Sikkim High Court
State Of Sikkim vs Kul Chandra Baral on 11 October, 2004
Equivalent citations: 2005CRILJ1027
JUDGMENT R.K. Patra, C.J.
1. This appeal at the instance of the State is directed against the appellate judgment dated 13-8-2003 passed by the Sessions Judge (Special Division-I) in Criminal Appeal No. 2/2002 acquitting the respondent of the charge under Section 409 IPC who was convicted and sentenced thereunder by the Chief Judicial Magistrate (E & N) in Criminal Case No. 177/2000.
2. Briefly stated the prosecution case is that at the material time, the respondent was an Assistant Sub-Inspector in-charge, Food Godown, Pakyong. In that capacity he was entrusted with and thus had full domain over the essential commodities like rice, sugar etc. stored in the godown. In course of physical verification of the stock huge discrepancies were noticed in the stock compared with the sale proceeds. Accordingly FIR was lodged against him and he was placed under suspension. During the period of suspension he deposited bank draft bearing No. 462612 dated 10-3-2000 for Rs. 2,10,000.00 with the department on 16-3-2000, towards sale proceeds of rice and sugar. It was noticed that he committed criminal breach of trust of government money in terms of sale proceeds of rice amounting to Rs. 39,33,659.33 and sugar amounting to Rs. 54,161.26, the total amount being Rs. 39,87,820.59. Accordingly charge sheet was filed against him Under Section 409 IPC for having allegedly committed criminal breach of trust in respect of sale proceeds of rice and sugar amounting to Rs. 37,77,820.59. (deducting Rs. 2,10,000.00 deposited by him as mentioned above.)
3. The trial Judge on consideration of the evidence adduced on behalf of the prosecution recorded the following findings :
(i) Admittedly the respondent was a public servant and in that capacity he was entrusted with the property in question. He was in charge of the food godown from 8-4-1999 to 27-9-1999 and it was his duty to receive stocks of food grains, distribute them among the fair price shop owners and maintain accounts of the sale proceeds. (Vide para 112 of the judgment)
(ii) Shortage of Rs. 31,77,479.84 found during the verification which was conducted on 17-9-1999 has not been denied by the respondent who admitted while answering to questions No. 10, 24, 25, 27, 28, 29 and 39 put to him under Section 313 Cr. P.C. (Vide para 116 of the judgment).
(iii) The respondent failed to explain as to the difference in the deposit of the sale proceeds and receipt of stocks. (Vide para. 165 of the judgment).
(iv) The respondent was in-charge of Pakyong Food Godown properties which were entrusted to him and he misappropriated the same. (Vide para 173 of the judgment).
On the basis of the aforesaid findings, the respondent was convicted and sentenced under Section 409 IPC. Against the said conviction and sentence he preferred appeal in the Court of the Sessions Judge (Special Division-I) and the appellate judge set aside the conviction and sentence recorded by the Trial Judge and acquitted him of the charge.
4. A bare perusal of the impugned appellate judgment would show that the learned sessions Judge without taking note of the prosecution case and the findings recorded by the trial Judge started addressing himself right from paragraph 3 till the end of the judgment on the arguments advanced on behalf of the respondent. Neither has he discussed the evidence on record nor cared to say whether the findings of the trial Judge are based on evidence and acquitted the respondent by recording the following findings :
(i) The charge is bereft of any details which has resulted in prejudice to the respondent in his trial.
(ii) The informant PW-21 who lodged the FIR was not examined in course of investigation and for this the respondent was prejudiced in making his defence during the trial.
(iii) The respondent was deprived of the opportunity to properly defend himself in view of the confusing and conflicting types of evidence adduced against him.
(iv) No question having been put to the respondent with regard to his signatures appearing on challans Ext. P4 (1) to (40), P5 (1) to (44), P40(1) to (40), P41(1) to (41), P42 (1) to P42 (3) and Ext. P43(1) to (42) they should be excluded from being considered. (v) The prosecution having failed to prove the factum of entrustment and factum of misappropriation of the entrusted articles the conviction is liable to be set aside.
5. A cursory look at the impugned judgment would show that the learned sessions Judge has abdicated his power as an appellate Court Section 386(1) Cr. P.C. mandates the appellate Court to peruse the record. As has been held by the Supreme Court in Shyam Deo Pandey v. State of Bihar, AIR 1971 SC 1606 : (1971 Cri LJ 1177), perusal of the record is a condition precedent for a proper disposal of appeal. The learned sessions Judge has failed to do so.
6. Each of the grounds mentioned above, on the basis of which he has acquitted the respondent, is not sustainable. It is a case under Section 409 Cr. P.C. The learned Sessions Judge has not given due weight to Sub-section 2 of Section 212 Cr. P.C. which lays down inter alia that when the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or describe the movable property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed. Section 464 Cr. P.C. provides that no finding, sentence, or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge unless in the opinion of the Court of appeal a failure of justice has in fact been occasioned thereby.
The object of a charge is to warn the accused of the case he is to answer. In other words, charge is an accusation made against a person in respect of an offence alleged to have been committed by him. In order to hold that error, omission or irregularity in the charge is not curable, the accused has to show that by such error, omission or irregularity a failure of justice has in fact been occasioned. Whether there is a failure of justice or not is a question of fact. In the case at hand the respondent had opportunity to cross-examine the witnesses and in fact he cross-examined the PWs. It is not known what led the learned Sessions Judge to hold that there was failure of justice. As indicated above, in paragraph 116 the trial Judge recorded finding to the effect that shortage of Rs. 31,77,479.84 found during the verification which was held on 17-9-1999 has not been denied by the respondent who admitted it while answering to questions No. 10, 24, 25, 27, 28, 29 and 39 put to him under Section 313 Cr. P.C. This being the position there could hardly be any valid ground to assume that the respondent was in any way prejudiced in defending himself merely because the charge was defective.
7. Law is well settled that once entrustment of property is proved the prosecution is no longer obliged to establish the precise mode of conversion or misappropriation by the accused of the property entrusted to him. 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 but where he is unable to account or renders an explanation for his failure to account which is untrue, inference of misappropriation with dishonest intent may readily be made (see AIR 1960 SC 889 : (1960 Cri LJ 1250)). The learned appellate Judge has failed to take note of the aforesaid dictum of the Supreme Court.
8. There appears to be no justification for the learned appellate Judge to hold that the respondent was deprived of the opportunity to properly defend himself because of the confusing and conflicting types of evidence adduced in the case. If the prosecution has adduced conflicting or confusing type of evidence that goes in favour of the accused because the prosecution is obliged to adduce reliable, cogent and satisfactory evidence in support of the charge.
9. For all the aforesaid reasons I set aside the judgment of the learned Sessions Judge and remit the matter to him who will decide the appeal afresh untrammelled by any observation made by me in this order on the merits of the case.
10. In the result the Government appeal is allowed.