Calcutta High Court (Appellete Side)
Golam Mortaza vs The State Of West Bengal on 28 November, 2008
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Debiprasad Sengupta
And
The Hon'ble Justice Pranab Kumar Deb
C.R.A. No. 127 of 2004
GOLAM MORTAZA
Versus
THE STATE OF WEST BENGAL
For the Appellant : Mr. Ashis Kumar Sanyal,
Mr. Pradip Kumar Chatterjee,
Mr. Rakheswar Dey Sarkar,
For the State : Mr. Sushil Kumar Mahato,
Ms. Ratna Ghosh,
Ms. Minoti Gomes,
Heard on : 30.4.08, 26.6.08 & 11.8.08
Judgement on : 28.11.2008
DEBIPRASAD SENGUPTA, J. :
This appeal is directed against the judgment and order of conviction and sentence passed by the learned Judge, First Special Court, Burdwan in Special Case No. 8 of 2003 thereby convicting the accused appellant under Section 409 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000.00, in default of which rigorous imprisonment for a further period of two months.
The prosecution case, in short, is that the accused appellant was in-charge of Sadar Court Malkhana of Burdwan District Court and he used to disburse salary of the police personnel from the said Court Malkhana. It was the prosecution case that on 2.4.2003 in the evening an undisbursed amount of Rs.2,26,410.00 was kept in Court Malkhana in a box under lock and key. The said box was also kept in a grill cage under lock and key. The accused appellant, who was the Court Sub-Inspector, after disbursing the amount and checking of the account, kept the undisbursed amount within the said box under lock and key, which was kept inside the grill cage, which was also locked by him. The night guards, who were on duty, checked the locks and spent the night there. On 3.4.2003 in the morning the key guard, with whom the key of the main gate was kept, came there and detected that the lock of the grill gate was open, but the box containing the said amount of undisbursed money was under lock and key. The box was unlocked and it was found that the undisbursed amount as aforesaid was missing from the said box. It was the prosecution case that as no stranger had any access in the Court Malkhana and the lock of the cash box was not tampered and the accused appellant, Golam Mortaza, was in-charge of Court Malkhana and was the custodian of the key, he misappropriated the undisbursed government cash of Rs.2,26,410.00. The accused appellant, Golam Mortaza, received total cash of Rs.5,24,733.00 and cash of Rs.42,449.00 and he disbursed cash of Rs.3,40,772.00. Accordingly, the amount misappropriated was Rs.2,26,410.00.
On the basis of a complaint lodged by the Court Inspector of Police, Sadar Court, Burdwan, a case was registered with Burdwan Police Station on 3.4.2003 under Section 409 of the Indian Panel Code. On completion of investigation, charge- sheet was submitted under Section 409 of the Indian Penal Code and the charge was accordingly framed by the learned Trial Judge under the said section.
To prove its case, the prosecution examined as many as 13 witnesses and none was examined on behalf of the defence.
Mr. Amarendra Prosad Talukdar was examined as P.W. 1 and he was the informant of the case. He deposed that C.S.I. Golam Mortaza (accused appellant) was in-charge of Court Malkhana and he was in exclusive charge of the lock and key of the Court Malkhana as also the box where the undisbursed money was kept. He further deposed that lock and key of the box was intact and on being asked, Golam Mortaza failed to give any satisfactory reply for the missing of the said undisbursed money. P.W. 1 further deposed that receiving and maintenance of accounts were entrusted with Golam Mortaza and during his tenure he was in-charge of cash and Malkhana. On 3.4.2003 the lock and key of the box, where the undisbursed money was kept, were intact. In his cross-examination, P.W. 1 deposed that Golam Mortaza was solely responsible to see as to whether the Malkhana gate was properly locked or not. It was also the duty of said Golam Mortaza to see as to whether the Malkhana was secured.
P.W. 2, Md. Sonawar Hossain, deposed that on 2.4.2003 he along with Constable Uma Chowdhury were posted at Burdwan Court Malkhana and they attended Court Malkhana duty in the night. He further deposed that accused appellant, Golam Mortaza, was the custodian of the keys of the gates of the Malkhana as also of the box where the money was kept. He further deposed that on 3.4.2003 at about 5.30 / 5.45 A.M. they handed over the charge to Sri Sunil Goswami and the charge was handed over after showing him all the things were O.K. P.W. 3, Uma Prosad Chowdhury, corroborated the evidence of P.W. 2 and he stated that the accused appellant was the custodian of the keys of the Court Malkhana.
P.Ws. 4 and 5, namely, Sri Milan Roy and Sri Sitanshu Sekhar Dey, two police constables, also corroborated the evidence of P.Ws. 1 to 3 and they have stated that on 2.4.2003 the salary was disbursed by the accused appellant for the month of March and the amount of undisbursed money was kept in a box and the present appellant, Golam Mortaza, was the custodian of the key.
The evidence of P.Ws. 6 and 7 also corroborated the evidence of other witnesses as discussed above.
P.W. 8, who was also a police constable, deposed that on the following morning i.e. on 3.4.2003 at about 5.55 A.M. Uma Prosad Chowdhury and Sanowar Hossain, who were on night duty, handed over the key of the Malkhana gate and showed him the locks of the Malkhana after handing over the key of the entrance gate of Malkhana to him. P.W. 8 further deposed in cross-examination that before departure of the C.S.I. (accused appellant) he checked all the locks and found them properly secured.
P.W. 9, a Home Guard, deposed that on 2.4.2003 he was present in the room when the salary was being disbursed and on the following day he heard about the theft of cash. P.W. 9 had not stated in his evidence that the box where the undisbursed amount was kept in the Malkhana was in unlocked condition.
