Calcutta High Court (Appellete Side)
Nemai Chandra Ghosh vs The State Of West Bengal on 11 April, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.R.A No. 180 of 2001
Nemai Chandra Ghosh
Versus
The State of West Bengal
For the Appellants : Mr. Sekhar Kumar Basu
Mr. Sudipta Maitra
For the State : Mr. R. K. Ghosal
Heard On : 25.3.2011
Judgement On : 11.4.2011
Kanchan Chakraborty, J:
1) This appeal is directed against the judgement and order dated 20.4.2001
passed by learned Judge, Special 3rd Court, Bankura in Special Court case
no. 1 of 1999 convicting the accused/appellants under Section
409/120B,466 and 477A of the Indian Penal Code, and sentencing them to
suffer rigorous imprisonment for 7 years each and to pay a fine of Rs.
10,000/- each in default to undergo simple imprisonment for 1 year for the
commission of offence punishable under Section 409/120B of the Indian
Penal Code and to suffer rigorous imprisonment for 5 years each and to
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pay a fine of Rs. 7000/- each in default to undergo simple imprisonment
for 1 year for the commission of offence punishable under Section 466 of
the Indian Penal Code and to suffer rigorous imprisonment for 5 years each
and to pay a fine of Rs. 7000/- each in default to undergo simple
imprisonment for 1 year for the offence under Section 477A I.P.c. with the
direction that the substantive sentences must run concurrently;
2) The appellant herein Nemai Chandra Ghosh and Paritosh Chatterjee along
with one Smt. Swati Ghosal were put on trial before the learned Judge,
Special Court no. 3 at Bankura to face charges under the above mentioned
Sections of I.P.C. arising out of Bankura Police Station case no. 97 of 1996
dated 8.7.1996. The Project Officer-Cum-District Welfare Officer,
Scheduled Caste and Tribe Welfare, Bankura lodged one FIR in the
Bankura police station alleging therein that the appellant no. 1 no. 1
Nemai Chandra Ghosh presented a bill bearing no. 292/95-96 of Rs.
19,996/- to him for passing the same alongwith other bills on 29.3.1996.
The Project Officer, after preliminary inquiry realised that the bill presented
before him having its reference to supply order no. 708-BNK/S.C.T.W.
dated 17.10.1995, was not genuine as the cashier-cum-storekeeper
(appellant no. 1) who was given the stock entry certificate could not
produce the stock register containing relevant entries therein. The Project
Officer allowed the bill to be presented to the treasury as the allotment was
likely to be lapsed but the cashier was advised in writing not to make
payment of the said bill and other bills passed for stationery articles
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without proper verfication. Afterwards, on scrutiny of the bill submitted by
M/S. Priya Enterprise, Kankata, Bankura, it appeared to the Project Officer
that the stock entry certificate on the body of the bills were false because
the Cashier-cum-Storekeeper could not show the relevant entry in stock
register at the time the bill was presented before Project Officer for passing
it to the tresury. During such of investigation in the middle of May 1996,
the appellant No. 1, Upper Division Clerk of the office of the Project Officer
presented a stock register stating that articles as per bill No. 708-
BNK/SCTW dated 17.10.1995 were received from M/s. Priya Enterprise
and distributed amongst the Inspectors of two blocks. Out of suspicion, the
Project Officer started questioning the Inspectors and all of them informed
him in writing that they did not receive any such stationery articles
mentioned against their names in the stock register and that they were
compelled to sign the stock register by the appellant no. 1 on assurance
that they would get the supply of the articles in due course of time. The
appellant no. 1 conjointly with Smt. Swati Ghosal his wife entered into a
conspiracy along with the appellant no. 2 with a common intention for
preparation of false stock register and also for presenting the same before
the Project Officer who in good faith authenticated the said stock register.
The appellants on the basis of fictitious receipt and distribution of stock
managed to get the false bill of Rs. 51,576/- passed and therefore,
misappropriated the said amount. The case was investigated into and on
conclusion of investigation, charge-sheet was filed against the appellant as
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well as Smt. Swati Ghosal under Sections 409/120B, 468 and 477A of IPC.
