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2004 Supreme(Cal) 669
High Court Of Calcutta
P. N. SINHA
ACHINTYA RANJAN DAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. A. 46 Of 1992
Decided On : 10/01/2004
A public servant who makes false recommendations and facilitates the misappropriation of government funds by another person can be held liable for abetment of cheating and criminal breach of trust under sections 409, 420, and 109 of the Indian Penal Code.
Headnote:
CRIMINAL APPEAL - CRIMINAL BREACH OF TRUST AND CHEATING - ABETMENT - PUBLIC SERVANT - FORGERY - VAKALATNAMA - COMPENSATION AMOUNT - AWARD - PUBLIC MONEY - RECOMMENDATION - FALSE REPORT - SECTION 409, 420, 109 OF IPC - SECTION 167 (5) OF CR. PC - VIOLATION - LIMITATION - INVESTIGATION - COGNIZANCE - INTEREST OF JUSTICE - SENTENCE - REDUCTION - AGE - ILLNESS - SUFFERINGS - ENDS OF JUSTICE.
Fact of the Case:
The accused, a public servant, was convicted for criminal breach of trust, cheating, and abetment in relation to compensation amounts payable to awardees on the basis of forged power of attorney (vakalatnama). The accused, in collusion with the principal accused, filed false vakalatnamas and submitted forged reports recommending payment, leading to misappropriation of compensation funds.
Finding of the Court:
1. The prosecution established that the accused abetted the principal accused in committing cheating and criminal breach of trust. 2. The accused, as a public servant, had an obligation to submit a true report, but instead made false recommendations facilitating the principal accused's actions. 3. The accused indirectly cheated the government authority and induced the Special Land Acquisition Officer to deliver compensation amount to the principal accused. 4. Elements of sections 409, 420, and 109 of the Indian Penal Code (IPC) were established against the accused beyond reasonable doubt. 5. The accused's argument that provisions of section 167 (5) of the Code of Criminal Procedure (Cr. PC) were violated and investigation was not completed within the statutory period, leading to a bad taking of cognizance, was rejected. 6. The Supreme Court's decision in Nirmal Kanti Roy v. State of West Bengal was cited to clarify that the time schedule in section 167 (5) of the Cr. PC is not to be treated with rigidity and that the Magistrate must consider whether further investigation is necessary in the interest of justice.
Issues: 1. Whether the accused abetted the principal accused in committing cheating and criminal breach of trust. 2. Whether the accused's actions as a public servant facilitated the principal accused's misappropriation of compensation funds. 3. Whether the elements of sections 409, 420, and 109 of the IPC were established against the accused beyond reasonable doubt. 4. Whether the accused's argument regarding violation of section 167 (5) of the Cr. PC and bad taking of cognizance was valid. 5. Whether the accused's age, illness, and sufferings warranted a reduction in sentence.
Ratio Decidendi: 1. Abetment of cheating and criminal breach of trust was established based on the accused's actions in filing false vakalatnamas and submitting forged reports, facilitating the principal accused's misappropriation of compensation funds. 2. The accused's position as a public servant and his obligation to submit a true report aggravated his liability in the matter. 3. The elements of sections 409, 420, and 109 of the IPC were satisfied by the accused's actions, which directly led to the misappropriation of government funds. 4. The accused's argument regarding violation of section 167 (5) of the Cr. PC was rejected as the charge-sheet was submitted before the relevant amendment came into force, and the Supreme Court's decision in Nirmal Kanti Roy clarified that the time schedule in section 167 (5) is not to be treated with rigidity. 5. Considering the accused's age, illness, and sufferings, the sentence was reduced to one year and six months of rigorous imprisonment with a fine of Rs. 1000 for the offense under sections 409/420/109 of the IPC, and six months of rigorous imprisonment without fine for the offense under section 420 of the IPC.
Final Decision: The appeal was partly allowed. The conviction of the accused was upheld, but the sentence was reduced considering his age, illness, and sufferings.
( 1 ) BOTH the appeals are directed against the judgment and order of conviction dated 15. 12. 1992 passed by the learned Special judge, 1 st Special Court, Midnapore in Sessions Trial No. 2/96 thereby sentencing the accused appellants Ramendra Prasad Mukherjee (appellant of CRA No. 59/92) to suffer Rigorous Imprisonment of 7 years for offence under section 409 of the Indian Penal Code (in short IPC)and to pay a fine of Rs. 3,000/- in default to suffer Rigorous Imprisonment for one year. The said appellant was also sentenced to suffer Rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default to suffer Rigorous Imprisonment for six months for offence under section 420 IPC. The accused appellant Achintya Ranjan Das (appellant of CRA no. 46/92) was sentenced to suffer Rigorous Imprisonment for seven years and to pay fine of Rs. 3,000/- i. d. to suffer Rigorous Imprisonment for one year for offence under sections 409, 420, 109 of IPC He was further sentenced to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 1,000/- in default to suffer Rigorous Imprisonment for six months for offence under section 420 of IPC Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence the accused appellants preferred two separate appeals. A Division Bench of this Court by order dated 1. 4. 92 passed in Criminal Appeal No. 59/92 directed that this appeal shall be heard along with Criminal Appeal no. 46/92 and there was direction for preparation of a common paper book for both the appeals.
( 2 ) MR. Himanshu De, learned senior advocate appearing for the appellant Achintya Ranjan Das in CRA No. 46/92 submitted that the other appellant Ramendra Prasad Mukherjee, who preferred Criminal appeal No. 59/92 is dead. Though Mr. Dey was not the learned advocate for Ramendra Prasad Mukherjee who preferred CRA No. 59/92, he produced a certificate of death issued by the Midnapore Municipality to show that the appellant of CRA No. 59/92 Ramendra Prasad Mukherjee expired on 26. 8. 96 at his residence during pendency of the appeal. Accordingly, criminal appeal being CRA No. 59/92 is abated due to death of the appellant during pendency of the appeal.
( 3 ) THE prosecution case, in short, is that between 20. 7. 78 to 7. 1. 78 accused Ramendra Prasad Mukherjee, an advocate (since deceased), practicing in Midnapore Court by making false personification in collusion with the appellant Achintya Ranjan Das, KGO of L. A. Office (Haldia) at Tamluk committed criminal breach of trust and cheating in respect of compensation amount payable to the awardees on the basis of forged power i. e. 'vakalatnama'. The modus operandi of the accused persons appeared that the advocate accused filed petitions for withdrawal of compensation money against awards in favour of appropriate awardees by filing fictitious and forged vakalatnamas. Thereafter the said cases were enquired into by the KGO another accused Achintya Ranjan Das and in each case the said KGO submitted report that he contacted the party and recommended payment. Accordingly, payment voucher in each case was handed over to the said advocate Ramendra Prasad Mukherjee at Midnapore office but, subsequently the appropriate awardees complained to the additional SDO, Haldia that they did not execute any power or vakalatnama in favour of the said advocate accused and they did not receive any payment. The breach of trust, cheating and forgery was committed by the advocate accused Ramendra Prasad Mukherjee in collusion with the accused Achintya Ranjan Das, KGO.
( 4 ) DURING enquiry, it transpired that in claim No. 28 of 1978-79 the said advocate accused filed petition for withdrawal of Rs. 809. 60 being compensation amount against award/sl No. 231 in L. A. Case No. 11/ 1974-75 in favour of Gurupada Sen and submitted power on 15. 6. 78 and after enquiry the other accused, the KGO reported on same day that he contacted the parties and recommende
