Toufique Uddin J.

This appeal was directed against the judgment and order of conviction dated 15.02.2002 and 16.02.2002 passed by Sessions Judge, Howrah in Special Case No. 2 of 1996 and convicting the appellants thereby for commission of offence under Section 409/34/120B of the Indian Penal Code.

The short background of this appeal is as follows:-

A written complaint was lodged by one S.K. Jharihat, Superintendent of Uluberia S.D. Hospital with O.C. Uluberia P.S. alleging misappropriation of Government money amounting to Rs. 5,77,000/- and odd during the period of February 1986 to July 1991. The West Bengal Audit Party audited the accounts of the Uluberia S.D. Hospital for the period from 02.02.1993 to 19.03.1993 and inspected the accounts for the period from 06.01.1986 to 19.01.1993. During such audit, the audit party detected misappropriation of Government money amounting to Rs. 5,77,000/- and odd in the accounts of the said hospital. At the relevant point of time one Dr. K.R. Chatterjee was the Superintendent of the hospital and the other accused persons namely, Desranjan Sengupta- U.D.C., Brojendra Nath Sarkar- U.D.C. and Biswanath Roy- L.D.C. were attached to the Accounts Department and were responsible for drawing and disbursing the bill amount. The said amount was misappropriated by the accused persons. On the basis of the complaint, Uluberia P.S. Case No. 12 dated 17.02.1994 was started against three accused persons viz. Desranjan Sengupta, Brojendra Nath Sarkar and Biswanath Roy. After completion of the investigation, charge sheet has been submitted against those accused persons and Dr. K.R. Chatterjee under Section 409/120B/34 of Indian Penal Code.

The Trial Court, on hearing of the both sides, framed charge against the accused persons. The contents of the charge, were read over and explained to the accused persons who pleaded not guilty and claimed to be tried.

To contest this case, the prosecution examined as many as 10 witnesses, while none was examined on the side of the defence. However, the accused persons were examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross-examination of the witnesses and the replies given at the time of examination under Section 313 of the Code of Criminal Procedure was the denial of offence with a plea of innocence.

On trial, the learned court below convicted the present appellants by the impugned judgment.

Now, the point for consideration is if the said judgment suffers from any material irregularity and calls for any interference or not.

Section 409/120B/34 of Indian Penal Code read as follows:-

1) Section 409 of I.P.C.- 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.

2) Section 120B of I.P.C.- Punishment of criminal conspiracy. – (I) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (II) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

3) Section 34 of I.P.C.- Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of