The trial was conducted by the learned Judge, Special Court no. 3 at
Bankura who framed charges against all the appellants as well as Smt.
Swati Ghosal under the above mentioned Sections to which the appellants
pleaded not guilty and claimed to be tried. Accordingly, the trial
commenced. After recording the evidence and upon consideration of the
evidence so recorded and the materials placed before the Court as exhibit,
the learned Judge found that the charges framed against Smt. Swati
Ghosal could not be established by the prosecution but the charges leveled
against the appellants were established by the prosecution beyond all
reasonable doubt. Accordingly, the learned Judge recorded their conviction
and order of sentence mentioned earlier. Being dissatisfied with and
aggrieved by the said judgement and order, this appeal has been preferred
by Nemai Chandra Ghosh and Paritosh Cahtterjee long back in the year
2001. Ultimately, the appeal is heard. The appellants have taken the
following grounds while challenging the judgement and order impugned -
i) that the impugned judgement and order of sentence
are misconceived, perverse and not maintainable in
law;
ii) that the learned Court was oblivious of the fact that no
amount was paid to the appellants in connection with
the office order no. 708 and that they were not
entrusted with any property of the office which they
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misappropriated and, as such, the charge against them
for committing criminal breach of trust punishable
under Section 409/120B of the IPC is not atall
sustainable;
iii) that the learned Judge failed to consider that after
ending of a particular financial year and at the time of
beginning of a new financial year, entries in all the
registers specially stock register and cash register are
to be started afresh without continuing the entries of
the financial year passed by;
iv) that the learned Trial Court failed to take note of the
facts that the de facto complainant i.e. P.W. 15 stated
categorically in course of his examination in Court that
he passed the bill in connection with order no. 92 after
being satisfied in all respect and that he made payment
of a sum of Rs. 51576/- in connection with that bill. Iff
so, how could the appellants be held responsible for
committing breach of trust in respect of said amount;
v) that although in the FIR the P.W. 15 stated that he
verified supply of the stationery articles from the
Inspectors and received written informations from the
Inspectors to the effect that they did not receive any
such article, no such written report of the Inspectors
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were placed before the learned Trial Court in support of
the statement of the P.W. 15;
vi) that the learned Court was oblivious of the factual
aspect that the P.W. 15 being the Project Officer
withheld payment against the bill in writing but no
such written direction of the de facto complainant was
placed before the learned Court in support of the
prosecution case;
vii) that the learned Trial Court failed to appreciate that
the P.W. 15, i.e. the Project Officer himself suspected
that the Inspectors were also involved in the
commission of the offences but only those Inspectors
were examined by the prosecution and the learned
Court relied on their testimonies in order to record
conviction of the appellants;
viii) that the learned Court was oblivious of the facts that
the P.W. 15 himself issued the office order no. 308, and
passed the bill for presenting before the treasury by
putting his signature thereon after verification of the
stock register by putting his signature. If so, how the
learned Court believed the statement of the P.W. 15
that everything was done by him was subjected to
verification afterwards especially when the written
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direction of withholding of the payment was not placed
before the learned Trial Court;
ix) that the learned Court failed to appreciate
contradictions between the FIR and evidence of the
P.W. 15;
x) that the learned Trial Court failed to appreciate that
when all the Inspectors of different blocks put their
signatures of the stock registers showing receipt of
stationery goods the presumption would be ordinarily
that they received the articles;
xi) that the learned Court was failed to appreciate that the
stock registers of different blocks were not produced
before the learned Trial Court in order to establish that
no entry in respect of receiving stationery articles
against office order 308 was made therein;
xii) that the learned Court failed to appreciate that in order
to establish forgery, handwriting of the appellants
ought to have been verified by an expert or persons
acquainted with their handwriting;
xiii) the judgement impugned being otherwise bad in law is
liable to be set aside.
3) It appears from the record that the appellants and Smt. Swati Ghosal were
arrayed to face charges under Section 466 of the IPC for forgoing certain
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documents, such as, stock register, bill etc. and under Section 477A of the
IPC for altering the stock register and bill belong to SCTWD, Government of
West Bengal with an intention to defraud and offence under Sections
409/120B IPC for committing criminal breach of trust in respect of Rs.
