Tripura High Court
Sri Manik Lal Majumder vs The State Of Tripura on 2 May, 2019
Equivalent citations: AIRONLINE 2019 TRI 38
Author: Sanjay Karol
Bench: Sanjay Karol, Arindam Lodh
Page 1 of 53
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 31 of 2013
Sri Manik Lal Majumder
S/o Lt. Balahari Majumder
of Ananya Complex,
Near Bangladesh VISA Office,
Agartala, Tripura (West).
........... Appellant(s).
Versus
The State of Tripura.
(represented by the Secretary-cum
Commissioner, Home Department.)
......... Respondent(s).
_B_E_F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON'BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. D. C. Kabir, Advocate.
For Respondent(s) : Mr. Babul Choudhury, P.P
Date of hearing : 1st & 2nd May, 2019.
Date of judgment : 2nd May, 2019.
Whether fit for reporting :
Yes No
√
J U D G M E N T (ORAL)
(Sanjay Karol, C.J.) It is the stated case of the prosecution that on 05.4.1998, FIR No. 260/1998 was registered against one Ms. Aparna Das at police station West Agartala, and investigated by the Department of Crime (CID), State of Tripura. Though initially investigation was carried out by PW.5, Kshitish Debnath, PW.28, Subrata Chakraborty and PW.4, Subhash Ch. Das but however, on 16.6.1999 the present accused- Manik Lal Majumdar (referred to as the instant accused), who Page 2 of 53 was officiating as the Addl. Superintendent of Police in the very same department, was entrusted with the same. On 30.11.1999 he submitted his Case Diary No.43, indicating that the investigation was closed and the only thing pending was according sanction by the superior authority. Though the prosecution states that there was subsequent investigation but it is a matter of record that on 13.10.2000, the appropriate authority accorded sanction, whereafter on 04.6.2001, the instant accused submitted a summary report which also was approved by the authority on 20.6.2001. [2] Prosecution alleges that despite completion of the investigation; sanction to prosecute the accused, Ms. Aparna Das (referred to as the other accused) accorded and approval of the summary report; the instant accused who was having dominion over the said file, did not submit the final report (charge sheet-challan) or sent the police docket, judicial documents, seized alamat (documents) along with the summary report. Apparently, this was so done for the reason that the instant accused had conspired with the other accused named in the said FIR, and as such by concealing the record, committed an act of criminal breach of trust. The accused also did not respond to the reminders dated 12.2.2004 (Exbt.A) and 1.10.2008 (Exbt.8) sent by the then Superintendent of Police, PW.20, Biswanath Debbarma and PW.8, Soumitra Dhar.
Page 3 of 53[3] Also various acts of malfeasance and misfeasance of the present accused were examined by the department and two reports dated 11.9.2008 (Exbt.8) & 25.4.2009 (Page-324 of the Paper Book) prepared by Anjan Chakraborty (not examined) and PW.32, Sanjoy Roy respectively, placed before the appropriate authority. The matter was then entrusted to PW.4, Subhash Ch. Das for it to be taken to its logical end. Prima facie finding the acts of present accused to be criminal in nature, on 29.6.2009, FIR No.134 of 2009 (hereinafter referred to as the instant FIR) was registered against him at police station West Agartala, under the provisions of Section 409/201 IPC and Section 13(2) of the Prevention of Corruption Act, 1988 (for short, PC Act).
[4] Investigation of the instant FIR was entrusted to PW.32, Sanjoy Roy, Addl. SP, CID who found the accused to have committed the alleged crime and as such upon completion of the investigation, presented the challan for trial in the court.
[5] It is a matter of record that the accused was charged for having committed an offence punishable under Section 409/201 IPC and Section 13(2) of the PC Act. For the purpose of ready reference, the charge as framed is reproduced hereunder:
"CHARGE I, Shri G. Debnath, Special Judge, West Tripura, Agartala do hereby charge you -
Shri Manik Lal Majumder, Page 4 of 53 as follows:-
Firstly, that in between 16-06-1999 to 26.06.2001, you entered into a conspiracy being public servant as I/O of West Agartala P.S. Case No. 260/1998 thereby having dominion over the said case record in your capacity as such public servant in respect of that property did not submit the final report and did not send police docket, judicial docket, seized alamat though summary report was approved by the authority on 20-06-2001, but you did not take any action inspite of repeated reminders and as such being public servant, you committed criminal breach of trust in respect of the aforesaid property and for that you thereby committed an offence punishable under Section 409 IPC and within my cognizance.
Secondly, that during the said period from 16.06.2009 to 20.06.2001 you in a criminal conspiracy being public servant as I/O of the case, dishonestly criminal misconduct by misusing your official position you did not submit the final report and you did not send police docket, judicial docket and seized alamat even after summary report was approved by the authority on 30.06.2001 and did not take any action being I/O inspite of repeated reminders which was under your control and dominion being such public servant and for that you have committed offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and within my cognizance.
Lastly, that you in between 16.06.1999 and on 26.06.2001 at any time under West Agartala P.S. knowing certain offence with criminal breach of trust and criminal misconduct being I/O dominion of property which punishable under Section 409 IPC and Section 13(2) of the Prevention of Corruption Act, 1988 has been committed did cause certain evidence of said offence to wit did not file the final report and did not send the police docket, judicial docket, seized alamat in connection with West Agartala P.S. Case No. 260/1998 under Section 468 IPC and under Section 7/13(1)(A) of PC Act with the intention to screening the accused of that case from legal punishment screening yourself from legal punishment and thereby committed an offence punishable under Section 201 IPC and within my cognizance.
And I hereby direct that you be tried by this Court of Special Judge on the said charge."
[6] It is also a matter of record that to establish the same, beyond reasonable doubt, prosecution examined as many as 32 witnesses. Thereafter, statement of the accused under Section 313 CrPC was also recorded in which he took Page 5 of 53 defence of false implication with an intent of harassment. However, no evidence, in defence was adduced. [7] The trial Court, appreciating the testimonies of the witnesses found the prosecution to have established its case beyond reasonable doubt and, as such convicted the instant accused on all counts and sentenced him to undergo imprisonment for a period of 10 years and pay fine of Rs.5,000/- with a default stipulation, for having committed an offence punishable under Section 409 IPC; rigorous imprisonment for a period of three years and fine of Rs.5,000/- with a default stipulation, for having committed an offence punishable under Section 201 IPC; rigorous imprisonment for a period of seven years and fine of Rs.5,000/- with a default stipulation, for having committed an offence punishable under Section 13(2) of the PC Act. [8] It is a matter of record that the present appeal was admitted on 22.8.2013 and vide interim order dated 12.3.2019 such sentence suspended otherwise the accused was suffering incarceration.
[9] Also this being one of the oldest matters pending on the docket of the Court, matter was taken up for hearing on almost day to day basis.
[10] It is a settled principle of law that the appellate court is duty bound to appreciate and re-appreciate the entire Page 6 of 53 evidence led by the parties. Equally, it is the duty of the court to examine the correctness of the reasoning adopted by the trial Court in recording its findings of conviction or otherwise. [11] Let us first examine as to what weighed with the trial court in convicting the accused. The judgment reading into 59 pages, is dedicated more in the reproduction of the evidence, rather than appreciating and discussing the same. It is in this backdrop, duty of this Court becomes all the more onerous. Be that as it may, as we find, the trial court has assigned seven reasons in arriving at its conclusion, convicting the accused. But essentially what weighed with the court was absence of discharge of burden, cast upon the instant accused, by virtue of Section 106 of the Evidence Act. [12] According to the trial court, since the instant accused was duty bound to have filed the challan/charge sheet in the court, pertaining to the investigation of which he was entrusted, he failed to establish/prima facie show as to what prevented him from doing so, of which, he was under an obligation. Trial court found the accused to have indicated in the records maintained by the CID department that challan stood filed for trial, whereas, it was actually not so done. The defence taken by the accused, of false implication and malicious prosecution, was also not probablized. [13] We now proceed to examine the seven reasons assigned by the court, factual in nature, in arriving at its Page 7 of 53 conclusion, holding the instant accused guilty of the charged offence.
