Calcutta High Court (Appellete Side)Baidyanath Khan vs The State Of West Bengal on 31 July, 2015Author:Shib Sadhan SadhuBench:Shib Sadhan SadhuForm No.J(1)
                     IN THE HIGH COURT AT CALCUTTA
                       Criminal Appellate Jurisdiction
                               Appellate Side
Present:

The Hon'ble Mr. Justice Shib Sadhan Sadhu

                                  C.R.A. 447 of 2013

           Baidyanath Khan
                                                 ...Appellant

                                        Versus

                               The State of West Bengal
                                                   ... Respondent

For the Appellant           : Mr. Arnab Chatterjee
                              Mr. Krishnendu Bhadra

For the State              :   Mr.Anjan Datta

Heard on                :      July 06, 2015.

Judgment on            :       July 31, 2015


Shib Sadhan Sadhu, J.1.    The accused/appellant has preferred this appeal underSection 374of the

      Criminal Procedure Code, 1973 against the judgment of conviction and

      order of sentence dated 30.05.2013 and 31.05.2013 respectively passed in

      Special Court Case No.5/2009 whereby he has been convicted for offence

      punishable underSections 409/467/477of the Indian Penal Code and has

      been sentenced to suffer Rigorous Imprisonment of 4 (four) years and to

      pay a fine of Rs.10,000/- (Ten thousand) and in default thereof to further
      undergo Rigorous Imprisonment for one year for the offence underSections

     409IPC and Rigorous Imprisonment of one year and a fine of Rs.2,000/-

     and in default thereof to further undergo Rigorous Imprisonment for 6(six)

     months for the combined offences underSections 467and477IPC. Both

     the substantive sentences were ordered to run concurrently.2.   The brief relevant facts for the disposal of this appeal are that the

     accused/appellant was charge-sheeted for the aforesaid offences on the

     premise that when he was working as cashier in the office of Santipur

     Block Development Office during the period from 03.02.1995 to 31.02.1998

     he made entries in the Cash Book as and when he received the Water

     Taxes amounting to Rs.14,70,186/- (Rupees Fourteen Lakh Seventy

     Thousand & One Hundred Eighty Six) only.         Verification of records of

     Ranaghat Treasury and State Bank of India, Ranaghat Branch, revealed

     that the said amounts were not remitted in the proper head of account.

     Thus it was evident that after getting the Treasury Challan passed by the

     Ranaghat Treasury he fraudulently defalcated the said amounts by

     fabricating the State Bank of India's receipt on the Challans on different

     dates of the said period and made entries of the amounts on the basis of

     the said false and fabricated Challans in the Cash Book maintained in the

     Block Office.   It was further alleged that Ranaghat Treasury and State

     Bank of India, Ranaghat Branch had issued certificate of remittance for the

     aforesaid period which go to show that the said amounts were not remitted

     to the relevant head of account.3.   In this regard written complaint was lodged by the Block Development

     Officer, Santipur before the Officer-in-Charge, Santipur Police Station on

     the basis of which Santipur P.S. Case No.146/98 dated 18.11.1998 underSections 409/420/467/468/472/473IPC was registered. On completion

     of   investigation    charge-sheet     was    submitted         underSections

     409/420/467/468/472/473IPC against the accused/appellant.4.   The Learned Trial Judge on appearance of the accused and on perusal of

     the materials available on record including the police papers as well as

     upon hearing the Learned Counsel for the parties framed charge against

     the accused/appellant underSections 409/467/477IPC. The charge was

     read over and explained to the accused who however, pleaded not guilty to

     the same and claimed to be tried.5.   In the Trial Court in all 9 (nine) witnesses were examined on behalf of the

     prosecution.   The Written Complaint, Treasury Challans, Seizure Lists,

     Report of Handwriting Expert, Formal FIR and the Cash Book were

     admitted into evidence on behalf of the prosecution and were marked as

     Exhibits 2, 3 (collectively); 1,6 & 7; 8,9 & 10 respectively.6.   The Learned Trial Court proceeded with the trial and after considering all

     the evidence led by the prosecution oral as well as documentary came to

     the conclusion that the prosecution has successfully established the

     charge levelled against the present accused/appellant and accordingly

     recorded his conviction and sentence as aforesaid by the impugned
      judgment and order dated 30.05.2013 and 31.05.2013 respectively. Hence

     the instant appeal.7.   Mr.Arnab Chatterjee, Learned Counsel appearing on behalf of the appellant

     has taken me through the oral testimonies of P.W.1, P.W.2, P.W.3, P.W.6

     and P.W.9 and assailed the impugned judgment on the following grounds:-i)    Although it is alleged by the prosecution that on and from

