State vs . on 20 March, 2014

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Delhi District Court

State vs . on 20 March, 2014

     IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
        ADDITIONAL METROPOLITAN MAGISTRATE (EAST),
               KARKARDOOMA COURTS, DELHI.

FIR No.            : 42/2011

PS                 : Gandhi Nagar

Offence complained of : 408 IPC

Date of commission of offence : 19.04.2008

Unique Case ID No. : 02402R0144112012

STATE  Vs. 
1.

Tapas Mandal (PO) S/o Sh. Madhu Sudan Mandal R/o Village Adampur, PS Dasspur, District Midnapur (WB)

2. Arun Mandal S/o Sh. Madhu Sudan Mandal R/o Village Adampur, PS Dasspur, District Midnapur (WB)

3. Sanjit Rishi (PO) S/o Sh. Sudarshan Rishi R/o Village Adampur, PS Dasspur, District Midnapur (WB) ............Accused Sh. Sanjib Parmanik S/o Sh. Mihir Lal Parmanik R/o H. No. 5681, Swami Dayanand Gali, Old Seelampur, Delhi ..........Complainant Date of Institution : 22.05.2012 Plea of accused person : Pleaded not guilty FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 1 / 13 SPS Laler, ACMM (East) Date of reserving judgment/ order : 20.03.2014 Date of pronouncement : 20.03.2014 Final Order : Acquitted u/s 408 IPC : Convicted u/s 174A IPC BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS It has been alleged by complainant in his complaint that the accused persons namely Tapas Mandal, Arun Mandal and Sanjit Rishi were working in his jewellery shop. On 19.04.2008 complainant gave 700 gms gold to accused persons for making jewellery, who were residing on first floor of complainant's house and on 21.04.2008 at about 6:00 AM when complainant went on 1st floor of his house, he found that accused persons ran away from there with 700 gms gold and thereby accused persons committed the offence of criminal breach of trust by misappropriating the 700 gms gold and committed an offence punishable u/s 408 IPC.

FIR On the basis of the said facts and on the complaint of the complainant Sh. Sanjeev Parmanik, an FIR bearing number 42/2011 was lodged at Police Station Gandhi Nagar.

CHARGE After investigation, chargesheet under section 408 IPC was filed against accused persons as they were declared PO. Accused Arun FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 2 / 13 SPS Laler, ACMM (East) Mandal who is facing trial was declared PO on 15.10.2011.

The accused was apprehended and produced to face trial and he was supplied the copy of charge sheet as per section 207 Cr. P.C. On the basis of the chargesheet, a Charge for the offence punishable under section 408 IPC and 174A was framed against the accused Arun Mandal and read out to the said accused, to which the accused Arun Mandal pleaded not guilty and claimed trial on 13.02.2013.

JUDICIAL RESOLUTION Offence u/s 408 IPC The offence alleged to have been committed by accused Arun Mandal is offence under section 408 of the IPC.

The ingredients to prove the offence punishable under section 408 IPC are as follows: (1)Entrusting any person with property or with any dominion over property;

(2)The person entrusted :

(a) dishonestly misappropriating or converting to his own use that property; or

(b)Dishonestly using or disposing of that property or willfully suffering any other person so to do in violation:

(i)of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii)of any legal contract made touching the discharge of such trust.

(3)That the accused committed the above stated acts as an employee.

This offence consists of any one of four positive acts, namely, FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 3 / 13 SPS Laler, ACMM (East) misappropriation, conversion, user, or disposal of property. Neither failure to account nor breach of contract, however dishonest, is actually and by itself the offence of criminal breach of trust.

In order to prove the above said allegation against accused Arun Mandal, the prosecution has examined 9 witnesses, of which PW 4 is the complainant himself namely Sh. Sanjeeb Pramanik.

The complainant in his examinationinchief deposed that he used to get prepared gold jewellery from his workers at Chand Mohalla, Gandhi Nagar and Chandni Chowk. There were three workers with him who used to prepare gold jewellery at the time of incident namely Arun Kumar Mandal, Tapas Mandal and Sanjit Rishi. That on 19.04.2008 he gave 700 gms of gold to the aforesaid three workers for preparing jewellery, who used to prepare jewellery on the first floor of the house of complainant. On 21.04.2008 at 6:00 AM, he noticed that all the aforesaid three persons were missing with the 700 gms gold given by him. He made a complaint in this regard to SHO, PS Gandhi Nagar on 22.04.2008 Ex. PW 4/A but no action was taken by the police. He made another complaint on 18.08.2009 and 12.10.2010, which are Ex. PW 4/B and Ex. PW 4/C. When no action was taken by the police he filed an application in the court u/s 156 (3) Cr. P.C. on 31.01.2011 which is Ex. PW 4/D and the complaint case is Ex. PW 4/E. He made another complaint to SHO, PS Gandhi Nagar on 10.02.2011 which is Ex. PW 4/F. Thereafter, Arun Mandal was arrested from a shop namely Radha Moham Jewellers, GIP Colony, Naya Banchh Road, Hawra, PS Bankra at his instance vide arrest memo Ex. PW 3/A and the personal FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 4 / 13 SPS Laler, ACMM (East) search of accused was also conducted in his presence vide Ex. PW 3/B. He lastly deposed that neither the jewellery nor gold was recovered from the possession of accused and that disclosure statement of accused Arun Mandal was recorded which is Ex. PW 3/C. It may be noted that besides the complainant (PW4) there is no other witness to the alleged entrustment of gold by the complainant to the accused persons.