(i) PW.30, Nripendra Kumar Debnath having established the factum of investigation and merits of case, the FIR No.260/1998 registered against accused Aparna Das [Para 15(a)].
(ii) PW.10, Bhaskar Chakraborty, Crime Reader, CID, having established the procedure required to be followed in dealing with the file in the CID department, which was not followed by the accused. To the contrary, entries made in the record of the crime index were got interpolated so as to indicate presentation of the charge sheet. The crime index register recorded the words, „CS‟ [to mean charge sheet][Para -
15(b)].
(iii) PW.19, Sri Amitabha Kar proved that the instant accused was sent reminders (Exbt.13 series) seeking information and record pertaining to the investigation but without any response [Para -15(c)].
(iv) PW.13, Gopal Ch. Dey, in his unrefuted testimony, established that the accused almost pressurized and coerced him to make false entry in the crime index register. According to the trial court, the act of PW.13 is not that of a conspirator but being the junior was "like of accepting the offer of taking poison knowing the same too deadly" and that "general prudence goes to show that an employee irrespective of any post holds the capability of understanding what is wrong practice and what is right practice as far as the official method is concerned Page 8 of 53 considering the existence of his job. But the PW13 knowing fully well succumbed himself into wrong practice as per direction of his superior i.e. accused Manik Lal Majumdar which is beyond the ethics of 106 of the Evidence Act" [Para- 15(d)].
(v) PW.12, Sri Rakhal Ch. Roy; PW.14, Haradhan Chakraborty and PW.22, Dhirendra Ch. Das; established that accused Aparna Das had been visiting and meeting the instant accused in his office, which fact was not contradicted and as such, even though specifically not recorded, in our considered view, presumably there was something intimate/improper between the two, which perhaps was the reason for the instant accused to have shielded her [Para-15(e)]. This fact, he also records in Para 17 of his judgment inter alia, in the following terms:
"17. It is also transpired from the evidence of the witnesses (PWs. Nos. 12,14 & 22) that in number of occasions they had seen the accused of West Agartala P/S Case No. 260/1998 to visit the chamber of the IO. Addl. S.P., CID Manik Lal Majumdar (present accused) and they used to remain in the chamber for a considerable period and at that time there was a red light outside the room and nobody was allowed to enter in to the chamber. From the activities of visiting of an accused (Aparna Das) in the chamber of Investigating Officer as well as from such peculiar circumstances a prudence view can be drawn up that some mal-practice was going on and the outcome of such mal- practice is definitely for their wrongful gain unerringly and the intention of the IO i.e. the present accused was very much crystal clear that he wanted to screen the accused of West Agartala P/S Case No. 260/1998 from the legal punishment and thereby disobeyed the duties entrusted to him and made illegal entry in the relevant register that the charge sheet was submitted without submitting the same, police docket, judicial docket, seized alamats, etc."Page 9 of 53
(vi) PW.9, Asish Ranjan Banik established that the charge sheet had not reached the court of CJM, West Tripura, Agartala, which fact is evident from the GR Register Vol-04 (Exbt.
MO8)[Para-15(f)].
(vi) PW.28, Subrata Chakraborty proved that the crime index of the Circle Inspector, West Agartala office revealed the case to have been disposed of whereas, as per the record of the police station, there was no entry with regard thereto. But while returning such findings why the court observed that the statement of PW.28 is "like putting the cart before the horse" is not clear to us. But then this is what it is so observed [Para-15(g)].
[14] Assailing the reasoning adopted, the conclusion arrived at in the judgment of conviction and sentence, Mr. D C Kabir, learned counsel for the instant accused, has made the following submissions:
(a) At best it is a case of dereliction of duty and nothing more than that.
(b) The instant accused never conducted any material investigation for prior to his having taken charge of the file on 15.6.1999 (Exbt.14), the entire investigation, be it of whatsoever nature, stood completed by his predecessors, namely, PW.5, Kshitish Debnath, PW.28, Subrata Chakraborty and PW.4, Subhash Ch. Das. In fact, had there been any ill intent on the part of the instant accused, he would have delayed the matters for it remained with him for a limited period from 15.6.1999 to 30.11.1999. To the Page 10 of 53 contrary he expedited the matter by taking effective steps for preparing and obtaining orders on the summary report for it to be presented before the Court for trial. The summary report (Exbt.E) was submitted on 04.06.2001 which was approved on 20.06.2001 and on 22.06.2001, order was issued to submit the same as a charge sheet. Pursuant thereto, the file was processed and forwarded to the concerned officer(s) within the department and on 30.06.2001, record maintained by the CID department indicated the charge sheet to have been submitted.
(c) The instant accused stands falsely implicated for the reason that there is professional rivalry between him and PW.8, Saumitra Dhar for both were competing with each other for advancement of their service carrier, in relation to which they had been litigating.
(d) In any case, charge of not sending (i) police docket, (ii) Judicial docket, (iii) seized alamat is ex-facie false and incorrect, for as is evident from the testimony of PW.2, Amal Chakraborty, PW.4, Subhash Ch. Das and PW.31, Ashesh Chakraborty original thereof, was actually found and seized from the court complex.
(e) In the absence of any other person named as a conspirator, charge of conspiracy is wholly misconceived. Noticeably, Aparna Das is neither an accused nor a witness in the instant case.
(f) Above all, most relevant and important material by way of ocular and documentary evidence stands concealed/suppressed by the prosecution. Specific attention is invited to Sankar Pada Ghosh, who in fact authored entry Page 11 of 53 in the disposal register of the CID [Exhibit-MO7 (entry 14)].
(g) Documents MO.4 and MO.5, even to the naked eye reveals the entries made to have been interpolated/forged.
(h) Lastly, both from the ocular as well as documentary evidence, it can be inferred that evidence led by the prosecution only falsifies the charge of missing of documents.
[15] On the other hand, Mr. Babul Choudhury, learned Public Prosecutor, with vehemence, supports the judgment for the reasons assigned therein. [16] The prosecution case primarily rests upon two sets evidence: (i) documentary; and (ii) ocular. In fact, the case is based more on the documentary evidence than the ocular version. The documentary evidence, is indeed voluminous but essentially consists of nine files which are exhibited as material objects (MO) and the ocular evidence primarily rests upon the testimony of PW.13, Sri Gopal Ch. Dey and PW.29, Sri Nityananda Debnath.