51576/- and Rs. 31850/- belonging to the SCTWD, Bankura, Government
of West Bengal. Smt. Swati Ghosal was found not guilty to the charges
levelled against her and was acquitted by the learned Judge. It also
appears that as many as 17 witnesses were examined on behalf of the
prosecution. The seizure lists prepared by the I.O. was marked ex. 1. The
ex. 1 shows that the office order no. 353 dated 24.8.1994, supply order no.
708 BNK/SCTW dated 17.10.1995, bill no. 250/1995 - 96, bill no. 292,
252, 254 of the year 1995 - 1996, the stock register of stationery articles
written up to batch no. 1 to 3, the cheque no. 389274 dated 26.9.1996 of
Rs. 2450/-, cheque no. 389272 dated 26.3.1996. Cheque no. 179660 dated
29.3.1996of Rs. 19600/- issued in favour of Priya Enterprise, statement of Paritosh Chatterjee, the appellant no. 2 attested by a witnesses and statement of Durgapada Roy, Inspector, statement of Ahmed Ajijul Karim, Inspector and statement of Hemanta Kumar Bajaria, Inspector, were seized by the I.O. under the seizure list The I.O. also seized a chalan of stationery articles of Priya Enterprise 0n 20.10.95 and statement of Swati Ghosal of Priya Enterprise dated 26.6.1996 under a seizure list which was marked as ex. 2/1. The I.O. seized stock register of stationery articles, supply order no. 92, written statement of Swati Ghosal, Chalan of stationery articles, 9 written statement of R. Banerjee, Nemai Chatterjee, Bires Chandra Nandy, Vevekanda Sarkar and some bills under a seizure list which was marked as ex 3/1. The notice of the Project officer addressing Vivekanda Sarkar Social workers in the said department was marked ex. 21. The petition of complaint (FIR) addressing the S.P (DEB), Bankura lodged by the Project officer has been marked ex. 21/1. The report of presenting fake bills towards the payment for stationery articles by one of the partners of M/S Priya Enterprise was marked Ex. 21/3. The signatures of Inspectors showing receipt of stationery articles from Priya Enterprise vide order no. 708 dared 17.10.1995 in the registers were marked as ex. 9/1,9/2 ,9/3 and 4/1,4/2,4/3. The register containing the signature of the Project Officer dated 25.4.1995 and the signature and writing "checked and verified" was also marked ex. 4/4. The bill cheques, office order supply order are also marked as exhibit in course of trial on behalf of the prosecution.
4) The appellants, in course of examination Section 313 Cr.P.C. denied the entire allegation and the prosecution case. However, they did not examine any witness on their behalf.
5) The point to be decided in this appeal is whether the judgement impugned is sustainable in law in the facts and circumstances of the case and on the basis of the evidence recorded and admitted into evidence in course of trial.
6) Mr. Sudipta Maitra, learned Counsel appearing for the appellants, led by Mr. Sekhar Kumar Basu, contended that the impugned judgement is 10 suffering from serious infirmities on material and relevant issues. Besides the grounds taken in the memorandum of appeal, he added to certain other points. He contended that the appellants were charged for committing an offence under Sections 409/120B of the IPC. So, according to Mr. Maitra, learned Trial Court ought to have decided as to what was the property entrusted with the appellants and what property was misappropriated by them. According to the prosecution case, the supply order was signed by the Project Officer himself. The bill was passed by him for presenting in the treasury. No stationery articles was supplied. No money was paid against the bill because payment was withheld by the Project Officer himself by issuing one written direction. If so, nothing was entrusted with the appellants and nothing was misappropriated by them. Therefore, according to Mr. Maitra, learned Court erred in framing charge under Sections 409/120B of the IPC against the appellants far less to try them for commission of such an offence when the main ingredients constituting an offence under Section 409 of IPC were absent.
