he has already suffered more than 2 years, some leniency may be shown on the sentence imposed.
10. On the other hand Mr. Anjan Datta, Learned Counsel appearing on behalf of the State wholeheartedly supported the impugned judgment and submitted that there is no reason to convert the finding of conviction arrived at by the Learned Trial Court into a finding of acquittal. According to him the charge levelled against the accused/appellant is amply established by the prosecution evidence beyond any shadow of reasonable doubt and that the Learned Trial Court has righly convicted the accused/appellant. He thus emphasized on dismissal of the appeal.
11. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions. I have also given a meticulous look into the written notes of argument submitted by the Learned Counsel of both sides.
12. In order to appreciate the above contentions it is useful to refer the definition and punishment of criminal breach of trust and related provision provided under Sections 405, 406 & 409 IPC which read as under:-
"405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust.
406. Punishment for criminal breach of trust. _ Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
In order to prove the offence of criminal breach of trust which attracts the provision of Section 409. IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a Cashier of Block Development Office, Santipur dishonestly misappropriates the money, commits criminal breach of trust in respect of that money. In other words, in order to sustain conviction under Section 409, IPC two ingredients are to be proved: namely, i) 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 ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405, IPC. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly I) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the person who entrusted it.
13. It is contended on behalf of the accused/appellant that the prosecution has failed to prove the two essential ingredients of Section 409 IPC e.g. i) the factum of entrustment and ii) factum of misappropriation of the entrusted money. In order to prove the entrustment and misappropriation the prosecution case is that the accused/appellant as Cashier received Water Tax amounting to Rs.14,70,186/- and fraudulently defalcated the said amount by fabricating bank's receipts on the Challans on different dates and made entries of the said amounts on the basis of false and fabricated Challans in the Cash Book. To prove its case, the prosecution has examined P.W.2 Sanjoy Kumar Sarkar, the then Block Development Officer, Santipur., P.W.1 Dilip Kumar Golder, the then employee of State Bank of India, Ranaghat Branch, P.W.3 Debnath Gayen who was attached to the Ranaghat Treasury as Additional Treasury Officer during the period from 1995 to 1998, P.W.6 Barin Das Chowdhury who was the Chief Manager of State Bank of India, Ranaghat Branch during the period from 1998 to 2000 and P.W.9 retired Inspector of Police Arun Kumar Das who is the Investigating Officer.
14. According to the statement of P.W.2 the accused/appellant was the Cashier in the office of the B.D.O., Santipur at the relevant point of time. He stated further that for depositing money from B.D.O. Office three filled in Challans in TR Form No.7 were issued and after depositing money to bank out of those Challans one was kept in the bank, one in the Treasury and one in their Office. The amount is always tendered to the bank by the Cashier and his name is entered in the Challans. Most of the Challans showing deposit of amount to bank were fabricated and in those Challans name of the accused was mentioned. The seal on the Challans was also forged. Though the Challans showed that the amount was deposited to bank but actually the amount was not deposited to bank by the Cashier. The Bank Report showed that the seals on those Challans were not the seals of S.B.I., Ranaghat Branch. He identified the Challans which were marked Ext.3 collectively.
In cross-examination P.W.2 stated that the Cashier used to collect Water Tax from the farmers. He further stated that in case of receiving any money from any farmer towards Water Tax a receipt is issued from their office but he did not see any such receipt. He stated yet further that if any amount is received from any farmer the same is entered into the Cash Book. He disclosed further that although in the Challans name of B.N.Khan has been mentioned but no seal is there below his name since it is not required to be put. He made it clear that Cash can only be deposited to bank by the Cashier and no other person is empowered to deposit cash to bank. Since at the relevant time B.N.Khan (appellant) was the Cashier so he had the power to deposit cash in bank. In course of further cross- examination P.W.2 disclosed that as per the Job Chart issued to Cashier it was the main duty of the Cashier to collect cash from the farmers.
15. P.W.1 deposed that the S.D.O., Ranaghat came to their bank and produced some Challans before the Branch Manager for verification and on enquiry it was found that the amounts mentioned in those Challans were not deposited to their bank and it was also found that the signatures alleged to have been made by the employee of their bank and the seal of their branch were forged. He further deposed that police seized one seal in his presence under a seizure list on which he put his signature.
16. P.W.3 deposed that as per Government Rule if any money is received in B.D.O. Office, the Cashier will fill in three copies of Challans in T.R.Form No.7 and thereafter those Challans will be signed either by the B.D.O. or by the Joint B.D.O. and thereafter the same will be sent to Treasury where the same will be checked and endorsed by the Treasury Officer and thereafter the Cashier of B.D.O. Office will deposit the cash with those Challans to the bank. He further deposed that on verification of the Challans (Ext.3 collectively) with the report of the bank it was found that the amount shown in those Challans was not deposited to the bank.
In cross-examination he stated that as per Treasury Rules it is incumbent duty for the Cashier to fill up Challans in T.R.Form No.7 for depositing money to bank.