[17] Let us first examine the documentary evidence. However, before we deal with the same, there is one crucial and disturbing fact which, at this stage, we must take note of. [18] The FIR in relation to Aparna Das was registered on 05.4.1998. On 13.10.2000, sanction to prosecute her was accorded. Summary report was also approved on 22.6.2001. Page 12 of 53 We find that for more than a decade, no action was taken by any one of the authorities, at any level, for ascertaining as to what really had happened to or in the said case. Why no follow up action was taken in relation to the said crime is not clear. Why no inquired is also not clear. Role of the present accused is confined only for a period of five and a half months (15.6.1999 to 30.11.1999). If the crime branch (department of crime) had indicated the case to have been closed at its end, then at least the concerned police station ought to have pursued the matter and made inquires about the outcome of the FIR so registered by them. Noticeably, such FIR was registered not in the department of crime, but at the police station. Assuming hypothetically that the accused deliberately forged/interpolated the record, then at least, the concerned police station ought to have put in some effort, making inquires as to why for more than a decade, there was no material indicating as to what really had happened in the matter. Not only that, after the matter was placed before the Court was 09.8.1999, which fact is evident from the order sheet, [Exbt.3 page 125 and 126], it was only on 19.9.2009 [as is evident from Exbt-3(i)(page 126)] that the CJM directed the superintendent of police to inquire as to what had happened to the FIR registered against Aparna Das. Why is it the court also did not take any action? For After all, every FIR is placed before the concerned Magistrate who is duty bound to examine the record so placed before him, which in the Page 13 of 53 instant case was not so done for more than over a decade. Curiously, for which there is no explanation, how is it that all of a sudden, on 19.9.2009, the concerned Magistrate got to know of the pendency of the said case. As is evident from the testimony of PW.31, Ashesh Chakraborty as well as the order sheets dated 23.02.1999, 01.3.1999 and 09.8.1999 (Pages 72-74) original of the record was already lying in the court complex and yet no action was taken for such a long period. [19] At this point in time, we may also observe that as per the Police Regulations of Bengal (hereinafter referred to as the Manual), more particularly Regulation 124/126, crime review exercise is necessarily required to be carried out. Also, the circle inspector is duty bound to carry out inspection and submit report from time to time. Significantly, for more than a decade, no such review meeting on the issue of non-filing of the charge sheet or for that matter, progress of the case of Aparna Das was ever discussed. After all, it was not a case of an ordinary crime or an accused person. Also no record of any such meeting stands placed on record. We may also observe that the accused, till the time of initiation of action was assessed and evaluated to be an officer having good conduct. In fact, in the year 2001, he was promoted as the Superintendent of Police and sent on deputation. Page 14 of 53 [20] In view of the aforesaid factual matrix, we now proceed to examine as to whether prosecution has been able to really establish its case, beyond reasonable doubt or not. [21] But before we do that, we take note of the necessary ingredients which the prosecution has to establish for considering an offence in relation to which the accused stands charged.
[22] In so far as the instant facts are concerned, when we read section 409 IPC, we are of the considered view that prosecution has to establish that, (a) there was entrustment of property - there was dominion over the property in capacity as a public servant and (b) there was criminal breach of trust with respect thereto.
[23] Criminal breach of trust stands defined under Section 405 of IPC and the necessary requirement for bringing home the accusation, in our considered view, it is important for the prosecution to prove, conjointly, (i) entrustment of the property, and (ii) the accused actuated by dishonest intention, misappropriated or converted to his own use to the detriment of the person who entrusted the same.
[24] What is „dishonest misappropriation‟ of property finds mention in Section 403 IPC and what is „dishonestly‟ stands defined under Section 24 IPC:
Page 15 of 53
"24. To mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"."
[25] Thus, in our considered view, it is absolutely imperative for the prosecution to have established that the accused with an intent of causing gain to one person, which in the instant case would be Aparna Das, had caused wrongful loss to another person, which in the instant case would be the State, and disposed of the property (Case File) in a manner, other than the one mandated in law, hence committed an act of criminal breach of trust.
[26] Criminal conspiracy is defined under Section 120A. Necessarily such an illegal act can be done only when two or more persons agree to do so. Now in the instant case, who is that other person, the court is not aware, for none other than the instant accused is named or is being prosecuted. The Apex Court has held that for conspiracy two or more persons are required. [See : Gurcharan Singh and Anr. v. State of Punjab, AIR 1956 Supreme Court 460 (3 Judge Bench); Jaswantrai Manilal Akhaney v. The State of Bombay, AIR 1956 Supreme Court 575 (3 Judge Bench)]. Also "who is the conspirator" stands explained in Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr., (2013) 1 SCC 613 (3 Judge Bench).
Page 16 of 53[27] Section 201 deals with the disappearance of evidence or offence of giving false information for screening the offender. The essential ingredients being that a person knowing or having reason to believe that an offence stands committed, causes any evidence of that offence to disappear with an intent of screening the offender, from legal punishment or with that intention, given information in respect of the offence, knowing it or believing it to be false, would cause an offence under the said section. [28] In so far as the PC Act is concerned, learned PP relies upon sub-section 1(c) of Section 13 of the PC Act, for in all fairness he clarifies that charge could not have been framed in relation to sub-section (2) of Section 13 of the PC Act. The necessary ingredient, so as to constitute a crime under sub-section 1(c) of Section 13 would be dishonest or fraudulent misappropriation of any property or conversion thereof for his own use, any property entrusted to him or under his control as a public servant.
[29] We now proceed to discuss the documentary evidence which essentially contains separate set of documents, marked as exhibits.
[30] Exhibit MO.1 contains several documents and one such document being seizure list at Page-162 of the paper book. This document reveals that certain record was seized from the office room of Court Inspector, Sadar police post, Page 17 of 53 Agartala and some of the documents seized, include the original office letter of Food and Civil Supplies Department; original bangla script letter dated 06.11.1998; original bangla script letter dated 07.01.1999; original type script of the type writer machine of SP(SB) Tripura Office, Agartala and other documents which are original in nature. The seizure list runs from Pages 162 to 167. Significantly, all these documents pertain to the case of Aparna Das.
[31] Exhibit.3 of MO.1 [Page 112 of the Paper Book] is the certified copy of various orders passed by the Special Judge, West Tripura, Agartala on different dates. Perusal thereof reveals that
(i) On 23.02.1999 the CJM had observed that "IO of the case has submitted a prayer in connection with the case to pass an order to pack the seized documents and also to pass an order to direct SP(CID) Tripura for arrangement of sending the exhibits to GEQD, Calcutta. Perused the same. Heard learned APP. Considered. The prayer is allowed. Inform accordingly."
(ii) Further on 01.3.1999, the Court directed the documents to be sent to the Government Examiner of Questioned Documents, Calcutta. On 09.8.1999, report of the examiner was received in relation to the documents whereafter the documents, after marking/exhibiting, the same were handed over to the In-charge, Malkahana. The order reads as under:
"Received a report of Examination of documents in c/w West P.S. Case No. 260/98 vide opinion No. DXA.34/99/1445 Page 18 of 53 dated 26.5.99 along with documents stamped and marked A,A1,B and C,D1 to D3, E1 to E5, G1 to G5, H1 to H5 in 26 sheets from GEQD.
Perused the same. Hand over the documents to the In Charge, Malkhana. Send a copy of opinion to the I/O."
(iii) What happened thereafter, record does not reveal, save and except that on the next date i.e. 19.9.2009 the Court observed that "..........The case record shows that no order after 09.8.1999 was passed in the case record and the report of investigation has also not been submitted. This is a case pending for long time under investigation. The S.P., CID is to look into the matter and to give necessary instruction to the present Investigating Officer for submission of the report of investigation........."
(iv) Thereafter, the CJM, as is evident from the order dated 12.10.2009, directed the matter to be placed before the concerned Sessions Judge, who, on 14.10.2009, inter alia passes the following order:
"Received the case record from the Court of Ld. Chief Judicial Magistrate, West Tripura, Agartala.
Ld. Chief Judicial Magistrate, West Tripura, Agartala vide order dated 12.10.2009 has transmitted the case record to this Court since Section 7 read with Section 13(1)(a) of the Prevention of Corruption Act, 1988 has been added and so far the Prevention of Corruption Act is concerned, the Special Court is the original court of criminal jurisdiction.
