Calcutta High Court (Appellete Side)
Madanlal Agarwala @ Madanlal Agarwal vs The State Of West Bengal & Anr on 3 October, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
In the High Court at Calcutta
Criminal Revisional Jurisdiction
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.R. 1872 of 2012
Madanlal Agarwala @ Madanlal Agarwal
-Versus-
The State of West Bengal & Anr.
For the petitioner: Mr. Tirthankar Ghosh,
Mr. Sayan De,
Mr. Satadru Lahiri.
For the C.B.I.: Mr. Himanshu De,
Mr. Mritunjoy Chatterjee.
Heard on: October 1, 2013 and October 3, 2013.
Judgment on: October 3, 2013.
Joymalya Bagchi, J.:
The judgment and order dated 31st March, 2013 passed by learned Additional Sessions Judge, 2nd Court, Siliguri, Darjeeling affirming the judgment and order of conviction passed by the learned Sub-Divisional Judicial Magistrate, Siliguri, Darjeeling in connection with G.R. Case No.109 of 1996 (T.R. No.148 of 1998) convicting the petitioner for commission of offence punishable under Sections 420/468/471 of the Indian Penal Code and directing him to suffer Rigorous Imprisonment for three years and fine of Rs.5,000/- in default to suffer simple imprisonment for six months for commission of offence punishable under Section 420 of the Indian Penal Code, further to suffer Rigorous Imprisonment for three years and fine of Rs.5,000/- in default to suffer simple imprisonment for six months for commission of offence punishable under Section 468 of the Indian Penal Code and also to suffer Rigorous Imprisonment for three years and fine of Rs.5,000/- in default to suffer simple imprisonment for six months for commission of offence punishable under Section 471 of the Indian Penal Code. All the sentences of imprisonment to run concurrently has been assailed before me.
The prosecution case as alleged against the petitioner is that the petitioner had dishonestly induced Telephone Department, Siliguri Circle to install a new telephone connection under Tatkal Scheme at his business premises by knowing and intentionally using a forged unpaid copy of demand note of Rs.30,000/- containing a purported seal of the Postal Department acknowledging receipt of the said sum and had thereby committed offences punishable under Sections 420/468/471 of the Indian Penal Code.
The First Information Report was registered in the instant case against the petitioner and one B. N. Saha the then Sub-Divisional Officer (Phones), Siliguri and Bimalendu Adhikari, the then Sectional Supervisor of Telephone Department at Siliguri.
In conclusion of investigation, charge-sheet was filed against the petitioner. The other accused persons, namely, B. N. Saha and Bimalendu Adhikari were discharged on the premise that they were liable for mere negligence and were recommended for departmental proceeding.
The prosecution examined six witnesses in the course of trial.
PW-1 was posted as the Accounts Officer of SBP Telecom Department, Siliguri at the relevant time and issued two letters dated 17.02.1993 (Exbts.17 & 18) stating that no initial payment to the tune of Rs.30,000/- was made by the petitioner both necessary enquiry and necessitating disconnection of the Tatkal Telephone Facility bearing Telephone No.SG-25628 for such non-payment. One of the said letters (Exbt. 18) refers to letter dated 11.02.1993 (Exbt. 19) written by the petitioner in that regard.
PW-2 was posted as S.D.O. (Phones) at Siliguri Telephone Department in 1996 and various documents were seized during investigation of this case from the Telephone Department of which he was the witness. He stated that the original documents of the Telephone Department had been destroyed by fire on 16.11.1992.
PW-3, an employee of Telecom Department, Siliguri, stated the procedure by which Tatkal connection was provided to the petitioner. He proved the letter dated 17.02.1993 (Exbt.
9) by which the Telephone connection of the petitioner was disconnected. The telephone of the petitioner was disconnected on the same date for non-payment of fees of Rs.30,000/- at the time of installation pursuant to advice note No.A-7663 dated 17.02.1993.
PW-4 was a Peon of S.D.O. (Phones) Siliguri who proved the receipt copy of application form (Exbt. 12) submitted by petitioner for Tatkal connection as well as the copy of the prosecution case is that demand note dated 28.02.1992 (Exbt.