           03.02.1995 to 31.08.1998 the accused/appellant was the Cashier of

           Santipur Block Development Office but no document was produced

           to show that during that period he was in service or was in duty as a

           Cashier. The Joining Report of the appellant was seized but the Job

           Card of the accused/appellant was not seized by the Investigating

           Officer. Therefore, prosecution has failed to prove beyond reasonable

           doubt that the appellant held the post of Cashier during the relevant

           period of time as alleged.ii)   The Learned Trial Judge recorded the finding that the disputed

           writings in English available on Treasury Challans (T.R.Form No.7)

           marked B & D were written by one and the same person who wrote

           the standard and specimen writing on three sheets of papers dated

           21.07.1997 and 16.01.1999 marked A & F but the I.O. (P.W.9) did

           not disclose in his evidence that the standard and specimen writings

           /signatures of the accused/appellant were taken in course of

           investigation and the same was sent for examination.        Also the

           Expert Report does not disclose the name of the person whose
        standard and specimen writings / signatures were compared with

       the disputed writings. Therefore, it cannot be said that the disputed

       writings/signatures are of the accused/appellant.iii)   The Rubber Stamp which was sent for Expert verification was seized

       from the bank and not from the possession of the accused/appellant.

       Also the Enquiry Report referred to by P.W.1 or the Treasury Report,

       Bank Report etc. referred to by P.W.2 were neither seized nor

       produced in Court. Thus it could not be established beyond doubt

       that those Challans were not deposited to the bank.iv)    P.W.2 admitted that on receiving money from any farmer towards the

       Water Tax a receipt is issued to the payee but no such receipt was

       seized or produced. Therefore, in absence of any such receipts the

       question of entrustment does not arise.v)     P.W.9 (I.O.) stated in cross-examination that he only sent the

       handwriting in the relevant entries made in the Cash Book to the

       Handwriting Expert for verification and report but he did not send

       the signatures in the said Cash Book.     He further stated that the

       Cash Book was maintained for making entries in respect of collection

       of Water Tax but in each page of the Cash Book there is no mention

       that it was for the purpose of Water Tax. Also there is no mention

       that it was only for the purpose of making entries in respect of

       collection of Water Tax. Thus the I.O. himself could not confirm that

       the Cash Book was actually used for making entries in respect of
             collection of Water Tax or it was used actually for what purpose. On

            the face of such ambiguity prosecution failed to establish that the

            Cash Book was only for collection of Water Tax and the entries were

            made by the accused /appellant but the Learned Trial Judge did not

            consider such ambiguity and recorded the conviction of the

            accused/appellant illegally.8.    Summing up all these, Mr. Chatterjee concluded by submitting that there

      is   no   clear,   cogent   or   clinching   evidence   to   show   that   the

      accused/appellant was entrusted with the alleged sum of money collected

      towards Water Tax and that he dishonestly misappropriated the same and

      urged that the appeal deserves to be allowed by setting aside the impugned

      judgment and order passed by the Learned Trial Court.9.    Mr. Chatterjee, Learned Counsel for the appellant finally submitted that

      inasmuch as the alleged occurrence took place in the year 1995 and

      considering the fact that the accused/appellant is now aged about 74 years

      and also the fact that out of the total sentence of 4 (four) years

      imprisonment, he has already suffered more than 2 years, some leniency

      may be shown on the sentence imposed.10.   On the other hand Mr. Anjan Datta, Learned Counsel appearing on behalf

      of the State wholeheartedly supported the impugned judgment and

      submitted that there is no reason to convert the finding of conviction

      arrived at by the Learned Trial Court into a finding of acquittal. According

      to him the charge levelled against the accused/appellant is amply
       established by the prosecution evidence beyond any shadow of reasonable

      doubt and that the Learned Trial Court has righly convicted the

      accused/appellant. He thus emphasized on dismissal of the appeal.11.   I have considered the submissions made on behalf of the respective parties