On perusal of record it appears that the case is waiting for Final Report. But the SP, CID vide letter dated 15.7.2009 informed the Court of learned Chief Judicial Magistrate, West Tripura, Agartala that the case docket of this case has been destroyed or suppressed by the then I.O. Sri. M.L. Majumder, TPS for which a criminal case has been lodged against Sri. M.L. Majumder vide West Agartala P.S. Case No. 134/2009.Page 19 of 53
However, the S.P., CID has not informed this Court whether further parallel investigation has been initiated so far the present accused is concerned. Unless chargesheet is submitted in this case, this Court cannot take cognizance and proceed with the case.
Heard Ld. Addl. PP, Mr. R.P. Roy in the matter.
The case stands adjourned till 08.12.2009 for report.
Inform S.P., CID accordingly"
[32] Sanction to prosecute was obtained as is evident from the document vide Exbt.F dated 13.10.2000. Exbt.7, Page-315, is the summary report prepared by the accused on 04.6.2001 and the order with respect thereto is at Page -
310. [33] Exhibit.7, Page-252 is the noting portion of the submission of the documents by the instant accused, to be submitted before the appropriate court for trial. It is a matter of record that a departmental inquiry was also got conducted, copy whereof was forwarded to the instant accused vide communication dated 01.10.2008, (Exbt.8) (Page-253) to which response (Exbt.9) was filed by him.
[34] It is a matter of record that the said inquiry was not taken to its logical end and no disciplinary proceeding initiated pursuant thereto.
[35] MO.2, Exbt.2 and Exbt.3 are the court records indicating that the record pertaining to Aparna Das was actually reconstructed by the investigating officer after taking Page 20 of 53 the original/certified copies (Page - 162). Here we may only observe, which fact could not be disputed by the prosecution, that the original record be it the police docket, judicial docket or seized alamat was not missing but were found at different places outside the office of the Department of Crime and beyond the control of the instant accused.
[36] MO.3 is the case docket of Circle Inspector, West. Containing a note of SI of police, West Agartala which reads as under:
"6.8.2001.
The case is disposed and ended in c/s vide West Agartala P.S. c/s No. 75/2001 dt. 30.6.2001 u/s 468 IPC and 7/13(1)(II) PC Act against the a/c Smti. Aparna Das. I personally contact with c/s sec. of SP(CID) office to collect the copy of the c/s but office undesirous to supply the same. Placed the docket for your kind perusal."
[37] This only shows that an attempt was made by the concerned police station to obtain the record pertaining to the FIR, subject matter of investigation by the instant accused. Significantly, it does record the charge sheet number being 75/2001. Relevance thereof being that if the documents had not moved outside the office of the crime department, then how is it that a third party, i.e. the police authority would have learnt about the same.
[38] MO.5 is the dispatch register maintained by the Office of the Superintendent (CID). It runs into 430 pages. The date on which the instant accused had forwarded the Page 21 of 53 papers for onward dispatch is 30.6.2001. Significantly, pages 50, 51, 52, 53, 54, 55 & 56 of the said document deals with all the entries made on the very same date but then there is no entry pertaining to the case pertaining to Aparna Das or CS 75/2001. However, there is a separate slip pinned at page 50 which does record entry of the case pertaining of Aparna Das as under:
"30.06.01, C/S No.75, West Agartala PS Case No.260/98 u/s 468 IPC and 13(1)(a) PC Act."
[39] In whose hand? under whose authority? the same stands written and pinned on the record, is not evident from the document. We do not find document (MO.5) to be worthy of credence for here only we must record that page 351 - 352 have been pasted so as to make the entries on the reverse side of these pages not readable, perhaps to conceal the original contents, for even to a naked eye, it is apparent, that the reverse side is not blank and something is written thereupon with a blue ink. Most significantly, trial court took note of such fact, and marked it as Exhibit-B dated 12.05.2011.
[40] MO.6 is the index of crime, a book maintained by the CID. The document runs into 168 pages. Page-91 which itself is exhibited as Exbt.14 (Page-267A in Paper Book), exhibits three facts, viz., (a) that the investigation was carried out by several officers; (b) the Case Diary (CD) in relation Page 22 of 53 thereto stood deposited by them and particularly, CD No.43 by the instant accused. The entries made therein are not by the accused but by PW.13, Gopal Ch. Dey who also scribed CS 75 dated 30.6.2001 in the case of Aparna Das. Here we notice that certain entries stand smudged by applying a white fluid. Who did that? and under whose authority it was so done? remains unexplained. The authenticity of the record itself is in doubt. Also what was smudged is not clear from the record but then one fact is clear. The instant accused had submitted CD of the investigation so conducted by him. [41] MO.7 is the disposal register of the CID branch which runs into 89 pages. On Page-39 there is entry, indisputably made by Sankar Pada Ghosh assigning CS No.75 to the FIR pertaining to Aparna Das. Sankar Pada Ghosh was the most relevant witness who though was associated during investigation but never examined in Court. Was he the real culprit?
[42] MO.8 is the General Register maintained by the Sadar Police Court which does not reflect any entry pertaining to the charge sheet filed in relation to the case of Aparna Das. However, what puzzles us is as to how the original documents reached the court for as is evident from MO1, Page-162, the seizure memo, original documents in relation to the said case were actually seized from the Malkhana of the concerned court.
Page 23 of 53[43] MO.9 is the register of index of crime maintained by the West Agartala Police Station which runs into 353 pages and at Page-120 there is entry which also records the word C/S implying that the CS actually stood submitted and that there was nothing pending from the side of the accused. [44] MO.4 is the peon book of the department of CID which has 420 pages and at page 8 which is exhibited as Exbt.6, we notice that there is pasting of a loose sheet indicating that on 12.02.2004 a letter was dispatched to the instant accused. The said letter is exhibited as A/C, Pages-306 and 309 of the Paper Book.
[45] As we have observed the document, at least three of them i.e. MO.4, MO.5 and MO.6 have been interpolated rendering such evidence to be unworthy of credence and the genesis of the prosecution case to be extremely doubtful, if not false.
[46] Our attention is also invited to several communications, dated 6th January, 2001 onwards (Exbts.13 series) written to the accused, asking him to submit the CDs of the investigation conducted after submission of CD No.43, as also another communication inquiring as to whether charge sheet was submitted or not. Insofar as the submission of Case diaries after CD No.43 is concerned, as is evident from the record, there is none. In fact, why such communications (Exbts.13 series) were sent is not known.
Page 24 of 53[47] Insofar as, submission of the charge sheet is concerned, indisputably, instant accused did not personally take the file from the Department of CID to the concerned police station, i.e. West Agartala Police Station, and thereafter to the Court. Whether he was required to do or not, the police itself was in confusion, for a query was raised by Sanjay Roy vide communication dated 13.3.2009 (Exbt.D2) to which the Inspector of Police, CID, Tripura, respondent, vide communication dated 16.3.2009(Exbt.D2) categorically stated that "...........No black and white guideline so far available with CID pertaining to responsibility of I.O. and staff of Crime Section for sending Police docket/Judicial docket/Malchallan, etc. after disposal of a regular case by CID officers. .................."
[48] The moot issue, therefore, which arises for consideration is as to whether the evidence, documentary in nature, can be said to be inspiring confidence of the court or not.
[49] As we have already observed, the author of the entry made in the dispatch register [MO.5] maintained by the department of CID, has not been examined. In our considered view, he was one of the most material witnesses. Interpolation of the documents, relevant to the entries, be of whatever nature and form, in relation to the instant accused, Page 25 of 53 has not been explained by the prosecution. As such, not much credence can be lent to such evidence.
[50] But then this does not mean that documents needs to be discarded in its totality for discrepancies, material in nature can be explained by ocular evidence. But has it been done, let us examine.