P.W. 12, Dr. Susanta Mukherjee, was the Sr. Scientific Officer, F.S.L., Government of West Bengal, who examined the documents, which were sent to him. F.S.L. report shows that the locks were operated by the seized keys and not with any duplicate key or any foreign body and no force was applied in opening the said lock.
P.W. 13 is the Investigating Officer of the case, who on completion of investigation submitted charge-sheet against the accused appellant.
The learned Advocate appearing for the appellant submits that there is no evidence on record to show that the accused was entrusted with the government money. It is submitted by him that the Inspector was overall in-charge of the office and Malkhana and there was no order in writing from the Inspector-in-charge of the Malkhana to the effect that the accused appellant was entrusted with the money for disbursement of salary and in absence of any order in writing, it cannot be said that he was entrusted with the amount or he was in dominion of the said amount. It is submitted by the learned Advocate of the appellant that in the night of 2.4.2003 P.Ws. 2 and 3 were on duty and both of them said that they collected the key from P.W. 8 in the barrack. Both of them deposed that locks of Malkhana were kept under lock and key and they checked it. The learned Advocate further points out that P.W. 12 deposed in his evidence that duplicate key was possible and it could be manufactured by any key man and in case of unlocking any lock by a duplicate key there may not be any mark on the lock. It is the argument of the learned Advocate of the appellant that the possibility of opening the lock of the main gate as also of the cash box by any duplicate key cannot be ruled out. It is submitted by the learned Counsel that not a single witness had deposed that they saw the appellant Golam Mortaza to take away the polythene bag containing the money. But we are unable to accept such contention as it appears from the evidence of P.W. 1 as also other witnesses that Golam Mortaza, the appellant, was in exclusive charge of the Malkhana and he was the custodian of the key of the Court Malkhana as also of the box where the undisbursed money was kept. It is in the evidence of the prosecution witnesses that an amount of more than Rs.3 Lacs was disbursed as salary to the police personnel and the undisbursed amount of Rs.2,26,410.00 was kept in a box, which was locked by the appellant and was kept inside an iron cage, which was also locked by the appellant. The F.S.L. report shows that the locks were operated by the seized keys and not with any foreign body or duplicate key and no force was applied for unlocking the said lock. The lock of the trunk was intact and it was not broken. There is also no explanation by the accused in his examination under Section 313 of the Code of Criminal Procedure about missing of the cash from the box. If the cash box was intact, it was not possible for any person to take away the money from the said box when the accused appellant himself locked the box and was the custodian of the key of the said box.
The learned Advocate appearing for the State submitted that it is apparent from the evidence of P.Ws. and the documents exhibited that the accused appellant was entrusted with the property in question and it is also apparent from the evidence on record that the lock of the box inside the iron cage was kept intact and the F.S.L. report shows that there was no application of force or sign of application of foreign instrument in opening the said locks. It is the further submission of the learned Advocate of the State that the appellant was in-charge of the Court Malkhana at the material time and he was the custodian of the lock and key of the Court Malkhana as also of the box where the undisbursed money was kept. No satisfactory explanation could be given by the accused appellant in his cross-examination under Section 313 Cr. P.C. The appellant being a public servant within the meaning of Section 409 of the Indian Penal Code is liable for misappropriation of such money.
We have heard the learned Advocates of the respective parties. We have also perused the entire evidence on record. After scrutinizing the entire evidence on record we do not find any reason to disbelieve the evidence of the prosecution witnesses. All the witnesses deposed in the same tune that the accused appellant was in-charge of Malkhana and he was also the custodian of the key of the box where the undisbursed amount was kept. The witnesses were cross-examined at length, but nothing infirm could be elicited from the cross-examination of those witnesses. The accused appellant was a public servant and in such capacity as public servant he was entrusted with the property in question with the dominion over it. Although P.W. 12 deposed that duplicate key was possible in opening the lock, but there is no such evidence that theft was committed after opening the lock with any duplicate key or by tampering with lock by any foreign object. On the contrary, the lock of the iron box, in which the money was kept, was found intact and there is no evidence of tampering with the lock by any duplicate key or by any other instruments. The accused being the custodian of the key was the only person to explain how the money was lost. There being no explanation from the side of the accused, we are unable to accept the arguments advanced by the learned Advocate appearing for the appellant. The undisbursed money was public money and misappropriation of such money comes under Section 409 of the Indian Penal Code as the accused was a public servant.
After hearing the learned Advocates of the respective parties and considering the evidence on record, we do not find anything wrong with the judgment and order of conviction and sentence passed by the learned Trial Judge convicting the accused appellant under Section 409 of the Indian Penal Code. We do not find any reason to interfere with such order of conviction. However, considering the fact that such incident took place in the year 2003 as also the age of the present appellant, we are of the view that it will meet the ends of justice if the accused appellant is sentenced for a period of RI for five years and to pay a fine of Rs.5,000.00. Accordingly, we affirm the order of conviction, but reduce the sentence of imprisonment of ten years to RI for five years. The accused is also sentenced to pay a fine of Rs.5,000.00, in default to suffer further RI for two months.
The appeal is accordingly dismissed. But the sentence is reduced as aforesaid. The accused appellant, who is now on bail, is directed to surrender before the Court below immediately to serve out the remaining period of his sentence.
A copy of this judgement along with LCR may be sent down to the court below immediately.
(DEBIPRASAD SENGUPTA, J.) I agree, (PRANAB KUMAR DEB, J.)