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2012 Supreme(Cal) 947
High Court of Judicature at Calcutta
TOUFIQUE UDDIN, J.
In Re -Shibani Ruj
C.R.A. No. 323 of 1999
Decided On : 18-10-2012
For the Petitioner:Sandipan Ganguly, Devangan Bhattacharjee, Advocates.
For the Respondent:Kallol Mondal, Advocate.
In order to establish a case of criminal misappropriation under Section 409 IPC, the prosecution must prove beyond a reasonable doubt that the accused was entrusted with the property in his/her capacity as a public servant and that he/she committed a breach of trust in respect of such property.
Headnote:
{'KEYWORD': 'Criminal Misappropriation', 'SUBJECT': 'Breach of Trust by Public Servant', 'ACT SECTION LIST': 'IPC Section 409', 'SUMMARY': 'The court examines the ingredients of Section 409 IPC and finds that the prosecution failed to prove beyond a reasonable doubt that the appellant was entrusted with the property in her capacity as a public servant and that she committed a breach of trust in respect of such property.'}
Fact of the Case:
The appellant, a clerk in the Pension Section of the Treasury Office, was convicted of misappropriating Rs. 43820/- from the treasury by way of various mala fide activities.
Finding of the Court:
The court finds that the prosecution failed to prove beyond a reasonable doubt that the appellant was entrusted with the property in her capacity as a public servant and that she committed a breach of trust in respect of such property.
Issues: 1. Whether the appellant was entrusted with the property in her capacity as a public servant? 2. Whether the appellant committed a breach of trust in respect of such property?
Ratio Decidendi: 1. The prosecution failed to produce any documentary evidence to prove the entrustment of duties to the appellant. 2. The prosecution failed to examine material witnesses, such as the Accountant, the clerk-in-charge, and the Deputy Accountant, who were responsible for checking the pension bills. 3. The prosecution failed to submit the appellant's handwriting for verification by an expert.
Final Decision: The appeal is allowed, and the impugned judgment is set aside. The appellant is acquitted and released from bail bonds.
1. This appeal arose out of the judgment and order of conviction dated 20.8.99 passed by the learned Special Judge, Special Court, Berhampore, Murshidabad in special court case No. 2/97 convicting thereby the appellant under Section 409 of the IPC and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 10000/-in default R.I. for one year.
2. In the background of this appeal the fact in a nutshell is that one Shibani Ruj was posted as a clerk in the Pension Section of Treasury Office at Kandi, Murshidabad. She was entrusted with the job of preparing pension bills of the pension holders. As per the Treasury Rules the appellant prepared the bills and after preparing the bills the same were forwarded by her before the Clerk-in-charge and thereafter the same were checked and forwarded to the Accountant who after scrutiny forwarded the same to the Additional Treasury Officer and lastly after final scrutiny, cheques were prepared and signed by the Treasury Officer. She was posted there from 1993 to 1995 January. In February, 1995, she was withdrawn from the said Pension Section. After joining of the new Assistant to the Post of Clerk, he detected anomalies in the bills and found that the bills in May and June, 1995 of accused Kalpana Ghosh was enhanced to Rs. 1400/-though her actual pension was Rs. 400/-. The amount of pension was changed from time to time and it was raised upto Rs. 2400/-in place of Rs. 400/-only. The amount of pension bills of Narayani Mondal was also raised upto Rs. 1000/-though her actual pension was Rs. 517/-p.m. The accused Shibani Ruj misappropriated an amount of Rs. 43820/-from the treasury by way of various mala fide activities. The matter was brought to the notice of the SDO, Kandi and he directed Mr. B.C.Patra, WBCS Executive to enquire into the matter. He personally enquired into the matter and found anomalies in the pension bills. After perusal of the report of Sri Patra, the SDO, Kandi was pleased to hold from the report that a sum to the tune of Rs. 43820/-has been taken by mala fide activities of the accused persons.
3. Accordingly, he lodged an FIR before the O.C., Kandi P.S. On receipt of FIR, O.C. Kandi P.S. started Kandi P.S. Case No. 180/95 under Section 409/477A IPC. The accused Kalpana Ghosh admitted that the amount of Rs. 10000/-was overdrawn by her and she wanted to deposit Rs. 6000/-. Her prayer was allowed and she deposited Rs. 6000/-before the SBI, Kandi. After the completion of investigation, the Police submitted charge-sheet under Section 409/403/109 IPC against both the accused persons.
4. On hearing of both sides and on perusal of materials on record, charge under Section 409/420 IPC was framed against the accused Shibani Ruj. The contents of the charges were read over and explained to her and she claimed to be tried.
5. A separate charge was framed against the accused Kalpana Ghosh under Section 409/420/109 IPC. The charge was read over and explained to her and she claimed to be tried.
6. Needless to mention that accused Kalpana Ghosh was acquitted. To prove the case the prosecution examined 5 witnesses while none was examined on behalf of the defence side. However, the present appellant was examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of witnesses was denial of offence with a plea of false implication.
7. On hearing of both sides and considering the materials on record, the learned Judge, Special Court convicted the accused Shibani Ruj under 409 IPC and sentenced her to suffer R.I. for two years and to pay a fine of Rs. 10000/-with default clause.
8. Now the point for consideration is if the impugned judgment calls for any interference or not.
9. The appellant was convicted for commission of offence under Section 409 IPC. The ingredients of Section 409 IPC are as follows:
i) the accused must be a public servant; ii) he must have been entrusted in such capacity