[51] We notice that, in all, prosecution has examined 32 witnesses, which evidence, in our considered view, can be clubbed into the following four categories:
(a) Witnesses who have testified about the registration and investigation carried out in the case pertaining to Aparna Das [PW.4, Sri Subhash Ch. Das; PW.5, Sri Kshitish Debnath; PW.14, Sri Haradhan Chakraborty; PW.28, Sri Subrata Chakraborty; PW.29, Sri Nityananda Debnath and PW.30, Sri Nripendra Kr. Debnath];
(b) The officers of the concerned CID/police station (West Agartala) who, in fact, as we notice, possessed the records pertaining to the case of Aparna Das [PW.8, Sri Soumitra Dhar; PW.10, Sri Bhaskar Chakraborty; PW.13, Sri Gopal Ch. Dey;
PW.16, Sri Rabindra Ch. Debroy; PW.19, Sri Amitava Kar; PW.20, Sri Biswanath Debbarma; PW.23, Sri Sishir Kr. Roy; PW.29, Sri Nityananda Debnath and PW.32, Sri Sanjay Roy];
(c) Witnesses who have deposed with regard to the merits of the case of Aparna Das [PW.3, Smt. Mira Barua; PW.25, Sri Nishi Kanta Debbarma;
PW.26, Sri Jayanta Debbarma; PW.27, Sri Page 26 of 53 Bishnupada Dtta and PW.30, Sri Nripendra Kr. Debnath]; and
(d) Witnesses who carried out the investigation/ inquiry of the case pertaining to the instant accused, [PW.1, Sri Radha Gobinda Banik; PW.2, Sri Amal Chakraborty; PW.6, Sri Narendra Ch. Ghosh; PW.7, Smt. Sanhita Sarkar; PW.9, Sri Asish Rn. Banik; PW.11, Sri Amar Ch. Ghosh;
PW.12, Sri Rakhal Ch. Roy; PW.14, Sri Haradhan Chakraborty; PW.15, Sri Sanjit Acharjee; PW.17, Sri Pradip Roy; PW.18, Smt. Dipu Rani Saha;
PW.21, Sri Pritish Bhattacharjee; PW.23, Sri Sishir Kr. Roy; PW.24, Sri Minarendra Nath Mukherjee; PW.31, Sri Ashesh Chakraborty and PW.32, Sri Sanjoy Roy].
[52] We have carefully gone through the testimonies of all these witnesses and none of them have said, which also is not the case of the prosecution, that the instant accused took any illegal gratification from Aparna Das or for that matter from anyone else, in the course of discharge of his professional duties. None of them have also deposed that the instant accused conspired with anyone else in the commission of the crime. Nor has anyone deposed that the instant accused acted on the behest of someone or with a motive of gaining professional advancement. Though, impliedly they want the Court to believe that it was to cause benefit to Aparna Das.
[53] Much emphasis is laid on the testimony of PWs.12, 14 and 22 to highlight the alleged proximity in relationship, Page 27 of 53 which presumably, Aparna Das was having with the instant accused. Now let us examine as to what really these witnesses have actually stated on this aspect. [54] PW.12, Sri Rakhal Chandra Roy states that sometimes Aparna Das used to visit the office of the instant accused. But then we do not find such version to be inspiring in confidence for the simple reason that in his cross- examination, he admits not to be sitting on the same floor on which office of the instant accused was housed. Then how is it that he gets to know of such fact is not so disclosed by him. [55] Testimony of PW.14, Shri Haradhan Chakraborty is also to similar effect. He states that accused of case No. 260/1998 (that of Aparna Das) used to visit the chamber of the instant accused in the evening hours. But then, he is not privy to any conversation which took place between the two. That apart, his testimony on this issue also, we do not find to be inspiring any confidence, for he also was not sitting on the same floor where the office of the instant accused was housed. In fact, he was sitting in a totally separate building. [56] PW.22, Shri Dhirendra Chandra Das in his examination in chief states that Aparna Das used to visit the chamber of the instant accused. None was allowed to enter the chamber and the "red light signal would blink in front of the chamber" of the instant accused. Also she would remain in the chamber for a "considerable time". Testimony of this Page 28 of 53 witness, in our considered view, cannot be said to be believable and inspiring in confidence for two reasons: (i) the chamber of the instant accused was not visible from the place where this witness used to sit; and (ii) PW.28, Subrata Chakraborty does state that a person visiting the office of the CID is to report first at the reception room, thus implying that none could straightway walk into the office of any officer. Significantly, it is not the prosecution case that Aparna Das was allowed to enter the room surreptitiously or directly without making any entry on the asking of the instant accused. Also, no record maintained at the reception office was seized or produced in the court as is so admitted by the Investigating Officer, PW32, Shri Sanjoy Roy at page 103 of the Paper Book. Also it has not come on record, nor is it the case of the prosecution, that Aparna Das was otherwise known to the instant accused professionally or socially. [57] Significantly it is nobody‟s case that the aforesaid witnesses had anything to do with the case of Aparna Das or were working with or under control of the instant accused. [58] At this juncture, we may only observe that by the time the file was entrusted to the instant accused, i.e. on 15.6.1999 (Exbt.14) investigation stood completed by PW.4, Shri Subhash Ch. Das and before us, it is the admitted case of the prosecution that after submission of CD 43, no further investigation was carried out.
Page 29 of 53[59] We may also observe that in fact it is the instant accused who pursued the matter with the authorities, ensuring issuance of order for sanction for prosecution, as also submission and obtaining orders on the summary report which acts are contrary to the perception of the accused attempting to help Aparna Das. Not only that, it has come on record, for we notice, that no document was ever recovered from the custody of the instant accused or from a place, pursuant to his disclosure statement. What deliberation took place inside the room where apparently the red signal blinked [red light illuminated], none has come forward to even suggest the same. How many times did Aparna Das visit? The day? the time? and the period? are all left to be imagined by the prosecution. Why these witnesses did not report the matter to their superior authorities is again left to be imagined, rendering their testimonies to be shaky and unbelievable. So on this count, we are not in agreement with the prosecution that the instant accused had any motive, the presumable act of shielding/protecting the lady is non- existent.
[60] The next question which arises for consideration is as to whether the instant accused really had any intent and as to whether prosecution has been able to establish his culpability in the crime for which he stands charged for. Page 30 of 53 [61] Firstly, we shall deal with Section 201 IPC which speaks of causing disappearance of evidence or giving false information to screen an offender. The instant case is not that of disappearance of evidence for the reason that the entire original record, i.e. "the police docket; judicial docket and the seized alamat" were recovered by the police during the course of the investigation from the Malkahana/depository of records in the police court complex. Nothing was recovered from the accused and it is nobody‟s case that he hid it in a manner so as to not make it known to anyone. There is no destruction or disappearance of any evidence. In any event accused had no control over such documentary evidence which was found in the court complex.
[62] Can it be said that entry in MO.6 and MO.7 which records "CS" "75" was filled by the accused, giving information in relation to the offence, which he knew or believed to be false. It is certainly not in his hand. [63] On this issue, our specific attention is invited to PW13, Shri Gopal Ch. Dey who states that it is he who wrote the charge sheet number on the crime index (MO.6) as also the disposal register. We may also observe that prosecution case primarily rests on the testimony of this witness for except ocular version of two witnesses, there is nothing on record to establish that it was the instant accused who either Page 31 of 53 himself or through someone else, got filled up such entry assigning the CS number.
[64] The question which arises for consideration is, is he really telling truth or not. Crucially, in his deposition he does not state that he was posted directly under the instant accused. Though he does state that at the relevant point in time he was posted as ASI in the office of CID, but then he does not disclose names of the officers posted in his department. Whether he was posted at all or not itself is in doubt. We have carefully examined his testimony. The trial court has presumed the witness to have spoken the truth, with the assigned reason that the said witness "being subordinate was left with no option but to accept the offer of taking poison knowing the same too deadly". The reasoning, to say the least, is preposterous. Even the witness does not state that he was under any threat, pressure, obligation or coercion from the instant accused. Hence why would he do an illegal act? If he were to be believed, being an accomplice, he should have been in the dock.
