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High Court Of Calcutta
AJIT KUMAR SENGUPTA , M. N. RAY
JITENDRA NATH BOSE - Appellant
Versus
STATE - Respondent
C. A. 5 Of 1982
Decided On : 04/26/1990
CRIMINAL BREACH OF TRUST - JURISDICTION OF SPECIAL COURT - ENTITLEMENT OF GOVERNMENT PROPERTY - LUMPING UP OF GOVERNMENT AND NON-GOVERNMENT PROPERTIES IN THE CHARGE - PREJUDICE TO THE ACCUSED - ENTRUSTMENT - CUSTODIAN OF THE PROPERTY - DOMINIUM OVER THE PROPERTY - TRANSFER OF POSSESSION - DIRECT AND CIRCUMSTANTIAL EVIDENCE OF ENTRUSTMENT - MISAPPROPRIATION - SHORTAGE OF CASH - AUDITED REPORT - SECTION 114 OF THE EVIDENCE ACT - SEALING OF THE STRONG ROOM - CONFLICTING EVIDENCE - CASH VERIFICATION - SECTION 540 OF THE CODE OF CRIMINAL PROCEDURE (OLD) - CONFESSIONAL STATEMENT - SECTION 24 TO 28 OF THE EVIDENCE ACT - SECTION 342 OF THE CODE OF CRIMINAL PROCEDURE (OLD).
Fact of the Case:
The appellant, the Head Cashier of Calcutta State Transport Corporation, was convicted under Section 409 of the Indian Penal Code for criminal breach of trust. The prosecution alleged that the appellant was entrusted with the cash of the Corporation and that he had misappropriated a sum of Rs. 9,701.19. The appellant denied the charges and claimed that he was not entrusted with the cash and that he had not misappropriated any money.
Finding of the Court:
The court found that the prosecution had failed to prove that the appellant was entrusted with the cash of the Corporation. The court also found that the prosecution had failed to prove that the appellant had misappropriated any money. The court further found that the lumping up of government and non-government properties in the charge had prejudiced the accused.
Issues: 1. Whether the Special Court had jurisdiction to try the case. 2. Whether the prosecution had proved that the appellant was entrusted with the cash of the Corporation. 3. Whether the prosecution had proved that the appellant had misappropriated any money. 4. Whether the lumping up of government and non-government properties in the charge had prejudiced the accused.
Ratio Decidendi: 1. The Special Court did not have jurisdiction to try the case because the properties which were allegedly misappropriated were not government properties. 2. The prosecution failed to prove that the appellant was entrusted with the cash of the Corporation because there was no direct evidence of entrustment and the circumstantial evidence was not sufficient to establish entrustment. 3. The prosecution failed to prove that the appellant had misappropriated any money because there was no direct evidence of misappropriation and the circumstantial evidence was not sufficient to establish misappropriation. 4. The lumping up of government and non-government properties in the charge prejudiced the accused because it prevented him from properly defending himself.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and discharged the appellant from the bail bond.
( 1 ) THIS appeal is directed against the order of conviction and sentence of the appellant under S. 409 of the Indian Penal Code. The appellant was sentenced to suffer imprisonment for a period of one year and to pay a fine of Rs. 1,000/- in default, further rigorous imprisonment for three months. Two specific charges were framed-one under S. 409 of the Indian Penal Code for criminal breach of trust and the other under S. 5 (1) (c) read with S. 5 (2) of the Prevention of Corruption Act. The prosecution, however, did not press the second charge and, accordingly, it was expunged by the order of the learned Special Court dated 29/04/1975. The case therefore, proceeded under S. 409 of the Indian Penal Code.
( 2 ) SHORTLY, the case of the prosecution is that Jitendra Nath Bose, the accused was the Head Cashier of the Calcutta State Transport Corporation, Lake Depot, Calcutta. He is a public servant within the meaning of S. 21 (22) of the Indian Penal Code. He was in charge of the C. S. T. C. cash and the case was of three sorts. namely, (1) Main or General Cash comprised by the daily collections hereafter referred to as the Corporation Cash, (2) Co-operative Cash, and (3) Canteen Cash. The accused had exclusive dominion over all the cash. The cash receipts under different categories enumerated above were shown in the relevant Cash Books. On 12/06/1970, on a surprise check, the cash in custody of the accused showed the following shortfalls : (a) Main Cash rupees 9,701. 19p. , (b) Co-operative Cash rupees 36,373. 04 p. and (c) Canteen Cash rupees 7,541. 63 p. Another sum of Rs. 650. 00 interest-accrued on the Security furnished by an employee (in Postal Savings Certificate) should have been in the custody of the accused. It was not there. So the total amount found short was Rs. 54265. 86 p. On the basis of the aforesaid finding, charges were framed. The learned Judge has held that prosecution has failed to prove the embezzlement of Co-operative and Canteen Cash. The entrustment of Rs. 650/- was also not proved. He was, however, found guilty on the charge of shortage of C. S. T. C. Cash of Rs. 9,701. 19 p. Accordingly, he was convicted under S. 409 of the Indian Penal Code as aforesaid.
( 3 ) AT the hearing it has been contended that the Special Court has no jurisdiction to entertain and try the charges framed in respect of the properties which are
admittedly Government properties. It is therefore contended that the charges are liable to be set aside. To appreciate this contention it is necessary to set out the particulars of the amount involved in the said charge. The amount involved in the said charge is Rs. 54,265. 86p. , the details of which, as stated hereinbefore, are as follows : a ). Calcutta State Transport Corporation Cash rs. 9,701. 19p. b ). Co-operative Cash rs. 36,373. 04 p. c ). Canteen Cash rs. 7,541. 63p. d ). Interest in Postal Cash Certificate rs. 650. 00p. Rs. 54,265. 86 p.
( 4 ) OUT of the aforesaid four items which have been lumped up in the charge the amount shown in (b), (c) and (d) are not Government Properties. The cash of the Co-operative Society belongs to the shareholders and the Government has nothing to do with the same. Similarly, the Staff Canteen Cash is also the properties of the Staff and is not the property of the Government. Item No. (d) the amount of the interest is the property of Amal Kumar Chakraborty, P. W. 9.
( 5 ) THEREFORE, under the Criminal Law Amendment Act, 1949 (Special Courts Act), the Special Court had no jurisdiction to try the accused for alleged criminal breach of trust or misappropriation of the amounts stated in (b), (c) and (d) above.
( 6 ) FROM Sec. 4 (2) of the West Bengal Criminal law Amendment (Special Courts) Act, 1949 read with the Schedule it will be seen that the Special Court is competent to try only certain specified offences. In order to attract the jurisdiction of the Special Court, to try an offence under S. 409 of the Indian Penal
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