      and also gone through the record made available for my perusal as well as

      the relevant legal provisions. I have also given a meticulous look into the

      written notes of argument submitted by the Learned Counsel of both sides.12.   In order to appreciate the above contentions it is useful to refer the

      definition and punishment of criminal breach of trust and related provision

      provided underSections 405,406&409IPC which read as under:-"405. Criminal breach of trust. - Whoever, being in any manner entrusted

      with   property,   or   with   any   dominion   over   property,   dishonestly

      misappropriates or converts to his own use that property, or dishonestly

      uses or disposes of that property in violation of any direction of law

      prescribing the mode in which such trust is to be discharged, or of any

      legal contract, express or implied, which he has made touching the

      discharge of such trust, or willfully suffers any other person so to do,

      commits "criminal breach of trust.406. Punishment for criminal breach of trust. _ Whoever commits criminal

      breach of trust shall be punished with imprisonment of either description

      for a term which may extend to three years, or with fine, or with both.409. Criminal breach of trust by public servant, or by banker, merchant or

      agent.- Whoever, being in any manner entrusted with property, or with any
       dominion over property in his capacity of a public servant or in the way of

      his business as a banker, merchant, factor, broker, attorney or agent,

      commits criminal breach of trust in respect of that property, shall be

      punished with imprisonment for life, or with imprisonment of either

      description for a term which may extend to ten years, and shall also be

      liable to fine."In order to prove the offence of criminal breach of trust which attracts the

      provision ofSection 409.IPC, the prosecution must prove that one who is,

      in any manner, entrusted with the property, in this case as a Cashier of

      Block Development Office, Santipur dishonestly misappropriates the

      money, commits criminal breach of trust in respect of that money. In other

      words, in order to sustain conviction underSection 409, IPC two

      ingredients are to be proved: namely, i) the accused, a public servant or a

      banker or agent was entrusted with the property of which he is duty bound

      to account for; and ii) the accused has committed criminal breach of trust.

      What amounts to criminal breach of trust is provided underSection 405,

      IPC. The basic requirement to bring home the accusations under Section

      405 are the requirements to prove conjointly I) entrustment and ii) whether

      the accused was actuated by dishonest intention or not, misappropriated it

      or converted it to his own use to the detriment of the person who entrusted

      it.13.   It is contended on behalf of the accused/appellant that the prosecution has

      failed to prove the two essential ingredients ofSection 409IPC e.g. i) the
       factum of entrustment and ii) factum of misappropriation of the entrusted

      money.    In order to prove the entrustment and misappropriation the

      prosecution case is that the accused/appellant as Cashier received Water

      Tax amounting to Rs.14,70,186/- and fraudulently defalcated the said

      amount by fabricating bank's receipts on the Challans on different dates

      and made entries of the said amounts on the basis of false and fabricated

      Challans in the Cash Book.       To prove its case, the prosecution has

      examined P.W.2 Sanjoy Kumar Sarkar, the then Block Development

      Officer, Santipur., P.W.1 Dilip Kumar Golder, the then employee of State

      Bank of India, Ranaghat Branch, P.W.3 Debnath Gayen who was attached

      to the Ranaghat Treasury as Additional Treasury Officer during the period

      from 1995 to 1998, P.W.6 Barin Das Chowdhury who was the Chief

      Manager of State Bank of India, Ranaghat Branch during the period from

      1998 to 2000 and P.W.9 retired Inspector of Police Arun Kumar Das who is

      the Investigating Officer.14.   According to the statement of P.W.2 the accused/appellant was the

      Cashier in the office of the B.D.O., Santipur at the relevant point of time.

      He stated further that for depositing money from B.D.O. Office three filled

      in Challans in TR Form No.7 were issued and after depositing money to

      bank out of those Challans one was kept in the bank, one in the Treasury

      and one in their Office. The amount is always tendered to the bank by the

      Cashier and his name is entered in the Challans. Most of the Challans

      showing deposit of amount to bank were fabricated and in those Challans
       name of the accused was mentioned. The seal on the Challans was also

      forged.   Though the Challans showed that the amount was deposited to

      bank but actually the amount was not deposited to bank by the Cashier.