[65] Be that as it may, can it be said that his testimony on this issue is inspiring any confidence. In our considered view, not so. And this we say so also for the reason that MO.6 itself stands interpolated. There are certain entries which have been erased by applying a whitener; what do these entries pertain to? who was the author thereof? Page 32 of 53 under whose authority the same were erased? remains a shrouded secret and mystery. This witness admits such lines to have been erased as correct. Undisputedly, he was the sole custodian of the register. Then why is it that he did not report the matter of interpolation or creation of incorrect record to anyone of the officers, more so, in the year 2003 itself, when the instant accused was posted outside the office/department i.e. CID Branch. It is only in the year 2010, for the first time, did he disclose such fact, implicating the accused during the course of investigation of the instant case. His continued long silence is unexplainable, otherwise rendering his version to be unbelievable and uninspiring in confidence. [66] Significantly, witness admits that he is duty bound only to comply with lawful orders passed by his superior officers. Then why did he commit an illegal act, remains unexplained by him.
[67] Well, that is not the end all. We have another document, i.e. the dispatch register, MO.5 wherein there is a reference of the CS number. This register was not filled up by him and the person who filled up the same or made entry on the note (Page No.50 of MO.5) which was pinned on the register was not examined in the court. Accused did not ask the author of this document who make such an entry. Hence, also for this reason, we do not find his testimony to be inspiring in confidence. The witness cannot be said to be Page 33 of 53 worthy of credence and as such his version not believable in law.
[68] It is for this reason, we find the second ingredient constituting an offence under Section 201 IPC not to have been established by the prosecution.
[69] From the bare reading of Section 13 of the PC Act, it is evident that prosecution case does not fall within the ambit of sub-section 1(a), sub-section 1(b), sub-section 1(d) and sub-section 1(e) of the said Section. The learned public prosecutor points out that provisions of sub-section 1(c) are clearly applicable.
[70] To constitute an offence under the said sub- section, prosecution has to establish, beyond reasonable doubt, the dishonest or fraudulent acts of misappropriation of the property entrusted upon the accused or that the accused has otherwise converted the same for his own use. [71] In the instant case, where is the evidence of dishonest or fraudulent misappropriation of the property. Who has even deposed with regard to the dishonest or fraudulent intent of the instant accused? Nor can it be inferred from the record. Where is the question of misappropriation of the property for the property over which the accused was having dominion, i.e. the file pertaining to Aparna Das was never ever recovered from his possession or from someone under Page 34 of 53 his control or on the basis of his disclosure statement. In fact, he had lost all dominion or control there upon, the moment it got deposited with the concerned court/authority. Significantly, there is nothing on record to establish that after 30.6.2001, the instant accused played any role whatsoever in handing of the said file.
[72] None of the witnesses have deposed that the instant accused has otherwise converted the said property for his own use.
[73] Yes, instant accused was duty bound to have ensured that the file, pursuant to approval of the summary report should have reached the concerned police station, for onward remittance to the concerned court. It has come on record that this was not so done by the accused. But then is it reflective of his malicious intent or fraudulent act or it is only an act resulting into dereliction of his duty. [74] At this juncture, at the cost of repetition, we may take note of the fact that the department had carried out certain inquiries in which explanation of the accused was sought for, as is evident from the inquiry report dated 11.9.2008, Exbt.8 (part of MO.1) and 25th April, 2009, Exbt.9 (Part of MO.1) respectively. There is nothing on record that such proceedings were pursued any further. Though FIR was registered on 29.6.2009, it was the duty of the prosecution to have placed on record outcome of such proceedings for if the Page 35 of 53 department had accepted the response of the accused, so filed in the year 2008, then obviously it cannot be said that there was any malicious or fraudulent intent on his part to have withheld the file, as is so alleged by the prosecution. [75] On this issue, we may also take note of one fact, which, we clarify, has had no bearing on the outcome of the instant case. During the pendency of the instant appeal, on 15.6.2013, i.e. immediately prior to the delivery of the impugned judgment, based on the evidence led by the prosecution in the instant case, notice dated 15.6.2013 was issued to the instant accused, whereafter he was suspended vide order dated 17.7.2013 and vide subsequent order dated 28.6.2014, summarily dismissed from service. We have noted such fact only to amplify the factum of the authority having prima facie accepted the version of the accused vide his communications dated 01.10.2008 (Exbt.8) and 23.10.2008 (Exbt.9).
[76] Next we examine as to whether ingredients constituting an offence under Section 409 IPC stands established or not. Here, we may observe that the ingredients constituting an offence under Section 405 and 409 IPC are almost similar to that of Section 13 of the PC Act. [77] The Constitution Bench (5 Judges) of the Apex Court in Om Prakash Gupta v. State of U. P., AIR 1957 Page 36 of 53 Supreme Court 458 has contrasted the provisions of Section 405 with that of the Prevention of Corruption Act, 1988. [78] In our considered view, to constitute an offence under Section 405 IPC it is imperative upon the prosecution to prove and establish beyond reasonable doubt, conjointly, (i) the entrustment; and (ii) the accused, actuated by dishonest intent, either misappropriated or converted the property to his own use, to the detriment of the person who entrusted it to him.
[79] What are the ingredients which the prosecution is required to establish beyond reasonable doubt, in our considered view, best stands culled out by the Apex Court in Chelloor Mankkal Narayan Ittiravi Namhudiri v. State of Travancore, Cochin, AIR 1953 Supreme Court 478 (Constitution Bench-5 Judges) has held that "to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do." [80] The above proposition was further reiterated by Hon‟ble Supreme Court in a catena of judgments viz R Page 37 of 53 Venkatkrishnan v. Central Bureau of Investigation, (2009) 11 SCC 737 (2 Judge Bench); Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr., (2008) 2 SCC 561 (2 Judge Bench) and Raghunath Anant Govilkar v. State of Maharashtra and Ors, 2008 (2) SCALE 303 (2 Judge Bench). [81] The term "entrustment" is not necessarily a term of law. It may have different implications in different contexts. In its most general signification all it imports is the handing over possession for some purpose which may not imply the conferring of any proprietary right at all. [See: Ram Narayan Popli v. CBI, (2003) 3 SCC 641 (3 Judge Bench)]. [82] We may note that the Constitution Bench (5 Judges) in State of Uttar Pradesh and ors. v. Babu Ram Upadhya, AIR 1961 Supreme Court 751, where the police officer had searched and recovered currency from a person suspected to have committed an offence, held the police officer to have dominion over the property. [83] How the prosecution is required to establish its case of dishonest misappropriation stands best explained by the Apex Court in Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, AIR 1960 Supreme Court 889 (3 Judge Bench), in the following terms :
"(4) .............. Direct evidence to establish misappropriation of the cloth over which the appellants had dominion is undoubtedly lacking, Page 38 of 53 but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion.
The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made."
[84] The Constitution Bench (5 Judges) in Chelloor Mankkal Narayan Ittiravi Namhudiri (supra) has held that "to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or Page 39 of 53 legal contract, by the accused himself or by someone else which he willingly suffered to do."
[85] In the instant case, since the instant accused was in charge of the investigation, factum of entrustment cannot be disputed. Obviously, he had dominion over the said property but then which one of the witnesses have spoken about his dishonest intent in converting the property for his own use and/or to detriment of the person who entrusted it, which in the instant case is the State, in fact there are none. Also prosecution has not established as to whether with such dishonest intent, the instant accused misappropriated the said property.