7) Mr. Maitra submitted further that the learned Trial Court recorded the order of conviction of the appellants basing on the solitory testimony of the P.W. 15 i.e. Project Officer who lodged the FIR and some documents which were admitted into evidence and marked exhibit on behalf of the prosecution. The P.W. 15 i.e. the Project officer has made statements full of contradiction, inconsistency and misleading. The learned Court should not have relied on his evidence and recorded conviction.
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8) Mr. Maitra contended further that a cursory perusal of the deposition of the Project Officer (P.W. 15) makes it abundantly clear that he suspected the witnesses, such as, the P.W. 2, the P.W. 3, the P.W. 4, the P.W. 6, the P.W. 7 and the P.W. 10 were involved in the alleged crime. He prayed for sanction to prosecute all of them including the appellants and Swati Ghosal. The sanctioning authority i.e. the District Magistrate, Bankura, for reason best known to him, only accorded sanction to prosecute the appellant and Smt. Swati Ghosal. The learned Court was oblivious of the fact that those witnesses were suspected by the Project Officer as accomplish and therefore, their evidence ought to have been considered with due care and caution and, obviously, in corroboration with reliable evidence. That was not done. The learned Trial Court believed their statement sacrosanct without verifying with the registers-in-question.
9) Mr. Maitra submitted further that the appellants were charged for committing offence under Section 477 A for falsification of accounts. The allegation was denied by the appellants in course of trial. In such a case, the handwritings whereby the alleged falsification was done ought to have been examined by an expert. That was not done. Mr. Maitra contended that the learned Court without having any sufficient and satisfactory evidence before it, passed the order of conviction which, on the face of it, not sustainable in law.
10) Mr. R. K. Ghosal, learned Counsel appearing for the opposite party, State of West Bengal was candid enough to concede to the submission of Mr. 12 Maitra and contended that the prosecution case and evidence adduced in course of trial was not sufficient enough to come to a irresistible conclusion that the appellants committed offences under Sections 409, 466 and 477A of IPC. The learned Court, Mr. Ghosal contended, ought to have recorded acquittal on benefit of doubt.
11) The Criminal action against the appellants was initiated by the Project Officer, the P.W. 15. He being the head of the office was responsible to account for financial matters of the office to his superior. In doing so, no doubt, he was to depend on his staff who were assigned with specific jobs to do. Therefore, in the Trial, his evidence was very vital and important. P.W. 15 has stated in his cross-examination that at the relevant time stationery articles were supplied by M/s Priya Enterprises Kankara, Bankura and Swati Ghosal was one of the proprietors of the said Enterprise. The stationery articles supplied by M/s Priya Enterprise were taken delivery by different offices and utilized by the Inspectors and Social workers attached to different blocks. He stated further that the office order no. 708 BNK SCTW dated 17.10.1995 was issued by his office bearing his signature (ex. 20/1). The bill was placed on the last date of financial year on 29.3.1996. He verified the stock register and allowed it to present the same to the treasury on condition that the payment against the bill would be made after verification of the stock register. He put his signature on the bill and sent it to the treasury. The stock register(Ex. 9) was shown to him. He stated that he could not or did not verify the stock physically with the 13 stock register and he did not put his signature thereon. He stated further that he verified the stock register afterwards and found that no stationery article was supplied by the supplier. These statements of the P.W. 15 leave no room of doubt the suppliers M/s Priya Enterprises was entrusted with the stationery articles to be supplied against the office order no. 708 BNK SCTW dated 17.10.1995 signed by the Project Officer himself. The stationery articles were not supposed to be supplied by the appellants. So they had no direct connection with supply of the stationery articles. Therefore, the factum of entrustment was completely absent in the prosecution case as far as the appellants were concerned. The P.W. 15 stated further that he call on some of the signatories of the receipt register and asked them as to whether they got the stationery articles to which they replied in negative. She called on Inspector Durgapada Roy, Hemanta Banerjee (P.W. 6) and Ahamed Ajijul Karim (P.W. 