Calcutta High Court (Appellete Side)
Pankaj Kumar Mallick @ Pankaj Mallick vs State Of West Bengal on 16 June, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.A. 160 of 1987
Pankaj Kumar Mallick @ Pankaj Mallick
-Vs-
State of West Bengal
Ms. Meenal Sinha ... appears as Amicus Curiae
For the Appellant : Mr. Tushar Kanti Mukherjee
For the State : Mr. Anand Kesari
Heard on : 16.06.2016
Judgement on: 16.06.2016
Joymalya Bagchi, J. :-
Judgement and order dated 21st February, 1987 passed by the learned Judge, 2nd
Special Court, Nadia in Special Court Case No. 3 of 1986 convicting the appellant for
commission of offence punishable under Section 409 of the Indian Penal Code and
sentencing him to suffer rigorous imprisonment for one year only and to pay a fine of
Rs.2,000/-, in default, to suffer rigorous imprisonment for six months only has been
assailed.
The prosecution case as alleged against the appellant is to the effect that the
appellant being a Clerk attached to Krishnagar Court Post Office between 17-02-82 to 06-
05-82 had on 31st March, 1982, 2nd April, 1982, 19th April, 1982 and 3rd May, 1982
received Rs.800/-, Rs.400/-, Rs.950/- and Rs.400/- respectively as deposits in S.B. A/c.
Nos. 617344, 617341 and 617251 respectively and had misappropriated the said amounts
of money. It was further alleged that although the appellant entered the deposits in the
respective pass books and granted receipt to the respective depositors by giving them
counterfoil of the respective pay-in-slips after putting his signature and seal of the post
office thereon, he did not credit the said amounts in the Government account and did not
make relevant entries in the Log book and S.B. Ledger book of the post office. On
complaint of depositors, Superintendent of Post Offices, Nadia North Division made
investigation in the matter and detected the aforesaid defalcation and accordingly, lodged
written complaint at Kotwali Police Station resulting in Kotwali P.S. Case No. 59 dated
22nd May, 1982 under Section 409 IPC. Upon conclusion of investigation, charge-sheet
was filed in the instant case against the appellant under Section 409 of the Indian Penal
Code. Charge was framed under the aforesaid section. The appellant pleaded not guilty
and claimed to be tried. It was the specific defence of the appellant that he was absent on
the relevant dates and had been falsely implicated in the instant case by the then Sub-
Postmaster of the said post office (PW4). In conclusion of trial, the trial Judge by the
impugned judgement and order dated 21st February, 1987 convicted and sentenced the
appellant, as aforesaid.
Mr. Tushar Kanti Mukherjee, learned advocate appearing for the appellant
submitted that the evidence on record has not established the prosecution case beyond
reasonable doubt. He submitted that the version of PW2 and PW4 are unreliable as
disciplinary proceedings are pending against the said witnesses. He also submitted that
the learned trial Judge illegally rejected the defence plea that the appellant was on leave
on the respective days. He accordingly, prayed for acquittal.
Ms. Meenal Sinha, learned Amicus Curiae, supported the submissions of the
learned advocate for the appellant and submitted that no expert opinion as to the
handwriting of the appellant was adduced in the case to probabilise that he has received
the alleged defalcated sums of money.
On the other hand, Mr. Anand Kesari, learned advocate appearing for the State,
submitted that apart from raising the alibi, no cogent material was adduced to probabilise
such defence. He also submitted that consistent evidence has come on record that the
appellant as the counter and ledger clerk had received the said sums of money and
affixed his signature and seal on the counterfoils of the depositors and thereafter,
misappropriated the said sums of money and intentionally did not make necessary entries
in the Log book and S.B. Ledger book of the post office to evade detection. It is further
argued that the signature and the handwriting of the appellant including those in the
attendance register were duly proved in the instant case. He prayed for dismissal of the
appeal.
PW1 was a mail peon who was posted at Krishnagar Court Post Office. He
deposed that he knew the accused who was working as a Savings Bank Clerk in the post
office.
PW2 was posted in the said post office and was working at the M.O. counter and
registration counter. She identified the appellant and stated that she was posted at the
S.B. counter of the said post office. In cross-examination, she admitted that she was
suspended. She stated that if a clerk is absent, the Sub-Postmaster arranges for a
substitute. Kumud Ranjan Biswas was the Sub-Postmaster at the post office at the
relevant point of time.
PW3 is a police officer who was attached to Kotwali Police Station. He received the
written complaint and drew up the formal F.I.R. (Exhibit-12).