It has been observed by Hon'ble Supreme Court in Rama Swami Nader Vs. State of Madras AIR 1958 SC 56 that the word 'entrusted' in Section 405 of IPC is very important and unless there is entrustment, there can be no offence under the said section.

In the present case, the alleged entrustment of 700 gms of gold was made by the complainant orally and no document in this regard was prepared. Not only this the complainant also failed to produce the rough diary that he allegedly maintained as regards the gold that he entrusted to the accused persons. Further the complainant has also failed to prove that he was in possession of 700 gms of gold on 19.04.2008 when he allegedly entrusted the said gold to the accused persons. The testimony of the complainant in this regard is as under:

1. "I did not file any documentary proof in regard of having 700 gms of gold by me. Vol. I used to maintain a rough diary. I have not brought the diary today."

2. "I have no receipt regarding delivery of 700 gms gold to accused Arun Mandal."

FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 5 / 13 SPS Laler, ACMM (East)

3. "Out of 700 gms gold my gold was 150 gms. I have no proof regarding my 150 gms gold. The shopkeepers who had given 550 gms gold to me for preparing gold jewellery had taken the property documents from me after the incident, however, I am residing in the said house."

Thus the complainant has failed to establish that he was in possession of 700 gms of gold on 19.04.2008 and he has further failed to establish that he entrusted 700 gms of gold to accused Arun Mandal.

Moreover, the complainant has also failed to produce any document to show that accused Arun Mandal was his employee and the testimony in his regard is as under:

1. "The accused Arun Mandal was my employee for the last 78 years prior to the incident. I had not filed any proof of the accused being an employee of me and I had also not filed proof regarding payment of salary."

2. "I had given proof of employment of accused with me to IO i.e. copy of police verification of tenantship at my house and also filed the same with the application under Section 156(3) Cr. P.C."

Thus, even as per the complainant there is no documentary proof of the fact that accused Arun Mandal was an employee of the complainant and the only document which the complainant has referred to is also with respect to the tenancy of accused and not with respect to the employment of accused by the complainant.

Besides all this no recovery was made from the accused as PW4/complainant stated in his chief that "neither the jewellery nor gold FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 6 / 13 SPS Laler, ACMM (East) could be recovered from the possession of accused". PW6 SI Mahavir Singh / IO has also admitted that no recovery was made from accused and that no proof regarding employment was given by the complainant to him. PW6 also deposed that no eye witness came forward or brought by complainant during investigation in order to prove the allegation of entrustment and consequent breach of trust.

Last but not the least, while PW6 SI Mahavir Singh stated that the place from where the accused was arrested was revealed to him by the complainant, but the complainant has not disclosed anywhere that how he came to know that accused Arun Mandal was running a jewellery shop at Hawra, West Bengal. It may also be noted that the complainant has admitted that he and accused belong to the same district and the village of accused is just 1.5 kms away from the village of complainant. However, it has not been stated by the complaint as to from which source he came to know about the location of accused Arun Mandal.

Lastly, the complainant has himself admitted in his cross examination that despite the fact that the complainant noticed that the accused persons were missing with 700 gms gold on 21.04.2008 at 6:00 AM, no complaint in this regard was made by him and no explanation has been given by him as to why no complaint was made by him on 21.04.2008 itself and as to why he did not immediately call PCR on 100 number.

In view of the aforesaid, the prosecution has failed to prove entrustment and breach of trust and as such no offence u/s 408 IPC. Accused Arun Mandal is accordingly acquitted u/s 408 IPC. FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 7 / 13 SPS Laler, ACMM (East) Offence Section 174A The accused persons has also been charged for offence u/s 174A IPC as he failed to appear before court on 30.08.2011 despite the publication of proclamation u/s 82 Cr. P.C. on 14.09.2011 at his residence at GIP Colony, Naya Banchh Bazar Mandi, PS Doniyam,District Hawra, West Bengal.