[86] We notice that the trial court has reproduced testimony of each one of the witness examined by the prosecution, which we have categorized under different heads. We proceed to examine their testimonies relevant for establishing the prosecution case against the instant accused. We need not deal with the testimonies of the witnesses categorized as category (1) and (2), save and except refer that they have deposed about the various stages of the progress made in the investigation of the case against Aparna Das. Reiteratingly we point out that such FIR was registered on 5th April, 1998 and the instant accused was entrusted with the case file on 15th June, 1999, before which date, Page 40 of 53 investigation stood completed, as is evident from document Exbt.-14, proven by PW.14, Shri Haradhan Chakraborty. [87] So far as the witnesses falling in category (3) are concerned they also, primarily deal with the case of Aparna Das.
[88] Now we proceed to examine and discuss testimonies of witnesses falling in category (4), in a detailed manner. PW.13 & PW.29 are the most relevant. [89] The investigation in the instant case was carried out by PW.32, Shri Sanjoy Roy. He states that despite reminders issued to the instant accused asking him to disclose the status of the case pertaining to Aparna Das, no response was received and as such on 29.6.2009 formal FIR (Exbt.-24) was lodged at police station West Agartala. Pursuant thereto, he seized the official case docket of the West Agartala Police Station running into 250 pages which is exhibited as MO.1. He recorded statements of various witnesses and also took into possession original documents from various offices which are marked as Exbt. MO.4; Exbt.3/1; Exbt.MO.6; Exbt.MO.7; Exbt.MO.5; and Exbt.MO.9. Also he seized certified copy of the judicial docket of West Agartala Police Station marked as Exbt.2, comprising part of MO.2. Vaguely and certainly not expressly, he states that "prima facie case under Section 409/201 and 13(2) of the Prevention of Corruption Act was made out against the accused" and as such, after obtaining Page 41 of 53 sanction he presented the challan in the court. His testimony is conspicuously silent about the fulfillment of any one of the ingredients constituting any one of the offences of which, prima facie he found, the instant accused to have committed the crime.
[90] Be that as it may, when we examine the cross- examination part of his testimony, we find him to have admitted non-availability of any guidelines laying down the procedure, in black and white, required to be followed by an officer for filing the charge sheet and disposal of the case in the department (CID). All that he states is that the IO, which impliedly in the instant case is the instant accused, is duty bound to "arrange dispatch of police docket, judicial docket, malkhana to the concerned court at his personal responsibility and care". That being so, at best it can be said and more particularly when the original record was seized from the Malkhana/police post, that the instant accused himself did supervise arrangements for onward dispatch of such record to the appropriate authority. But then is it really reflection of his criminal intent of mind - the element of mens rea of committing a criminal Act? In our considered view, he certainly does not state so.
[91] Significantly, this witness had himself conducted the second inquiry concluded vide report dated 25.04.2009 Exbt.H (part of MO.1) not arriving at any conclusion of Page 42 of 53 dereliction of duty of the instant accused. Though he attributed "negligence" but then would such an act mean dishonest and fraudulent intent? certainly not. [92] The Apex Court, while dealing with the case where the factum of entrustment was undisputed, clearly held that an offence under Section 405/409 cannot be said to have been established unless and until the prosecution has failed to show that the appellant dishonestly misappropriated or converted the same for its own use. We may observe that emphasis is on the mens rea. [See : Sardar Singh v. State of Haryana, (1977) 1 SCC 463 (2 Judge Bench); Radha Pisharassair Amma v. State of Kerala, (2007) 13 SCC 410 (2 Judge Bench)].
[93] Dereliction of duty necessarily in all circumstances cannot be construed to be a criminal intent. [See : L Chandraiah v. State of A. P. and Anr.,(2003) 12 SCC 670 (2 Judge Bench)].
[94] In the continuation of chain of events, at this point in time, we may take note of testimony of PW8, Shri Saumitra Dhar who does state that he had sent reminders to the instant accused in October, 2008 and the response so received was forwarded to the authorities. [95] On the issue of reminders, though repetitively, we may take note of entry made in MO.6, Exbt.14 indicating that Page 43 of 53 last such investigation took place vide CD 43 which already stood placed on the record and as such nothing was required to be submitted by the instant accused. Be that as it may, in the cross-examination part of his testimony, we notice that he was the batch mate of the instant accused and though the latter was junior, yet stood promoted much earlier than the former, which action, unsuccessful, as a disgruntled employee, stood assailed by him. Noticeably, it stands suggested to him that the instant prosecution stands initiated only as a fall out of such professional rivalry, if not animosity. Any which way, even he does not depose the manner in which the instant accused committed the charged offence. [96] PW.1, Shri Radha Gobinda Banik is only a witness to the seizure of record of recovery. Emphatically, he does state that the instant accused did not submit the case docket along with the other records but then this statement of his stands belied and contradicted from the record itself, for according to PW.32, Shri Sanjoy Roy there was no such procedure and the original of such record stood recovered by the police during the investigation.
[97] PW.2, Shri Amal chakraborty is a witness of seizure of documents.
[98] PW.4, Shri Subhash Ch. Das reconstructed the record of case pertaining to Aparna Das, whereafter he submitted the charge sheet in relation to the said crime. Page 44 of 53 Significantly, this witness also does not state anything against the accused. However, we do notice him to have deposed falsely. Why so? is not clear to us. He states that he took certified copies of the record. Whereas as per the seizure memo (page 162 of the Paper Book), it was the original which was seized and not photocopies thereof. Significantly, this witness had retired and was called back by the State to carry out the investigation in the case of Aparna Das. For whatever reason remains unexplained. But then such fact cannot and has not weighted with the court.
[99] In the testimony of PW.5, Shri Kshitish Debnath we find one crucial, unrebutted and uncontroverted deposition to the effect that periodically in the conferences termed as crime conference, generally list of cases which are pending for long or otherwise as also disposed of cases are submitted and discussed. Crucially, he does state that periodically, i.e. every month, list of such cases are being sent to the SP (Crime Section). However, if that were so, then why is it that none took any appropriate action in ensuring that a long pending case, investigation in relation to which stood completed in the year 2001 was not expedited or what was the outcome thereof.
[100] Crucially, investigating officer, PW.32 Sanjoy Roy admits not to have seized such monthly crime review statements. Why so? is not clear from the record. In our Page 45 of 53 considered view, such evidence was crucial for clearing all doubts with regard to complicity of the instant accused alone, in the alleged crime, for they would have reflected the status, false or otherwise, of the case pertaining to Aparna Das. [101] PW.6, Narendra Chandra Ghosh is a witness to the seizure of exhibit MO.4, MO.5, MO.6 and MO.7 but in his cross examination, admits that in the document MO.4 there is pasting of paper, unexplainable at the relevant place where the alleged letter is supposed to have been issued and delivered to the instant accused. Hence, correctness and authenticity of the document stands impeached. [102] PW.7, Smti. Sanhita Sarkar is also a witness to the recovery of MO.4, MO.5, MO.6 and MO.7. She does state that in the dispatch register there is no mention of any paper in connection with the case of Aparna Das. But then in her cross-examination, she admits pasting of rear side pages 351 and 352 of the dispatch register, at portion Exbt.B, and that "there might be some writing in the inner pages." Why was the document pasted? under whose authority? by whom? what was written thereupon? remains unexplained, further making the document as also the testimony to be shaky and unbelievable.
[103] PW.9, Ashish Ranjan Banik who was posted as the Police Inspector, Sadar Court on 29th June, 2009 simply states that as per the General Register (MO.8) there is no Page 46 of 53 entry of receipt of record of the case of Aparna Das but then here only we may observe that his predecessor was never examined in court. What happened way back in the year 2001 has not been disclosed.