10) and they told him that they did not get articles. They submitted the same in writing. They also stated him that they put their signatures in the register as appellants requested them to do so. P.W. 15 found many other persons put their signatures in the register and they told him that they did not get delivery of the same. The prosecution failed to place the written report of the Inspector Durgapada Roy, Hemanta Kumar Banerjee, Ahamed Ajijul Karim and other persons before the learned Judge in course of trial. The fact that all of them put their signatures on the receipts register against stationery articles was not denied. What they stated that they signed the register at 14 the request of the appellants without receiving any articles whatsoever. The learned Court accepted that fact. Hemanta Banerjee has been examined as P.W. 6 he has stated that the appellant Paritosh Chatterjee being Cashier- cum-storekeeper used to supply stationery articles. The P.W. 6 changed his that version and stated further that Paritosh Chatterjee was under
bounden duty to supply the stationery articles but in his place Nemai Chandra Ghosal used to supply the stationery articles. He stated that he put his signature on the blank register (Ex. 9) as per request of Nemai Ghosal. If the P.W. 6 is to be believed, then it can be taken for granted that the appellant Paritosh Chatterjee did not request him to put his signature on the register. Although according to the P.W. 15 the P.W. 6 reported him in writing that he put his signature on the request of both the appellants without receiving any stationery articles. P.W. 6 appears to be a strange man. He did not get supply of stationery articles on subsequent occasions but put his signatures on the register and failed to say who made the entries in the register. He in his cross-examination stated that he had no knowledge for what purpose he put his signature on the blank register.
12) He stated further that he was attached to the service since 36 years and he did not put his signature in blank register on any other prior occasion. He stated also in his cross-examination that although the appellants did not supply stationery articles on 10.4.1996, the appellant Nemai Chandra Ghosh brought stationery articles on 16.6.1996 but because of restrictions imposed by the Project Officer, no entry was made in the register regarding 15 receipt of those articles. This statement of the P.W. 6, in my opinion, creates serious doubt in the prosecution case. In fact, it challenges the veracity of the prosecution case and it is really doubtful as to what was the actual state of affairs. The P.W. 6, an employee working for 36 years in the department, had never signed any blank register excepting once which is subject matter of the case. He was not allowed to make entry of receipt of articles in the register by the Project Officer when the articles were brought by appellant Nemai Ghosal because the Project Officer did not allow him to make such an entry. This statement also confirms that stationery articles were actually supplied and entry was not allowed to made in the register because the Project Officer insisted his staff not to make any such entry.
Obviously, he had some reason to do so which was never disclosed in course of trial.
13) Ahamed Ajijul Karim was examined as P.W. 10. He has stated that he put his signature in ex. 9 on 26.9.1996. He stated further that he used to take delivery of stationery articles from appellant Nemai Ghosal. He did not receive all the articles but some articles. This statement of Ahamed Ajijul Karim, the P.W. 10 has given a complete go-bye to the prosecution case. It is not understood as to why the learned Trial Court did not take note of this statement of the P.W. 10 into consideration. D. Swami Banerjee has been examined as P.W. 7. He has stated that on 25.4.1995 Nemai Ghosh brought a register and requested him to put his signature. He signed the register although there was no entry of supply of stationery articles. He 16 afterwards, found that the entries of stationery articles were made in the register and that appellant Nemai Ghosh without supplying the stationery articles, made the entries in the register. He in his cross-examination stated that he lodged complaint to the project officer that he did not get supply of stationery articles. Project Officer did not tell him anything when he made such complaint. The P.W. 7 also did not sign any blank register on any occasion excepting one occasion i.e. on 25.4.1995. His statement appears to be contradictory to the statement of the P.W. 15. According to the P.W. 15 he placed a written complaint of non-supply of stationery articles. P.W. 7 had never signed any blank register. It is not understood why he singed a blank register only one occasion.