13) prepared by him. Exbt. 13 was submitted by the petitioner with the purported seal of the Postal Department endorsing receipt of initiate fee of Rs.30,000/- for obtaining Tatkal connection.
PW-5 was Assistant Accounts Officer, Telecom Department, Siliguri was deposed that the telephone connection was installed in the petitioner's business premises on 06.03.1992 and the same was permanently disconnected on 17.02.1993. He also proved carbon copy of the bill raised on the petitioner with regard to the said telephone connection as the original bill had been destroyed in the fire. PW-5 further deposed that the petitioner had deposited a sum of Rs.2,498/- on 24.11.1993 against the aforesaid bill. He also proved the daily collection sheets sent from the Postal Department, Siliguri (Exbt. 16) written by one Subodh Sarkar. PW-5 also proved the letter written by the petitioner to the Telephone Department on 11.02.1993 (Exbt. 19) admitting that the initial fee of Rs.30,000/- had not been paid and seeking time to such payment by way of instalment. He also proved the letter written by A.C. Debnath the then Telecom District Manager, Siliguri (Exbt. 20) stating that intimation was received from Postal Department that no payment was made in terms of the aforesaid demand note (Exbt. 13).
PW-6 is the Investigating Officer of the case. He seized copy of Exbt. 13 containing the false endorsement of Postal Department and Exbt. 19 (letter dated 11.02.1993 written by the petitioner admitting non-payment of initial fee of Rs.30,000/-) from the possession of the petitioner on preparation of seizure list. He further stated that charge-sheet was not filed against the other accused persons against whom recommendation was made for departmental enquiry on the score of negligence.
On an analysis of the evidence on record, the Trial Court by judgment and order dated 31st March, 2013 convicted and sentenced the petitioner, as aforesaid. In appeal, the learned Additional Sessions Judge, 2nd Court, Siliguri, Darjeeling affirmed the judgment and order of conviction and sentence passed by the trial Court. Hence, the present revision.
Mr. Ghosh, learned counsel appearing for the petitioner criticized the prosecution case on the ground that the public servants, namely, B. N. Saha, the then S.D.O. (Phones), Siliguri Telephone and Bimalendu Adhikari, the then Sectional Supervisor, Siliguri Telephone had been improperly discharged in the instant case although there was sufficient materials to proceed against them with regard to the alleged offences. He strenuously argued that the prosecution had failed to prove its case beyond reasonable doubt. He contended that the evidence of PW-5 had failed to prove Exbt. 16 as he was unaware of the handwriting of Subodh Sarkar, the author of the said document. No one came from the Postal Department to prove the document. Hence, Exbt. 16 had not been proved in accordance with law. He submitted that Exbt. 19 was seized under suspicious circumstances from the possession of the petitioner and not from the office of the Telephone Department to whom it was addressed and the same is manufactured document. He also submitted that the fire in the Telephone Department could not have resulted in destruction of Exbt.19 inasmuch as, the same was written on 11.2.1993. He submitted that in view of the fact that Exbt.16 and Exbt. 19 were the documents of suspicious origin, it cannot be said that the prosecution case have been proved beyond reasonable doubt. With regard to the allegation of forgery, he submitted that the Investigating Agency did not seize the seal appearing on the demand note (Exbt. 13). He accordingly prayed that the impugned order of conviction and sentence be set aside.
Mr. De, learned senior counsel appearing for the Central Bureau of Investigation submitted that there was ample evidence on record to prove the prosecution case beyond reasonable doubt. He submitted that Exbt.16 was received by the Postal Department in ordinary course of official business and there is a presumption with regard to such official records. He further submitted that in Exbt. 19 the petitioner had himself admitted that the initial fee had not been paid and the mere fact that the same was seized from the possession of the petitioner cannot be a ground to discard the same. He further submitted that in this backdrop, the purported seal of the Postal Department on Exbt. 13 was ex facie false and constituted a forged and fabricated document which was knowingly used as genuine by the petitioner to obtain the telephone connection. He accordingly prayed for dismissal of the case.
I have considered the submissions of the parties in the light of the evidence on record. There is no dispute over the issue that the telephone connection had been installed in the business premises of the petitioner on 6.3.1992 in respect of the demand note being No.SG-1527/I dated 28.2.1992 (Exbt.