[104] Testimony of PW.11, Shri Amar Chandra Ghosh is also on the lines of PW9, Shri Ashish Ranjan Banik; so also that of PW.15, Shri Sanjit Acharjee; PW.16, Shri Rabindra Chandra Deb Roy; PW.17, Shri Pradip Roy; PW.18, Smt. Dipu Rani Saha; PW.26,Shri Jayanta Debbarma and PW.27, Shri Bishnupada Dutta.
[105] PW.28, Shri Subrata Chakraborty simply states that in the Khatian of the police station, case was being reflected as pending but in the crime index of the CID office it was shown to have been charge sheeted. But he does not state anything indicating complicity of the instant accused. [106] PW.29, Nityananda Debnath, at the relevant time was working as Officer-In-charge cum Circle Inspector of West Agartala police station. His testimony is of importance. He states that on 30.6.2001, on telephone the instant accused asked him to give the charge sheet number of the case pertaining to Aparna Das, which, after consulting the record, he so did. As per instructions of the instant accused he entered the charge sheet in the crime index maintained by the CID for the accused informed that he was going to submit the charge sheet reflecting the case to have been disposed of. Page 47 of 53 Hence, through his staff he got the entries entered into the crime index. He states that without receiving the actual charge sheet, for the reason that the instant accused was his superior officer, he bona fidely carried out such instructions. [107] This statement, according to the prosecution, fully establishes the prosecution case. The question we pose to ourselves is, really so? for the answer in the negative lies, in the cross-examination part of his testimony. The witness admits that within the organization he was directly not working as a subordinate to the instant accused. We do not find the witness to have recorded such entries in good faith, for the reason that the instant accused was not his superior officer. Then what was the consideration for him to have done so. He was not directly working under or having some relationship with the instant accused. Crucially, the instant accused had no control whatsoever over this witness, for Police Station West Agartala is a separate establishment, distinct from the Department of Crime and it has not come on record that this witness had ever served under the instant accused. He was under no obligation to have even listened to the accused. Also why did he not report the matter to his superior officer? Why did he remain silent for a decade? All remains unexplained rendering his otherwise uninspiring testimony to be further doubtful.
Page 48 of 53[108] This takes us to yet another issue and that being that if another authority, distinct than the department of investigation, was in the know of the fact that only on the oral asking, charge sheet number was assigned, then why no follow-up action was taken either by this witness or by his successor-in-interest, for at least, in the police station (West Agartala) it stood recorded that in relation to the case of Aparna Das a specific charge sheet number stood assigned. Was this witness not an accomplice in the crime? why was he not made an accused? why did he not allow the things to be pursued any further? why is that he did not bring the factum of non-receipt of the papers to the knowledge of his superiors/authorities? All these questions are left by the prosecution to be presumed as per the individual‟s flight of imaginations. For all the aforesaid reasons we do not find the witness to be worthy of credence and his deposition believable.
[109] In fact, testimony of PW.29 stands belied and contradicted by PW.31, Shri Ashesh Chakraborty who was working as a clerk (lower division) in the office of the Chief Judicial Magistrate, West Tripura, Agartala, who has testified the factum of existence of the documents in the custody of the police court Malkhana kept along with the Mal challan. He was the custodian of the judicial records. As such, version of any one of the prosecution witnesses of having assigned a particular charge sheet number without the documents having Page 49 of 53 been sent out of the office of the Department of CID stands falsified.
[110] It is in this backdrop, we find that the findings returned and the reasoning adopted by the trial court and more specifically in Para 15 of the impugned judgment to be absolutely erroneous. They are not based on correct and complete appreciation of evidence, documentary and/or ocular led by the prosecution.
[111] The instant accused, through the process of cross-examining the prosecution witnesses, in our considered view, satisfactorily probablized his defence also rendering the prosecution case to be extremely false.
[112] The trial Judge erred in not appreciating that testimony of PW.8, Shri Saumitra Dhar had to be appreciated with circumspection for after all there was professional rivalry between the two. The trial judge also failed to note that for more than 10 years, the investigator as well as the prosecutor failed to take cognizance of the outcome of the case pertaining to Aparna Das. The trial judge presumed and assumed some relationship, be it of whatsoever nature, between the instant accused and Aparna Das. Similarly, factum of existence of documents on the record was not taken note of rendering his findings of fact to be perverse. Page 50 of 53 [113] In the instant case, prosecution case rests solely on the testimonies of two witnesses, i.e. PW.13, Shri Gopal Ch. Dey and PW.29, Shri Nityananda Debnath. The trial judge failed to correctly appreciate the evidence of these witnesses. [114] Points for determination, three in number, were correctly framed by the trial court, but however, while answering the same, the trial judge completely misdirected in holding that in view of the provisions of the Evidence Act, onus to establish innocence was on the instant accused. It failed to appreciate the settled principle of law i.e. pre- existence of essential ingredients necessitating invocation of the said provision.
[115] In convicting the accused the trial Judge has heavily relied upon the provisions of Section 106 of the Indian Evidence Act, 1872. At this juncture, we notice as to what the Apex Court, way back in 1959 observed in Krihan Kumar v. Union of India, AIR 1959 Supreme Court 1390, (2 Judge Bench) on this issue. The relevant portion is extracted as under:
"(9) It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating Page 51 of 53 the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. it is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence.............."
As already observed, in the instant case, prosecution failed to establish the essential ingredients of mens rea so as to constitute an offence, more so, on account of original documents having been found in the establishment of Court and the documents to have been interpolated with statements of the witnesses which, we find to be wholly uninspiring in confidence.
[116] Reliance by the trial Jude on the decision rendered by the Apex Court in N Bhargavan Pillai (Dead) by Lrs. And Anr. v. State of Kerala, (2004) 13 SCC 217 (2 Judge Bench) is totally misconceived. It was in the attending facts and circumstances, where the accused admitted and agreed to refunding of the amount alleged to have been Page 52 of 53 misappropriated, as also the prosecution to have established, unerringly, the factum of entrustment and misappropriation on the basis of evidence on record, did the Court hold that the prosecution having prima facie established its case, with the onus shifting upon the accused to probablize his defence. [117] It is not the mandate of Section 106 that onus to establish the offence under all circumstances automatically shifts upon the accused with the framing of the charge. It does not relieve the prosecution of discharging its onus of proving the guilt of the accused. The onus firstly rests upon the prosecution. It is only in cases where the facts proved by leading clear, cogent and convincing evidence, giving rise to reasonable inference of the guilt, which unless rebutted by proving some fact, which in its nature can only be within the special knowledge of the accused, that the burden of proving the fact is upon the accused. The essential ingredient so as to constitute an offence is primarily and necessarily upon the prosecution. To infer guilt of the accused from the absence of reasonable explanation(or a false explanation) where the other circumstances are not by themselves enough to call for his explanation, would be to relieve the prosecution of its burden, which is absolutely impermissible in law. In fact, establishing the initial burden is fundamental in criminal jurisprudence. It is only when the prosecution leds such evidence which if believed, may lead to conviction, the burden would shift upon the accused.
Page 53 of 53[118] As such, for all the aforesaid reasons we find merit in the present appeal, which is accordingly allowed.
The judgment and order of conviction and sentence, passed in case No.Special 39 of 2009 titled as State of Tripura v. Manik Lal Majumder arising out of FIR No.134/2009 in relation to the charged offence under Section 409/201 IPC and Section 13(2) of the Prevention of Corruption Act is hereby quashed and set aside. Accused is already out on bail. Bail bonds stand discharged. Pending application(s), if any, also stands disposed of. Send down the LCRs forthwith.
(ARINDAM LODH), J. (SANJAY KAROL), CJ. Siddhartha/Sukhendu