      The Bank Report showed that the seals on those Challans were not the

      seals of S.B.I., Ranaghat Branch. He identified the Challans which were

      marked Ext.3 collectively.In cross-examination P.W.2 stated that the Cashier used to collect Water

      Tax from the farmers.     He further stated that in case of receiving any

      money from any farmer towards Water Tax a receipt is issued from their

      office but he did not see any such receipt. He stated yet further that if any

      amount is received from any farmer the same is entered        into the Cash

      Book.     He disclosed further that although in the Challans name of

      B.N.Khan has been mentioned but no seal is there below his name since it

      is not required to be put. He made it clear that Cash can only be deposited

      to bank by the Cashier and no other person is empowered to deposit cash

      to bank. Since at the relevant time B.N.Khan (appellant) was the Cashier

      so he had the power to deposit cash in bank. In course of further cross-

      examination P.W.2 disclosed that as per the Job Chart issued to Cashier it

      was the main duty of the Cashier to collect cash from the farmers.15.   P.W.1 deposed that the S.D.O., Ranaghat came to their bank and produced

      some Challans before the Branch Manager for verification and on enquiry it

      was found that the amounts mentioned in those Challans were not

      deposited to their bank and it was also found that the signatures alleged to
       have been made by the employee of their bank and the seal of their branch

      were forged. He further deposed that police seized one seal in his presence

      under a seizure list on which he put his signature.16.   P.W.3 deposed that as per Government Rule if any money is received in

      B.D.O. Office, the Cashier will fill in three copies of Challans in T.R.Form

      No.7 and thereafter those Challans will be signed either by the B.D.O. or by

      the Joint B.D.O. and thereafter the same will be sent to Treasury where the

      same will be checked and endorsed by the Treasury Officer and thereafter

      the Cashier of B.D.O. Office will deposit the cash with those Challans to

      the bank. He further deposed that on verification of the Challans (Ext.3

      collectively) with the report of the bank it was found that the amount

      shown in those Challans was not deposited to the bank.In cross-examination he stated that as per Treasury Rules it is incumbent

      duty for the Cashier to fill up Challans in T.R.Form No.7 for depositing

      money to bank.17.   P.W.6 deposed that the Challans (Ext.3 collectively) are not genuine and

      the seals appearing on those Challans are all manufactured.

      In cross-examination he stated that he did not recommend for sending

      those Challans to any Expert for verification and that for the first time in

      Court he stated the fact that the Challsns (Ext.3 collectively) are not

      genuine.18.   P.W.9 deposed that during investigation he arrested the accused Baidya

      Nath Khan, examined the witnesses and recorded their statements underSection 161Cr.P.C. and seized the Joining Report of the accused Baidya

Nath Khan who was the cashier of Santipur B.D.O. Office at the relevant

point of time and the Cash Book from the said office under seizure lists.

He also visited Ranaghat Treasury Office and he seized Subsidiary

Registrar. He also seized the Challans under a seizure list. He asked a

Constable to collect the report of the Handwriting Expert and accordingly

he collected the said report. He identified the report, Challans, Cash Book

and the Seizure Lists and those were marked accordingly.

In cross-examination P.W.9 stated that he only sent the handwriting in the

relevant entries made in the Cash Book to the Handwriting Expert for

verification and report but he did not send signatures in the said Cash

Book.    The Cash Book was maintained for making entries in respect of

collection of Water Tax but in the Cash Book there is no mention that it

was only for the purpose of making entries in respect of collection of Water

Tax.    He further stated that since the Cash Book was not maintained

properly, therefore, there was no adherence of the rules for maintaining

Cash Book.    Whether the specific amount which was collected towards

Water Tax was debited or credited that was not mentioned and so he seized

the Cash Book finding irregularities therein. During the course of further

cross-examination he disclosed that he did not seize the Job Card in

respect of the accused Baidya Nath Khan and that he did not find the

name of the Tax Collector who collected Water Tax from public at large. He

stated yet further that the Water Tax was paid by the public individually to
       the office.   He did not find any receipt against which Water Tax was

      collected. He could not collect the entire Receipt Book or the counter parts

      thereof.19.   From    the   above,   there   can   be    no   manner   of   doubt   that   the