In order to prove that process u/s 82 Cr. P.C. was published on 14.09.2011, PW8 Ct. Rajender was examined and he testified before the court that after receiving process u/s 82 Cr. P.C. qua accused Arun Mandal on 13.09.2011, he visited GIP Colony, Naya Banchh Bazar Bankra, Hawra, West Bengal where he met Alok Maan, who stated that accused was running his jewellery shop in the name of Radhey Mohan which is closed for last 4 5 months. On 14.09.2011, he again visited the village address of accused at Midhnapura, WB where Tarun Kumar Mandal, brother of accused met him who told him that accused was not visiting the family for last one year. Thereafter, Ct. Rajender announced in loud voice in the locality about the proclamation against the accused and pasted a copy of the same at the shutter of the shop of GIP Colony and at the main gate of the village address and another set at the court's main gate. The report on the process u/s 82 Cr. P.C. is Ex. X. Cross examination of this witness was conducted by the Ld. defence counsel. however, nothing has come in his cross examination, which may create doubt in the mind of court as regards publication of process u/s 82 Cr. P.C. Accordingly, the court is satisfied that process u/s 82 Cr. CP.C. was duly published as per the provisions of the said section FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 8 / 13 SPS Laler, ACMM (East) and despite publication accused failed to appear before the court on 30.08.2011 and thereby committed an offence u/s 174A (Part - I). Accordingly, accused Arun Mandal is convicted u/s 174A IPC ANNOUNCED IN THE OPEN COURT ON 20.03.2014.

(SAURABH PARTAP SINGH LALER) ACMM (East)/KKD/ 20.03.2014 Certified that this judgment contains 13 pages and each page bears my signatures.

(SAURABH PARTAP SINGH LALER) ACMM (East)/KKD/ 20.03.2014 FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 9 / 13 SPS Laler, ACMM (East) IN THE COURT OF SH. SAURABH PARTAP SINGH LALER, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (East), KARKARDOOMA COURTS, DELHI.

FIR No.            : 42/2011

PS                 : Gandhi Nagar

Offence complained of : 408 IPC

Date of commission of offence : 19.04.2008 Unique Case ID No. : 02402R0144112012 STATE Vs.

1. Tapas Mandal (PO) S/o Sh. Madhu Sudan Mandal R/o Village Adampur, PS Dasspur, District Midnapur (WB)

2. Arun Mandal S/o Sh. Madhu Sudan Mandal R/o Village Adampur, PS Dasspur, District Midnapur (WB)

Arguments on sentence were heard at length on behalf of both the parties.

Punishment prescribed by Law: As per section 174A IPC, the punishment prescribed is imprisonment for three years or fine or both. Arguments : Ms. Dinesh Yaduvanshi, LAC for accused submitted that this is the first offence of the accused and that the accused has been acquitted in the main offence u/s 408 IPC. He has further submitted that accused person is in custody since 04.12.2012 i.e. for over an year and that lenient view be taken.

Considerations: At this stage of order on sentence, the court is well aware of the fact that protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing an appropriate sentence and that it is the duty of this court as that of any other court, to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment is a goal respected in principle.

Thus, the court at this stage is required to give consideration to FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 11 / 13 SPS Laler, ACMM (East) the facts and circumstance of this case for deciding the just and appropriate sentence to be awarded for offence under section 174A IPC, and also considered the aggravating and mitigating facts and circumstances in which a crime has been committed as the same are to be delicately balanced on the basis of relevant circumstances in dispassionate manner by this court.

Aggravating circumstances

1. Nil.

Mitigating circumstances

1. That the accused is in custody since 04.12.2012 (for more than an year).

2. Accused has been acquitted in the main offence u/s 408 IPC. Order on Sentence: As the accused has been convicted for offence under section 174A IPC in this case on 20.03.2014, hence, the accused is sentenced as under:

(a) To undergo simple imprisonment for the period already under gone i.e. since 04.12.2012 for offence u/s 174A IPC.

Benefit under Section 428 Cr. P.C is given to the convict. File be consigned to Record Room.

(S. P. S. LALER) ACMM(East)/KKD/20.03.2014 FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 12 / 13 SPS Laler, ACMM (East) FIR No. 42/2011 PS: Gandhi Nagar State Vs. Tapas Mandal 20.03.2014 Present: The convict in person produced from JC.

Sh. Dinesh Yaduvanshi, LAC for accused.

Arguments heard on the point of sentence.

Record perused.

Vide my separate order, the accused has been acquitted for offence under section 408 IPC and has been convicted for offence under section 174A IPC.

Arguments heard on the point of sentence. Vide separate order the accused is sentenced to undergo simple imprisonment for the period already under gone i.e. since 04.12.2012 for offence u/s 174A IPC.

Benefit under Section 428 Cr. P.C is given to the convict. File be consigned to Record Room.

(S. P. S. LALER) ACMM/EAST/KKD/20.03.2014 FIR No. 42/2011 State Vs. Tapas Mandal & Ors. Page No. 13 / 13 SPS Laler, ACMM (East)

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Delhi District Court

State vs . on 20 March, 2014