14) Nemai Chandra Ghosh has been examined as P.W. 2. He stated that in 1997 he was posted at Raipur block no. 2. Accused Nemai Chandra Ghosh brought a register before him relating to supply of stationery articles and requested him to put his signatures. He put his signature thereon as requested although it was blank. Nemai Chandra Ghosh did not supply the stationery articles on subsequent occasion. Subsequently the Project Officer obtained from him a report in writing of non-supply of stationery articles. According to the instruction of the Project Officer, P.W. 2 had to file one written report of non-receiving of stationery articles from the appellant Nemai Chandra Ghosh. In his cross-examination he has stated that the Project Officer was the authority but he had to work under direct supervision the BDO. Accordingly, all the requisition for stationery articles 17 were being made to the BDO not to the Project Officer. He came to the office of the Project Officer at the relevant time and Project Officer asked him as to whether he received stationery articles and ask him also to report in writing as to non-supply of stationery articles by the appellants. That being the statement of the P.W. 2, it can be said safely that the P.W. 2 was under a compulsion to make a written report to the Project officer regarding non-supply of stationery articles by the appellants at the instruction of the Project Officer although he was not working under the Project Officer directly. This statement of the P.W. 2 reveals to the fact that the Project Officer had something in his mind to fix the appellants some how in this case. Biresh Mondal has been examined as P.W. 3. He has stated that he put his signatures on the receipt book of stationery articles at the request of the appellants on 25.4.1995. In course of examination in Court, the P.W. 3 found that his signatures were deleted. He stated further that his Project Officer called on him in his office and asked him whether he got supply of stationery articles from the appellants and directed him to file a statement in writing. Accordingly he did so. In his cross-examination like all the prosecution witnesses, the P.W. 3 stated that he put his signature on the blank register excepting on 25.4.1995 for the first time. What is find from the statement of the P.W. 3 that he never signed any blank register accepting on 25.4.1995 that too at the request of the appellants and that he was directed by the Project Officer to file a report of non-supply of articles. These statements of the P.W. 3 unmistakably leads 18 to the conclusion that the Project Officer had something in mind to fix the appellants in some way in such a case. The P.W. 4 Vivekananda Sarkar in his cross-examination has stated that the register was checked and verified by the Project Officer himself on 25.4.1996. In fact, this is the case of the prosecution that the Project Officer himself issued the office order, the supply order, passed the bill, put his signature after checking and verifying the register but withheld the payment on suspicion that the appellants and P.W. 2, P.W. 3, P.W. 4, P.W. 7and P.W. 10 together, in connivance with each other made some deal with the supplier M/S Priya Enterprise. The stock register, in fact, afterwards found containing entries in respect of supply of articles by the M/s Priya Enterprises. The prosecution case was that the entries were made subsequently by the appellants and thereby they falsified the account of the office. The fact that the appellants falsified the account has not been established by any direct evidence either oral or written. No witness has stated even the P.W. 15 that the appellants falsified the accounts and that register was filled in by the appellant. No one was certain of that fact. The handwriting of the appellants were not sent to any expert for examination. The witnesses never signed any blank register save and except only one occasion and had to file written report of non-supply at the instruction of the Project Officer who was their official authorities. The receipt registers in respect of stationery articles which were being maintained in each block office were not inspected by the Project Officer. Those registers were not produced in 19 course of trial for perusal of the learned Trial Court. Had those been produced before the Project Officer or in the Trial Court, the matter would have been reflected in a different way. No one had came forward and said that the register of receipt of stationery articles maintained in the block offices did not contain entries in respect of receipt of any stationery articles against the office order no. 708. The appellants were not supposed to supply stationery articles. It was M/s Priya Enterprise who was supposed to supply the stationery articles. According to the prosecution case no stationery articles was supplied at all. In such a case, the appellants were never had any occasion to misappropriate the stationery articles. The payment against the bill of M/s Priya Enterprise was withheld in writing by the Project Officer. Although no such written direction was placed before the learned Trial Court by the prosecution, it can easily be assumed that the money so withheld by the project officer was not atall misappropriated by the appellants.
15) Before a conviction under Section 409 of the IPC can be recorded, the prosecution must prove two essential facts:- (1) the factum of entrustment and 2) the factum misappropriation of the entrusted article. In the instant case, neither the factum of entrustment nor the factum of misappropriation of the entrusted articles was proved. Therefore, I find that there was no reason for the Trial Court to record conviction of the appellant under Section 409 of the IPC.