      accused/appellant was posted as Casier in Santipur B.D.O. Office during

      the relevant period and it was his responsibility as Cashier to receive cash

      and to collect Water Tax from the farmers and to deposit the same in the

      bank through Treasury by filling in Challans in T.R. Form No.7 and to

      make entry of the same in the Cash Book. Such fact is not disputed by the

      accused/appellant and no suggestion was put to the witnesses denying

      such fact.    It also goes undisputed that the Challans (Ext.3 collectively)

      were prepared by the accused/appellant and those bear his name as the

      person who tendered the money.            These challans also show that the

      tendered money was on account of realization of Water Tax and the head of

      account is "Minor Irrigation". The relevant entries in the Cash Book were

      also made by the accused. The Report of the Handwriting Expert (Ext.8)

      establishes such fact without leaving any room for doubt.         Such report

      further establishes that the imprint of the seal of the bank put on the said

      Challans is not genuine.20.   Notwithstanding the fact that the prosecution has proved the handwriting

      of the accused/appellant on the Challans, Cash Book etc. the accused

      when confronted with the evidence he did not deny such fact during his

      examination underSection 313Cr.P.C., Reference on this score may be
 made to the question Nos.4,6,8 and 15 and answers thereto given by the

accused which are reproduced hereunder:-Q.4- P.W.2 Sanjoy Kumar Sarkar stated in his evidence that on 18.11.98

he was posted as Block Development Officer, Santipur and at that time you

were Cashier in the office of the B.D.O., Santipur and during the period

1995 to 1998 many entries in the Cash Book were not made after receiving

money by the office, which as per procedure were required to be done, and

said money amounting more than 14,00,000/- was defalcated and after

consultation with Treasury Report such defalcation was detected. What do

you want to say in this regard?Ans.- I am innocent.Q.6.- P.W.2 also stated in hhis evidence that for depositing money from

B.D.O. office three filled in challans in T.R. Form No.7 were issued and

after depositing money to bank out of those challans one was kept in the

bank, one in Treasury and one in their office.   He also stated that the

amount is always tendered to the bank by the Cashier and his name is

entered in the challans. He also stated that most of the challsans showing

deposit of amount to bank were fabricated and in those challans your

name was mentioned. He also stated that the seal on the challans was

also forged and though the challans showed that the amount was

deposited to bank, but actually the same was not deposited to bank by

you. The Bank Report also showed that the seals on those challans were
 not the seals of S.B.I., Ranaghat Branch. What do you want to say in this

regard?Ans. I am innocent.Q.8.- P.W.3 Debnath Gayen in his evidence stated that during the period

1995 to 1998 he was attached to Ranaghat Treasury as Additional

Treasury Officer. He also stated that it is the Government rule that if any

money is received in B.D.O. office, the Cashiher will fill in 3 challans in

T.R. Form No.7 and thereafter the same will be sent to Treasury and the

Dealing Assistant of Treasury will check the same and then Treasury

Officer or Asistant Treasury Officer will put an endorsement threon and

after completion of all the formalities the Cashier of B.D.O. office will

deposit the cash with those challans to bank. He also stated that amongst

those three challans one is kept in the office of the B.D.O., one is kept in

Treasury and the other is kept in the bank. He further stated that all the

44 challans (Ext.3 collectively) bear the signature of the Treasury Officer

and on verification of the challans with the report of the bank it was found

that the amounts as shown in those challans were not deposited to bank.What do you want to say in this regard?Ans. I am innocent.Q.15.- P.W.9, I.O. of this case, deposed that he investigated this case,

arrested you, forwarded you to Court, took you to his custody as per order

of the Court. He also examined the employees of B.D.O. office, Santipur,

Treasury Officer of Ranaghat Treasury, seized your Joining Report being
       the Cashier of Santipur B.D.O. office at the relevant point of time, also

      seized Cash Book of Santipur B.D.O. office, also seized Subsidiary Register

      containing page Nos.1 to 89 from Ranaghat Treasury Office and also seized

      challans (Ext.3 collectively). He also stated that he asked the Constable to

      collect report of hand-writing Expert (Ext.8).          He also stated that after

      receiving complaint from B.D.O., Santipur he started this case against you.

      He also stated that the entries at page Nos. 1 to 89 of the relevant Cash

      Book (Ext.10) were made by you. What do you want to say in this regard?