PW4, Kumud Ranjan Biswas was the Sub-Postmaster in the said post office. He is
the most vital witness of the prosecution. He stated that the appellant was working as a
Clerk in the S.B. counter and in the Ledger of the said post office. He deposed that while
depositing money, depositors entered the quantum of the money in a pay-in-slip and
deposited the same with the pay-in-slip and passbook at the counter. The counter clerk
entered the deposit in the S.B. Pass Book with his initial and postal seal. The clerk also
put his signature and date and stamp on the pay-in-slip on both parts. One part of the foil
was retained and counterfoil was handed over along with the passbook to the depositor.
The clerk thereafter, was required to enter the deposit in the Logbook and ledger and put
initials against each entry. At the end of the day, the Logbook and ledger are placed
before the Sub-Postmaster who after comparing the two books puts his signature on the
said books. He identified the passbooks in respect of S.B. A/c. Nos. 617341, 617344 and
617351 respectively of Krishnagar Court Post Office. He identified the signature of the
appellant and the seal of the post office (Exhibits-1, 2 ,3 & 4). He identified the signature
of the appellant on the counterfoils and pay-in-slips bearing the seal of Krishnagar Court
Post Office. He also identified the signature of the appellant in the attendance register of
the post office on 31.03.82, 02.04.82, 19.04.82 and 03.05.82 (Exhibit-5, 5/1, 5/2 & 5/3
respectively). He also identified his initials in the attendance register (Exhibit-6, 6/1, 6/2,
6/3 respectively). He identified the entries in the passbooks to be in the handwriting of the
appellant with his initials and seal (Exhibit-7, 8 & 9). He identified the entries in the
Logbook on 31.03.82, 02.04.82, 19.04.82 and 03.05.82 to be in the hand of the appellant
and initialled by him (Exhibit-10, 10/1, 10/2 & 10/3 collectively). He brought the Savings
Bank Ledger of Krishnagar Court Post Office which was maintained in ordinary course of
business. He deposed that S.B. Ledger in respect of S.B. A/c. No. 617344 did not show
deposit of Rs.800/- on 31st March, 1982, S.B. Ledger in respect of S.B. A/c. No. 617341
did not show deposit of Rs.400/- on 2nd April, 1982, S.B. Ledger in respect of S.B. A/c. No.
617341 did not show deposit of Rs.400/- on 3rd May, 1982 and S.B. Ledger in respect of
S.B. A/c. No. 617351 did not show deposit of Rs.950/- on 19th April, 1982 (Exhibit-13, 13/1
& 13/2). He deposed that deposits are also not entered in the Logbook. Due to the
absence of such entry in the Logbook and ledger respectively it was not possible for the
Sub-Postmaster to identify the defalcation. In cross-examination, he stated that police
seized the ledger book. He stated that Cashbook is maintained by Treasurer and not S.B.
clerk. Pankaj Mallick was the Treasurer at the relevant point of time. S.B. transaction list is
maintained by S.B. clerk. It is sent daily to the Head Post Office. He denied the suggestion
that the appellant was on leave on these three days.
PW5 was the Superintendent of Post Office, Nadia North Division at Krishnagar at
that material point of time. He received written complaint from the depositors of various
S.B. accounts. He investigated into the matter and found that the complaints were true. He
lodged written complaint which was typed as per his dictation and signed by him (Exhibit-
11/1). In cross-examination, he stated that he was forced to retire at 49 years of age. He
deposed that he did not submit a report after enquiry.
PW6 is one of the depositors. He deposed that he has a S.B. A/c. bearing No.
617351 with the post office. On 19th April, 1982 he deposited Rs.950/- with the said post
office by making over the money to the S.B. clerk along with pay-in-slip. He identified the
appellant as the S.B. clerk. He identified the writing on the pay-in-slip to be in his hand
(Exhibit-4/1). He also identified the passbook. After making the deposit, counterfoil of the
pay-in-slip and the passbook were returned to him after necessary entries. Later on, upon
receipt of the letter from the post office he went to Thana and deposited the pay-in-slip
and passbook. He was given a receipt. In cross-examination, he stated that Kumud Babu
(sitting in court room) was the Postmaster of the post office. He did not tell the name of the
S.B. Clerk as the appellant since he did not know his name.
PW7 is the then Officer-in-charge of Kotwali Police Station who submitted the
charge-sheet.