17. P.W.6 deposed that the Challans (Ext.3 collectively) are not genuine and the seals appearing on those Challans are all manufactured. In cross-examination he stated that he did not recommend for sending those Challans to any Expert for verification and that for the first time in Court he stated the fact that the Challsns (Ext.3 collectively) are not genuine.
18. P.W.9 deposed that during investigation he arrested the accused Baidya Nath Khan, examined the witnesses and recorded their statements under Section 161 Cr.P.C. and seized the Joining Report of the accused Baidya Nath Khan who was the cashier of Santipur B.D.O. Office at the relevant point of time and the Cash Book from the said office under seizure lists. He also visited Ranaghat Treasury Office and he seized Subsidiary Registrar. He also seized the Challans under a seizure list. He asked a Constable to collect the report of the Handwriting Expert and accordingly he collected the said report. He identified the report, Challans, Cash Book and the Seizure Lists and those were marked accordingly. In cross-examination P.W.9 stated that he only sent the handwriting in the relevant entries made in the Cash Book to the Handwriting Expert for verification and report but he did not send signatures in the said Cash Book. The Cash Book was maintained for making entries in respect of collection of Water Tax but in the Cash Book there is no mention that it was only for the purpose of making entries in respect of collection of Water Tax. He further stated that since the Cash Book was not maintained properly, therefore, there was no adherence of the rules for maintaining Cash Book. Whether the specific amount which was collected towards Water Tax was debited or credited that was not mentioned and so he seized the Cash Book finding irregularities therein. During the course of further cross-examination he disclosed that he did not seize the Job Card in respect of the accused Baidya Nath Khan and that he did not find the name of the Tax Collector who collected Water Tax from public at large. He stated yet further that the Water Tax was paid by the public individually to the office. He did not find any receipt against which Water Tax was collected. He could not collect the entire Receipt Book or the counter parts thereof.
19. From the above, there can be no manner of doubt that the accused/appellant was posted as Casier in Santipur B.D.O. Office during the relevant period and it was his responsibility as Cashier to receive cash and to collect Water Tax from the farmers and to deposit the same in the bank through Treasury by filling in Challans in T.R. Form No.7 and to make entry of the same in the Cash Book. Such fact is not disputed by the accused/appellant and no suggestion was put to the witnesses denying such fact. It also goes undisputed that the Challans (Ext.3 collectively) were prepared by the accused/appellant and those bear his name as the person who tendered the money. These challans also show that the tendered money was on account of realization of Water Tax and the head of account is "Minor Irrigation". The relevant entries in the Cash Book were also made by the accused. The Report of the Handwriting Expert (Ext.8) establishes such fact without leaving any room for doubt. Such report further establishes that the imprint of the seal of the bank put on the said Challans is not genuine.
20. Notwithstanding the fact that the prosecution has proved the handwriting of the accused/appellant on the Challans, Cash Book etc. the accused when confronted with the evidence he did not deny such fact during his examination under Section 313 Cr.P.C., Reference on this score may be made to the question Nos.4,6,8 and 15 and answers thereto given by the accused which are reproduced hereunder:-
Q.4- P.W.2 Sanjoy Kumar Sarkar stated in his evidence that on 18.11.98 he was posted as Block Development Officer, Santipur and at that time you were Cashier in the office of the B.D.O., Santipur and during the period 1995 to 1998 many entries in the Cash Book were not made after receiving money by the office, which as per procedure were required to be done, and said money amounting more than 14,00,000/- was defalcated and after consultation with Treasury Report such defalcation was detected. What do you want to say in this regard?
Ans.- I am innocent.
Q.6.- P.W.2 also stated in hhis evidence that for depositing money from B.D.O. office three filled in challans in T.R. Form No.7 were issued and after depositing money to bank out of those challans one was kept in the bank, one in Treasury and one in their office. He also stated that the amount is always tendered to the bank by the Cashier and his name is entered in the challans. He also stated that most of the challsans showing deposit of amount to bank were fabricated and in those challans your name was mentioned. He also stated that the seal on the challans was also forged and though the challans showed that the amount was deposited to bank, but actually the same was not deposited to bank by you. The Bank Report also showed that the seals on those challans were not the seals of S.B.I., Ranaghat Branch. What do you want to say in this regard?
Ans. I am innocent.
Q.8.- P.W.3 Debnath Gayen in his evidence stated that during the period 1995 to 1998 he was attached to Ranaghat Treasury as Additional Treasury Officer. He also stated that it is the Government rule that if any money is received in B.D.O. office, the Cashiher will fill in 3 challans in T.R. Form No.7 and thereafter the same will be sent to Treasury and the Dealing Assistant of Treasury will check the same and then Treasury Officer or Asistant Treasury Officer will put an endorsement threon and after completion of all the formalities the Cashier of B.D.O. office will deposit the cash with those challans to bank. He also stated that amongst those three challans one is kept in the office of the B.D.O., one is kept in Treasury and the other is kept in the bank. He further stated that all the 44 challans (Ext.3 collectively) bear the signature of the Treasury Officer and on verification of the challans with the report of the bank it was found that the amounts as shown in those challans were not deposited to bank.