13).
I find that neither in the course of cross-examination of PWs nor during his examination under Section 313 of the Code of Criminal Procedure had the petitioner taken a defence that the sum of Rs.30,000/- had, in fact, been deposited by him in the Postal Department. The petitioner also made a payment of Rs.2,498/- on 24.11.1993 against bill raised in respect of such connection. On the other hand, it appears from Exbt. 19 that the petitioner on 11.2.1993 admitted to such non-payment and prayed that he was ready and willing to pay by easy instalments and that his telephone line be not disconnected. This letter (Exbt. 19) is reflected to in the letter dated 17.02.1993 (Exbt. 18) issued by PW-1 recommending disconnection. Hence, I do not find any reason to discard Exbt. 19 merely because it was seized from the possession of the petitioner and not the office of Telephone Department. Such seizure has been duly proved in accordance with law and it is most probable that the petitioner kept a copy of Exbt. 19 in his possession for future negotiations with Telecom Authorities. A desperate and unfounded plea to throw the blame of non- payment on another person had been taken but the same is of no consequence. Such defence, on the other hand, fortifies the prosecution case that the said payment had not been made.
It has also been established that the said telephone connection was disconnected on 17.02.1993 on the ground that initial fee of Rs.30,000/- had not been paid. Such disconnection has not been challenged by the petitioner at any material point of time.
In this regard the prosecution has also relied on Exbt. 16, - four copies of daily collection sheets of the relevant date despatched from the Postal Department to the Office of the Telephone Department in ordinary course of official business.
It is true that the evidence of PW-5 with regard to this document is inconsistent, but bearing in mind the nature of the document and the fact that the same was despatched from one Department to another of the Government in the ordinary course of official business. I am inclined to rely on the same on the strength of presumption as to regularity of performance of official acts under Section 14(e) of the Evidence Act.
That apart, Exbt. 20 also records intimation received from Postal Department as to non-payment against the Demand Note dated 28.02.1992 (Exbt. 13).
In view of the aforesaid facts, I am of the opinion that the prosecution case that the petitioner had obtained the telephone connection under Tatkal Scheme without making the initial deposit of Rs.30,000/- had been proved beyond reasonable doubt.
Once the prosecution had established that no initial payment had been made to the Postal Department at the time of installation of the telephone connection, there is no escape from the conclusion that the purported seal of the Postal Department endorsing receipt on the Demand Note (Exbt. 13) is a forged one. In this factual backdrop, failure to seize the seal from Postal Department during investigation does not cause any dent to the prosecution case.
Accordingly, I hold that the concurrent findings of the learned Court below are just and reasonable and do not suffer from any perversity or illegality so as to necessitate interference in revisional jurisdiction.
Before parting, I am constrained to observe that the discharge of the officials of the Telephone Department, namely, B. N. Saha and Bimalendu Adhikari from the instant case does not appear to be justified on the materials on record. Bearing in mind that the incident had occurred two decades ago and as I am informed by the counsel for C.B.I. that they had been proceeded with departmentally, I choose to leave the matter at that and not reopen a closed chapter. However, negative equality is unknown to law and remissness in this regard cannot enure to the benefit of the petitioner against whom the case has been proved beyond reasonable doubt.
On the issue of sentence, I find that even before the registration of the case, the petitioner had offered to repay the money in instalments as evident from his letter being Exbt. 19. In view of conduct of the petitioner and bearing in mind that the matter is pending for more than two decades. I am of the opinion that in the interest of justice substantive sentence of imprisonment imposed upon the petitioner may be reduced to some extent. Accordingly, I reduce the substantive sentence of imprisonment imposed upon the petitioner from Rigorous Imprisonment of three years on each count to Rigorous Imprisonment of two years on each count. The other portions of the sentence imposed by the trial Court shall remain the same.
With the aforesaid modification on the count of sentence, the revisional application is dismissed.
The petitioner is directed to surrender before the Trial Court within eight weeks from date and serve out the sentence. In the event the petitioner fails to do so, the Trial Court shall forthwith to cancel his bail bonds and proceed against him in accordance with law.
Lower Court Records be sent down at once.
Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocates of the parties, if applied for, as early as possible.
(Joymalya Bagchi, J.)