PW8 is another depositor. He maintained S.B. A/c. with Krishnagar Court Post
Office. On 31st March, 1982 he deposited Rs.800/- in his account. He wrote the pay-in-slip
by his own hand (Exhibit-3/1). He handed over the pay-in-slip, passbook and money to the
counter clerk who granted receipt and returned the passbook. He proved the receipt
(Exhibit-3/1). Later, upon receipt of letter from the Head Post Office he deposited the
passbook to the Head Post Office (Exhibit-3/1). In cross-examination, he stated that he
had not seen the counter clerk since that day. He had come with Kumud Babu who told
him that he should say that the man in the dock was the counter clerk.
These are the evidence adduced by the prosecution against the appellant. An
analysis of the aforesaid evidence would show that all the official witnesses namely, PW1,
2, 4 & 5 have stated that the appellant was working as the clerk at the S.B. counter and
Ledger clerk of the post office at the relevant time. On the material dates i.e. 31.03.82,
02.04.82, 19.04.82 and 03.05.82, he was present at the post office and received money from depositors in respect of S.B. accounts. PW4 has proved his signature in the attendance register on all these dates. That apart, he has also proved his handwriting and initials in the pay-in-slips and the passbooks of the respective depositors. PW5 conducted departmental enquiry on receipt of complaints of depositors and found the appellant responsible for the defalcation. The aforesaid evidence clearly establishes that the appellant had acted as the S.B. and Ledger clerk on the relevant dates and had received money from the depositors and acknowledged receipt of the same by endorsing his initials in the pay-in-slips as well as making entry in the passbook to that effect. However, there is no corresponding entry made by him in the Logbook and Ledger book of the post office. Due to absence of such entries it could not be detected that the amounts received by the appellant were not accounted for in the Government account and the appellant had misappropriated the aforesaid sums of money.
PW6 and 8 are independent depositors. They have also corroborated the evidence of the official witnesses that the appellant was the person who was present at the S.B. counter and received the aforesaid sums of money from them. Against such evidence it has been argued that PW4 is an inimical witness and he ought not to be relied. It has also been argued that failure to examine the handwriting and initials of the appellant by way of handwriting expert has caused a severe dent to the prosecution case.
It is trite law that a superior officer under whom a person is employed is a competent witness to prove his handwriting. It is not necessary that in all cases an opinion of a handwriting expert is to be obtained. In the instant case, I do not find any material on record to show that there was enmity between PW4 and the appellant. A suggestion had been made that PW4 was put in suspension but the same was denied by the witness. No specific evidence to that effect has been led on behalf of the defence.
Hence, I am of the opinion that the evidence of PW4 as corroborated by other official witnesses including independent depositors namely, PW6 and 8 is reliable and clearly establishes the prosecution case beyond reasonable doubt. The evidence of the depositors namely, PW6 and 8 have been criticised on the ground that they have been tutored by PW4. It is true that PW8, in cross-examination, admitted that Kumud Babu had asked him to identify the appellant but the evidence of PW6 does not suffer from any such blemish. Mere presence of Kumud Babu in the Court has little significance inasmuch as he had already been examined in the case prior to the examination of PW6.
In the light of the unblemished evidence of PW6 corroborating the version of PW4 and other official witnesses, I am of the opinion that there is no escape from the conclusion that the appellant had received the money at S.B. counter as S.B. and Ledger clerk and misappropriated the same without crediting the said amount to the Government treasury. In order to cover his misdeeds he omitted to make necessary entries in the Logbook and S.B. Ledger book of the post office which was his duty to maintain in the ordinary course of business. The desperate plea of absence of the appellant has no legs to stand. Apart from raising such plea in the course of his examination under Section 313 of the Code of Criminal Procedure, such fact has not been probabilised by leading defence evidence. It is the duty of the defence to prove alibi and the appellant hopelessly failed to do so. In the face of evidence of the official witnesses emphatically stating his presence in the post office on the relevant dates and the identification of the appellant by PW6, I uphold the conviction of the appellant.
Coming to the issue of sentence I find that the incident had occurred three decades ago and the appellant has no previous criminal antecedent. The appellant has already suffered imprisonment for eight months. Hence, I modify the sentence imposed on the appellant and direct that the appellant shall suffer imprisonment for the period already undergone and shall pay a fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for six months more. Such fine shall be paid within four weeks from date.
The bail bond of the appellant is cancelled and he is directed to appear before the trial court within four weeks and deposit the fine as aforesaid. If he fails to do so, the trial court shall be at liberty to execute the sentence and realise the fine in accordance with law.
The appeal is disposed of.
The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.
I record my appreciation for the able assistance rendered by Ms. Meenal Sinha, learned advocate, as Amicus Curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) akd