What do you want to say in this regard?
Ans. I am innocent.
Q.15.- P.W.9, I.O. of this case, deposed that he investigated this case, arrested you, forwarded you to Court, took you to his custody as per order of the Court. He also examined the employees of B.D.O. office, Santipur, Treasury Officer of Ranaghat Treasury, seized your Joining Report being the Cashier of Santipur B.D.O. office at the relevant point of time, also seized Cash Book of Santipur B.D.O. office, also seized Subsidiary Register containing page Nos.1 to 89 from Ranaghat Treasury Office and also seized challans (Ext.3 collectively). He also stated that he asked the Constable to collect report of hand-writing Expert (Ext.8). He also stated that after receiving complaint from B.D.O., Santipur he started this case against you. He also stated that the entries at page Nos. 1 to 89 of the relevant Cash Book (Ext.10) were made by you. What do you want to say in this regard? Ans. I am innocent.
21. Thus it is seen that the accused/appellant though did not admit in clear terms the factum of entrustment and misappropriation but equally he did not deny the same. Such statements of the accused/appellant being coupled with statements of P.W.s. noted hereinabove sufficiently established the entrustment of the money to the accused/appellant as Cashier of Block Development Office, Santipur. The documentary evidence adduced by the prosecution fully corroborated by the oral evidence adduced by the P.W.s. who are versed with the nature of duties of the appellant has established the factum of entrustment as well as misappropriation beyond any shadow of reasonable doubt.
22. The law is well-settled on the point that once the entrustment of the property is proved, it is incumbent upon the accused to account for it, in terms of the mandate of Section 106 of the Indian Evidence Act which reads as follows:-
"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In the case of a public servant charged with misappropriation of monies, the element of offence of criminal breach of trust will be established if the prosecution proves entrustment of the monies which he was under a duty to account and had not done so. If the failure to account was due to circumstances as pleaded by the accused in defence, then it is for the accused to explain them. It is not the law that the prosecution is to eliminate all possible defences or circumstances which may exonerate the accused. If the facts and circumstances are within the knowledge of the accused then he has to prove them. But in the instant case the accused/appellant has not offered any explanation in his defence to account for the entrusted money far to speak of substantiating such defence by leading any evidence.
23. The fact that no Job Chart has been seized or produced showing the duties of the accused/appellant does not quell the fact that entrustment was made to the accused/appellant. In my opinion the existence or non- existence of trust in any individual does not depend upon the use of legal terminology, but upon the actual facts of the particular case.
24. Coming to the contention that the prosecution has failed to prove that the Cash Book (Ext.10) was only for the purpose of making entry in respect of collection of Water Tax and that the entries therein were made by the accused/appellant, I find that there is no evidence on record so as to hold that in the office of B.D.O., Santipur, two separate Cash Books were kept and maintained and the entries relating to Water Tax receipts were to be made in a Cash Book other than the Ext.10. No such case was made out by the accused/appellant nor any such suggestion was put to P.W.2. Also he did not adduce any evidence to that effect. Thus it is clear that exhibit 10 is the only Cash Book in which the relevant entries in respect of Water Tax collection was made and that too by the accused/appellant.
25. Regarding the contention made by the Learned Counsel appearing for the appellant that since the I.O. (P.W.9) did not disclose in his evidence that the standard and specimen writings/signatures of the accused/appellant were taken in course of investigation it cannot be said that the disputed writings/signatures are of the accused/appellant, I would like to say that it is true that the I.O.(P.W.9) omitted to mention such thing in his evidence but such omission on the part of the I.O. does not or cannot give any mileage to the appellant as from the ordersheet of the record of the Special Court Case No.5/2009 (G.R. Case No.703/98) it appears the I.O. submitted a prayer for taking handwriting of the accused Baidya Nath Khan on 07 .01.1999 and that prayer was allowed and the specimen handwriting of the accused was taken in presence of the Learned Magistrate on 16.01.1999.
26. In so far as the order of sentence is concerned, I think that there is no further scope of showing any leniency. Section 409 IPC enables the Court to award imprisonment for life or imprisonment up to 10 (ten) years along with fine. Therefore, considering the fact that the appellant being a public servant misappropriated a huge sum of money, the punishment awarded by the Learned Trial Court is on the minimum and cannot at all be said to be excessive. As such I find no reason for interfering with the same. Accordingly, even on that score no relief can be granted to the appellant.
27. Consequently, by affirming and maintaining the judgment and order dated 30.05.2013 and 31.05.2013 respectively passed by the Learned Trial Court in Special Court Case No.05 of 2009, the appeal stands dismissed.
28. The case record along with a copy of this judgment be sent back to the Learned Trial Court forthwith.
29. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
(Shib Sadhan Sadhu, J.)