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16) I have already discussed that falsification of account has not been established by any direct oral evidence or any documentary evidence. All the registers are found correct. All the office orders, bills, statements were signed by the Project Officer himself. The register was checked and verified by the Project Officer himself. The stationery articles, according to the prosecution were not supplied by the M/s Priya Enterprise. The payment against the bill in question was withheld. It is not understood, in such a case, how the offences under Sections 466 and 477 A IPC were committed by the appellants. The learned Trial Court relied on the evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 7and P.W. 10. All of them were suspected By the Project Officer (P.W. 10) for having connection with the alleged offences. Noneelse exepted those persons were examined as prosecution witnesses. What they stated is that they never signed any blank register excepting on one occasion. Some of them received some articles not all articles. The receipt registers of offices at the blocks wherein the witnesses attached to were not seized by the I.O. and placed before the Court. The prosecution witnesses had to file written complaint to the Project officer for non-supply of stationer articles at the instruction of the Project Officers. However, no such written complaint was seized by the I.O. and placed before the learned Trial Court. The written order of withholding the payment against the bill of M/s Priya Enterprise was not placed before the learned Trial Court and was not seized by the I.O. also. In such a case, it is really 21 doubtful whether the appellants had committed any offence under Section 409, 466 and 477A of the IPC.
17) This apart some of the witnesses stated that only Nemai Chandra Ghoshan requested them to put signature. Some of the witnesses stated that Nemai Chandra Ghosal and Poritosh Chatterjee both requested them to put their signature. They put their signatures on the blank register without asking for anything. They did so for the first time in their service carrier. It is hard to accept that the witnesses signed the blank register merely on request of the appellants. Some of the witnesses even stated that he had no idea why he put the signature of the blank signatures. This statement of the witness no. 6 appears to be completely unacceptable. He stated that the Project Officer did not allow him to make any entry in the receipt register in respect of articles supplied by Nemai Chandra Ghosal on 16.6.1996. The Project Officer acted in a peculiar way. In one hand he stated that he suspected Durgapada Roy, Ahmed Ajijul Karim, Hamanta Benrjee, Radhashyam Banerjee, Nemai Chandra Ghosal, Biresh Mondal and Vevekanda Sarkar, on the other hand, he asked them to file written complaint against the appellant accusing them for non-supply of stationery article knowing fully well that they put their signatures on the receipt register. To be stated precisely, in writing everything was found all right. The signatures of the right person at the right place were found. Only the some of the employees working under the Project Officer had to oblige the Project Officer being their official authority by filing written complaints 22 against the appellants as desired by him. Neither the BDO or the person responsible for receiving stationery articles at block level came forward and made in statement against the appellants. The receipt registers of block offices were not also verified. No physical verification of stock of stationery articles was done. The entire case was based on some ideas and suspicion which ultimately was found to be true by the learned Trial Court. I do not agree with the findings of the learned Trial Court. The entire story of the prosecution case appears to be unacceptable especially when the person entrusted with supply of the goods and submitted bill was found not guilty and all the registers and papers bear signatures of none but the project officer and the receipt register bear the signatures of the Inspectors in respect of receiving of stationer articles, the appellants should not have been convicted under Section 409, 477A and 466 of IPC. There are so many loose ends in the prosecution case which can not, in my estimate, be joined together. The prosecution case appears to be doubtful. Credibility of the prosecution witnesses is also doubtful case. They were also suspected by the Project Officer. The conduct of the Project Officer appears to be peculiar also. He signed everything but kept everything for verification. Taking everything into consideration I am of the opinion that the prosecution case is overcast with Cloud of doubt and the appellants ought to have been given benefit of doubt by the learned Trial Court.
18) In view of the discussion above, I find that the judgement impugned is to be interfered with in this appeal. The same is not being sustainable in law, 23 is set aside. The prosecution, in fact, failed to bring home the charges against the appellants beyond reasonable doubt. They are entitled to be acquitted therefrom. The appellants are found not guilty to the charge.
19) Accordingly the appeal is allowed the appellants are acquitted from the charge and be discharged from their bail-bonds.
(Kanchan Chakraborty,J)