      Ans. I am innocent.21.   Thus it is seen that the accused/appellant though did not admit in clear

      terms the factum of entrustment and misappropriation but equally he did

      not deny the same.       Such statements of the accused/appellant being

      coupled     with   statements    of    P.W.s.   noted    hereinabove    sufficiently

      established the entrustment of the money to the accused/appellant as

      Cashier of Block Development Office, Santipur. The documentary evidence

      adduced by the prosecution fully corroborated by the oral evidence

      adduced by the P.W.s. who are versed with the nature of duties of the

      appellant    has   established   the    factum    of    entrustment    as   well   as

      misappropriation beyond any shadow of reasonable doubt.22.   The law is well-settled on the point that once the entrustment of the

      property is proved, it is incumbent upon the accused to account for it, in

      terms of the mandate ofSection 106of the Indian Evidence Act which

      reads as follows:-"106. Burden of proving fact especially within knowledge.- When any fact is

      especially within the knowledge of any person, the burden of proving that

      fact is upon him."In the case of a public servant charged with misappropriation of monies,

      the element of offence of criminal breach of trust will be established if the

      prosecution proves entrustment of the monies which he was under a duty

      to account and had not done so.       If the failure to account was due to

      circumstances as pleaded by the accused in defence, then it is for the

      accused to explain them.     It is not the law that the prosecution is to

      eliminate all possible defences or circumstances which may exonerate the

      accused. If the facts and circumstances are within the knowledge of the

      accused then he has to prove them.           But in the instant case the

      accused/appellant has not offered any explanation in his defence           to

      account for the entrusted money far to speak of substantiating such

      defence by leading any evidence.23.   The fact that no Job Chart has been seized or produced showing the duties

      of the accused/appellant does not quell the fact that entrustment was

      made to the accused/appellant.      In my opinion the existence or non-

      existence of trust in any individual does not depend upon the use of legal

      terminology, but upon the actual facts of the particular case.24.   Coming to the contention that the prosecution has failed to prove that the

      Cash Book (Ext.10) was only for the purpose of making entry in respect of

      collection of Water Tax and that the entries therein were made by the
       accused/appellant, I find that there is no evidence on record so as to hold

      that in the office of B.D.O., Santipur, two separate Cash Books were kept

      and maintained and the entries relating to Water Tax receipts were to be

      made in a Cash Book other than the Ext.10. No such case was made out

      by the accused/appellant nor any such suggestion was put to P.W.2. Also

      he did not adduce any evidence to that effect. Thus it is clear that exhibit

      10 is the only Cash Book in which the relevant entries in respect of Water

      Tax collection was made and that too by the accused/appellant.25.   Regarding the contention made by the Learned Counsel appearing for the

      appellant that since the I.O. (P.W.9) did not disclose in his evidence that

      the standard and specimen writings/signatures of the accused/appellant

      were taken in course of investigation it cannot be said that the disputed

      writings/signatures are of the accused/appellant, I would like to say that it

      is true that the I.O.(P.W.9) omitted to mention such thing in his evidence

      but such omission on the part of the I.O. does not or cannot give any

      mileage to the appellant as from the ordersheet of the record of the Special

      Court Case No.5/2009 (G.R. Case No.703/98) it appears the I.O. submitted

      a prayer for taking handwriting of the accused Baidya Nath Khan on 07

      .01.1999 and that prayer was allowed and the specimen handwriting of the

      accused was taken in presence of the Learned Magistrate on 16.01.1999.26.   In so far as the order of sentence is concerned, I think that there is no

      further scope of showing any leniency.Section 409IPC enables the Court

      to award imprisonment for life or imprisonment up to 10 (ten) years along
       with fine. Therefore, considering the fact that the appellant being a public

      servant misappropriated a huge sum of money, the punishment awarded

      by the Learned Trial Court is on the minimum and cannot at all be said to

      be excessive.    As such I find no reason for interfering with the same.

      Accordingly, even on that score no relief can be granted to the appellant.27.   Consequently, by affirming and maintaining the judgment and order dated

      30.05.2013      and 31.05.2013 respectively passed by the Learned Trial

      Court in Special Court Case No.05 of 2009, the appeal stands dismissed.28.   The case record along with a copy of this judgment be sent back to the

      Learned Trial Court forthwith.29.   Criminal Section is directed to deliver urgent photostat certified copy of

      this judgment to the parties, if applied for, as early as possible.(Shib Sadhan Sadhu, J.)